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THE 


CODES  AND  STATUTES 


CALIFOENIA, 


AS  AMENDED  AKD  IS  TOSCX 


AT  THE  CLOSE  OF  THE  TWENTY-SIXTH  SESSION  OF  THE  LEGISUTUHE,  1885, 

With  Notes  Containinq  References  to  All  the  Decisions  of  the 

Supreme  Court  Construing  or  Illustrating  the  Sections  op 

the  Codes,  and  to  Adjudications  of  the  Courts  of 

Other  States  Having  Like  Code  Provisions, 

m 

FOUR  YOLUMES, 


F.  P.  DEERINQ, 

0/  the  San  Francisco  Bar, 


CIVIL  CODE. 


San  Francisco: 

BANCROFT-WHITNEY  CO. 

Law  Publishers  &  Law  Booksellers. 

1886. 


^^iOW|3> 


5 

Entered  according  to  Act  of  Congress,  in  the  year  1885^ 

By  a.  L.  BANCROFT  &  COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washingtoa 


SUMMARY  OF  CONTENTS. 


Konom 

TITLE  OF  CODE w  1 

PREUMINAllY  PKOVISIONS ,  2-21 

DIVISION  FIRST.    [Secs.  25-651.] 

EabtI.    persons 25-42 

II.    PERSONAL  RIGHTS 43-50 

ni.     PERSONAL  RELATIONS 55-276 

Title  I.     Makriaoe 55-181 

CuAi*.  I.     The  Contract  of  Marriage 65-80 

Art,  I.     Validity  of  Marriage 55-03 

II.     Authentication  of  Marriage 68-79 

III.     Judicial  Determination  of  Void  Marriages 80 

Chap.  II.     Divorce 82-148 

Aet.  L     Nullity 82-86 

IL     Dissolution 90-107 

III.  Causes  for  Denying  Divorce 11 1-130 

IV.  General   Provisions 136-148 

Chap.  IIL     Husband  an.l  Wife 155-181 

Title  II.     Parent  akd  Cuild 193-230 

CuAP.  L     By  Birth 193-215 

n.     By  Adoption 221-230 

Title  in.     Gdardian  and  Ward 23G-258 

IV.     Master  and  Servant 264-278 

Pabi  IV.    CORPORATIONS 283-651 

Title  I.     General  Provisions  Applicable  to  All  Corporations 283-403 

CuAP.  I.     Formation  of  Corporations 283-321 

Art.  I.     Corporations  I )Ltined,  and  how  Organized 28.3-300 

II.     By-laws,  Directors,  Elections,  and  Meetings 301-321 

Chap.  II.     Corporate  Stock 322-349 

Art.  L     Stock  and  Stockholders 322-327 

IL     Aascssinents  of  Stock 331-849 

Chap.  IIL     Corporate  Powers 354-393 

Art.  I.     General  Powers 354-302 

II.     Records 377,  378 

III.  Examination  of  Corporations. 382-384 

IV.  Judgment  against  and  Sale  of  Corporate  Property....  388-393 
CiiAP.  rV.     Extension  and  Dissolution  of  Corporation 399-403 

TnXK  II.     Insdrance  Corporatki.ns.   414-^51 

CuAP.  I.     General  Provisions 414-420 

II.     Fire  and  Marine  Insurance  Corporations 424-431 

IIL     Mutual  Life,  Health,  and  Accident  Insurance  Corporations..  4.".7^51 

Titlk  HI.    IIailroai>  Corporations 454-491 

iii 


StMMARY  OF  CONTENTS, 

Chap.  L     Officers  and  Corporate  Stock 454-lo9 

II.  Enumeration  of  Powers 465-478 

III.     Business,  how  Conducted 4(9-491 

Title  TV.     Stui  kt-Railroad  Corporations 407-51 1 

V.     Waoon-Road  Corporatio><s 512-523 

VI.     BiiiDOE,  Fkrry,  Wharf,  Chute,  and  Pier  Corporations 528-5.31 

VI  I.    Telegraph  Corporations 636-540 

VII  I.     "Water  and  Canal  Corporations 548-552 

IX.     Homestead  Corporations 557-566 

X.     Savings  and  Loan  Corporations 571-579 

XI.     ^Mining  Corporations 584-587 

XII.    Heligious,  Social,  and  Benevolent  Corporations 593-603 

X III.  Cemetery  Corporations 608-614 

XIV.  Agriccltctral-Fair  Corporations 6-20-622 

.  XV.    Gas  Corporations 628-032 

XVI.     Land  and  Building  Corporations 639-647 

XV'IL    Colleges  and  Seminaries  of  Learning 649-651 

DIVISION  SECOND.    [Secs.  G54-1422.] 

PaetL     property  IN  GENERAL - 654-749 

Title  I.    Nature  of  Property # 654-663 

II.     Ownership 669-742 

CuAP.  I.     Owners 669-C72 

II.     Modification  of  Ownersliip 6/8-726 

Art.  I.     Interests  in  Property 6/8-<03 

II.     Conditions  of  Ownership 707-711 

III.  Restraints  upon  Alienation 715-718 

IV.  Accumulations 722-726 

Chap,  III.     Rights  of  Owners 732,  733 

IV.     Termination  of  Ownership 739-/42 

Title  III.    General  Definitions 743,  749 

PaetIL     REAL  OR  IMMOVABLE  PROPERTY 755-871 

Title  I.     General  Provisions 75o 

II.     Estates  in  Real  Property 761-Sl  1 

Chap.  I.     Estates  in  General 761-781 

II.     Termination  of  Estates 789-793 

III.  Servitudes 80 1-81 1 

Title  III.    Rights  and  Obligations  of  Owners 818-841 

Chap.  I.     Rights  of  Owners 818-834 

Art.  I.    Incidents  of  Ownership 818-827 

II.     Boundaries 829-834 

Chap.  II.     Obligations  of  Owners 840,  841 

Title  IV.    Uses  and  Trusts 847-871 

V.     Powers  (repealed) 878-940 

Past  HI.     PERSONAL  OR  MOVABLE  PROPERTY 946-994 

Title  I.     Personal  Property  in  General. 9^6,  9 17 

II.  Particular  Kinds  of  Personal  Pbopebtt 953-994 

Chap.  I.     Things  in  Action. 953,  954 

II.     Shipping 960-973 

Art.  I.     General  Provisions 960-966 

IL     Rules  of  Navigation 970-973 

ClIAP.in.     Products  of  the  Mind 9S0-9S5 

IV.     Other  Kinds  of  Personal  Property 991-994 

PabtIV.    ACQUISITION  OF  PROPFJITY 1000-1422 

Title  I.    Modes  in  Which  Pboperty  may  be  Acquired 1000.  1001 

n.    Occupancy 1006,  1007 

III.  Accession 1013-1033 

iv 


NUMMARY  OP  CONTENTS. 

■nmnya 

Chap.  I.     Accession  to  Real  Property 101  ."5- 1019 

II.     Accession  to  Personal  Property 1 0'2.">- 1 0.'J.'i 

Title  IV,     Tranrfkr 10.?9  1-231 

Chap.  I.     Transfer  in  General l'»:^9- 1085 

Akt.  I.     l>efinition  of  Transfer lOr.0-1040 

II.     Wliat  may  lie  Transferred 104-!- 1047 

III.  Mo.lc  of  Transfer 10:)2-10.-,a 

IV.  Interpretation  of  Grants K«)l!-1072 

V.     niTeot  of  Transfer 10S.V10.S.5 

Chap.  IT.     Transfer  of  Real  Property lODl-l  1 1.') 

Art.  I.     Modeof  Transfer 100I-IO!)5 

II.     Ktiect  of  Transfer 1 104-  1 1 15 

Chap.  III.     Transfer  of  Personal  Property 1 1  .Sr>- 1 1  .')3 

Art.  I.     Mode  of  Transfer 1 1-'^.^',  1 1?'6 

II.  Wiiat  Operates  as  a  Transfer 1140-1112 

III.     Gifts 1 14G-1 1.-;3 

Chap.  IV.     Recoriling  Transfers 115S-I2I7 

Art.  I.     Wliat  may  be  Recorded ll.")S-liG5 

II.     Mode  of  Recording 1 100- 1 173 

III.  Proof  and  Acknowledgment  of  Instruments 1  ISO- 1207 

IV.  Effect  of  Recording,  or  the  Want  thereof 1213-1217 

Chap.  V.     Unlawful  Transfers 1227-1231 

Title  V.    Homestkaus 12;>7-12r)3 

Chap.  I.     General  Provisions 12.37-12G1 

11.     Homestead  of  the  Head  of  a  Family 12(!2-12G5 

III.     Homestead  of  Other  Persons 12GG- 1209 

Title  VI.    Wills 1j70-  1 377 

Chap.  I.     Execution  and  Pievocation  of  Wills 1270-1313 

II.  Interpretation  of  Wills 1317-13jI 

III.  General  Provisions 1.3.')7-1377 

Title  VU.     Succession- 13S3- 140S 

Vm.    Watek  Rights « 1410-1422 

DIVISION  THIRD.    [Secs.  1427-32G8.] 

PabtL    OBLIGATIONS  in  GENERAL 1427-ld43 

Title  I.     Definition  of  Obi.ioations 1427,  1423 

II.     Imterpretatiom  of  Obliuations 1429-1451 

Chap.  I.     General  Rules  of  Interpretation 1429 

II.  Joint  or  Several  Obligations 1430-1432 

IIL     Conditi(mal  Obligations 1434-1442 

IV.  Alternative  Obligations 144S-1451 

Title  ITT.    Transfku  op  Obligations H.')7-14G7 

IV.     Extinction  of  Oblioatioxs 147;5-K")43 

Chap.  L     Performance 147:i-1479 

II.     Offer  «>f  Performance 14S.>-lo05 

III.  Prevention  of  Performance  or  Offer 1''>1 1-1515 

IV.  Accord  and  Satisfaction 1521-1524 

V.     Novation 15.30-1533 

VL     Release 1541-1543 

PartH.     contracts 1540-1701 

Title  I.    Nature  of  a  CoyTRAcr 1549-  1G15 

€kap.  L     Definition 1549.  1.350 

IL     Parties. 1.55&- 1559 

III.  Consent. 15G5- 1589 

IV.  Object  of  a  Contract 159.V-I599 

V.     Consideration 1G05-IG15 

Title  II.    Majiner  of  Creating  Co^TRACTs 1G19-1G29 


r  SUMMARY  OP  CONTENTa 

BECTI0TT9 

Tnx,E  m.    IxTEnrRETATiox  OF  Contracts „ 1G;]J-1CGI 

IV.    Unlawful  Contracts 1GG7-If76 

V.     ExTiNCi ION  OF  Contracts 1G82-1701 

Chap.  I.     Contracts,  how  Extinguished 1682 

11.     llescissioii 1GS8-1G91 

III.     Alteration  and  Cancellation 1G!)7-1701 

Part  IH.    OBLIGATIONS  IMPOSED  BY  LAW 1708-1715 

Part  IV.    OBLIGATIONS  ARISING  FROM  PARTICULAR  TRANSACTIONS.  1721-.3268 

TitleL     Sale 17-21-1793 

Chap.  I.     General  Provisions ]7'21-17il 

Art.  h     Sale 1721,  1722 

II.     Agreements  for  Sale 1726-1734 

III.     Form  of  tlie  Contract 17:'.9-1741 

Chap.  IL     Rights  and  Ol)ligations  of  the  Seller 1748-1773 

Art.  I.     Riglits  and  Duties  before  Delivery 1748,  1749 

II.     Delivery 17:).V1753 

III.     Warranty... 17G.V1778 

Chap.  IIL     Riglits  and  Obligations  of  the  Buyer 17S4-17S6 

IV.     Sale  by  Auction 1792-1793 

Title  n.    Exciianoe 1S04-1S07 

III.     Deposit 1 S I .?- 1 873 

Chap.  I.     Deposit  in  General 1SI.V1827 

Art.  I.     Nature  and  Creation  of  Deposit 181.V1813 

II.     Obligations  of  the  Depositary 1S22-1827 

Chap.  II.     Deposit  for  Keeping 1S:):V-1S72 

Art.  I.     General  Provisions lS."r>-lS40 

IL     Gratuitous  Deposit 1844-1847 

III.  Storage IS-'^l -1855 

IV.  Innkeepers 1S:)9-1863 

V.     Finding 1864-1872 

Chap.  II.     Deposit  for  Exchange 1 873 

Title  IV.     Loan 1884-1920 

Chap.  L     Loan  for  Use 1884-1896 

IL     Loan  for  Exchange 1902-1906 

III.     Loan  of  Money 1912-1920 

Tttlk  V.     Hiring 192.-.-1959 

Chap.  I.     Hiring  in  General 1  JJ.V1935 

II.     Hiring  of  Real  Property 1941-1950 

HI.     Hiring  of  Personal  Property 195.V1959 

Title  VI.     Service .''. 19G:)-2079 

Chap.  I.     Service  with  Employment 19G5-2003 

Ai{T.  I.     Definition  of  Employment 1965 

IL     Obligations  of  the  Employer 19G9-1971 

IIL     Obligations  of  the  Employee 197.V1992 

IV.     Terminaticm  of  the  Employment ^ 1996-2003 

Chap.  II.     Particular  Employments 2009-2072 

Art.  I.     Master  and  Servant 2009-2015 

II.     Agents 201 9-2022 

III.  Factors 2026-2030 

IV.  Ship-masters 20:54-2044 

V.     Matesand  Seamen 2048-2066 

VL     Ships'  Managers 2070-2072 

Chap.  III.     Service  without  Employment 2078,  2079 

Title  VIL    Carriaoe 208.V2209 

CUAP.  L     Carriage  in  General 2085-2090 

IL     Carriage  of  Persons 2096-2104 

Art.  I.    Gratuitous  Carriage  of  Persons 2096 

U.    Carriage  for  Reward..,. .......,,..,... •...»♦*.-  2100-2104 


SUMMARY  OF  CONTENTS. 

SEOTIOlfS 

Chap.  III.    Carriage  of  Property ^  2110-2155 

Akt.  I.     General  Definitions 2110 

II.    Obligations  of  the  Carrier 2114-2121 

ni.     Billof  Lading 2126-2132 

IV.     Freightage 2136-2144 

V.     General  Average 2148-2155 

CSAT.  rV.     Carriage  of  Messages 2161,  2162 

V.     Common  Carriers 2168-2209 

Abt.  I.     Common  Carriers  in  General 2168-2177 

II.     Common  Carriers  of  Persons 2180-2191 

III.  Common  Carriers  of  Property 2194-2204 

IV.  Common  Carriers  of  Messages 2207-2209 

TnLEVrn.    Trust 2215-2289 

CH.iP.  I.     Trusts  in  General 2215-2244 

Art.  I.     Nature  and  Creation  of  a  Trust 2215-2224 

II.     Obligations  of  Trustees 2228-2239 

m.     Obligations  of  Third  Persona.    2243,  2244 

Chap.  II.     Trusts  for  the  Benefit  of  Third  Persons 22r)0-2289 

Art.  I.     Nature  and  Creation  of  the  Trust 2250-2254 

II.     Obligations  of  Trustees 2258-2263 

III.  Powers  of  Trustees. 2267-2269 

IV.  Rights  of  Trustees..... 227.V2275 

V.     Termination  of  the  Trust 2279-22S3 

VI.     Succession  or  Appointment  of  New  Trustees 2287-2289 

TrruJlX.    Agency 2205-2389 

Chap.  I.     Agency  in  General 22')5-2356 

Art.  I.     Definition  of  Agency 229.5-2300 

II.     Authority  of  Agents 2304-2326 

m.     Mutual  Obligations  of  Principals  and  Third  Persons. . .  23:50-2339 

IV.     Obligations  of  Agents  to  Third  Persons 2342-2345 

V.     Delegation  of  Agency 2349-2.351 

VL     Termination  of  Agency 2355,  2358 

Chap.  IL     Pwrticular  Agencies 2302-2.389 

Art.  L     Auctioneers 2362,  2363 

n.     Factoi-3 2367-2369 

III.  Ship-masters  and  Pilots 2373-2385 

IV.  Ships'  Managers 2388,  2389 

TXtusX.    Partnership 2.305-2520 

Chap.  I.     Partnersliip  in  General 2395-2418 

Art.  I.     What  Constitutes  a  Partnership 2395-2397 

IL     Partnersliip  Property 2401-2406 

in.     Mutual  Obligations  of  Partners. 2410-2413 

IV.     Renunciation  of  Partnership 24 1 7,  2418 

Chap.  II.     General  Tartuership 2424-2471 

Art.  I.     Wliat  is  a  General  Partnership 2424 

IL     Powers  and  Authority  of  Partners. 2428-2431 

ni.     Mutual  Obligations  of  Partners 243.V2438 

IV.     Liability  of  Partners 2442-2445 

V.     Termuiation  of  Partnership 2449  2454 

VI.     Liquidation 2458-2462 

VII.     Of  tlio  Use  of  Fictitious  Names 2460-2471 

,Chap.  ITL     Special  Partnership 2477-2510 

Art.  I.     Formation  of  Partnership 2477-2485 

II.     Powers,  Rights,  and  Duties  of  the  Partners 24S9-249« 

in.     Liability  of  Partners 2500-2503 

IV.  •  Alterati.iu  and  Dissolution 2507-2510 

Chap.  rV.     Mining  Partnerships 2511-2520 

l^nut  XI.     LssDRANCK 2.V.'7-2768 

CuAP.  L     In  General 2527-2049 

vii 


SUMMARY  OF  CONTENTS. 

noTtom 

Abt.  I.    Definition  of  Insurance 2527 

IL     Wliat  may  be  Insured 2531-2534 

III.  Parties  to  the  Contract 2538-2542 

IV.  Insurable  Interest 2540-2558 

V.     Concealment  and  Representation 2561-2583 

VI.     The  Policy 2586-2599 

VII.     Warranties 2603-2612 

VIII.     Premiums 2616-2622 

IX.    Loss 2626-2629 

X.     Noticeof  Loss 2633-2637 

XI.     Double  Insurance 2641,  2642 

XII.     Reinsurance 2G46-2649 

Chaf.  n.     Marine  Insurance 2655-2746 

Abt.  I.     Definition  of  Marine  Insurance 2655 

n.     Insurable  Interest 2659-2665 

IIL     Concealment 2669-2672 

rV.     Representations 2676-2677 

V.     Implied  Warranties 2681-2688 

VI.     The  Voyage,  and  Deviation 2692-2697 

VIL    Loss 2701-2712 

VIII.     Abandonment 2716-2732 

IX.     Measure  of  Indemnity 2736-2746 

Chap.  III.     Fire  Insurance. 2753-2756 

IV.  Life  and  Health  Insurance 2762-2766 

Title  XII.    Indemnity 2772-2781 

XIIL    Guaranty 2787-2866 

Chap.  I.     Guaranty  in  General 2787-2825 

Aet.  I.     Definition  of  Guaranty 2787,  2788 

II.     Creation  of  Guaranty 279?-2795 

III.     Interpretation  of  Guaranty 2799-2802 

rV.     Liability  of  Guarantors 2806-2810 

V.     Continuing  Guaranty 2814,  2815 

n.     Exoneration  of  Guarantors 2819-2825 

Chap.  II.     Suretyship 2831-2866 

Aet.  I.     Who  are  Sureties 2831,  2832 

IL     Liability  of  Sureties 2836-2840 

III.  Rights  of  Sureties , 2844-2850 

IV.  Rights  of  Creditors 2854 

V.     Letter  of  Credit 2858-2866 

TiTLB  XTV.    Lien 2872-3080 

Chap.  I.     Liens  in  General 2872-2913 

Abt.  I.     Definition  of  Liens 2872-2877 

IL     Creation  of  Liens 2881-2884 

m.     Effect  of  Liens 2888-2892 

IV.     Priority  of  Liens 2897-2899 

J.     Redemption  from  Lien 2903-2905 

Vi.     Extinction  of  Liens 2909-2913 

Chap.  IL    Mortgages 2920-2972 

Abt.  I.    Mortgages  in  General 2920-2942 

ri.     Mortgages  of  Real  Property 2947-2952 

IIL     Mortgages  of  Personal  Property 2955-2972 

Chap.  m.     Pledge 2986-3011 

IV.     Bottomry 3017-3029 

V.  Respondentia 3036-3040 

VL     Other  Liens 3046-3060 

VIL     Stoppage  in  Transit 3076-3080 

TlTlJE  XV.    Negotiable  Instruments 3086-3261 

Chap.  I.     Negotiable  Instruments  in  General 3086-3161 

Aet.  L    General  Definitions ,^-  ,....  3086-3095 

viii 


SUMMARY  OP  CONTENTS. 

tKcnora 
Abt.  II.     tnteqiretation  of  Negotiable  Instrumenta ./».»,.  3099-3104 

III.  Indorsement 310S-3125 

IV.  Presentment  for  Payment 3130-3137 

V.     Dishonor 3141-3151 

VI.     Excuse  of  Presentment  and  Notice 3155-3160 

VII.     Extinction 3164 

Chap.  n.     Bills  of  Excliange 3171-3238 

Abt.  I.     Form  and  Interpretation  of  a  Bill 3171-3177 

II.  Daysof  Grace 3181 

m.     Presentment  for  Acceptance 3185-3189 

IV.     Acceptance 3193-3199 

V.  Acceptance  or  Payment  for  Honor 3203-3207 

VI.     Presentment  for  Payment 3211-3214 

VII.     Excuse  of  Presentment  and  Notice 321 8-3220 

VIII.     ForeignBills 3224-3238 

Chap.  III.     Promissory  Notes 3244-3248 

IV.    Checks 3254,3255 

V.     Bonds,  Banks,  Notes,  and  Certificates  of  Deposit. 3261 

TitlkXVL    General  Provisions •••».,  3268 

DIVISION  FOURTH.    [Secs.  3274-3543.] 

PabtI.    RELIEF 3274-3423 

Title  I.     Relief  in  General 3274,  3275 

II.  Compensatory  Relief 3281-3360 

Chap.  I.     Damages  in  General 3281-3294 

Art.  I.     General  Principles 3281-3283 

II.     Interest  as  Damages 3287-3290 

m.     Exemplary  Damages 3294 

Chap.  II.     Measure  of  Damages 3300-3360 

•  Art.  I.     Damages  for  Breach  of  Contract 3300-3319 

II.     Damages  for  Wrongs 3333-3341 

III.  Penal  Damages 3344-3348 

IV.  General  Provisions 3353-3360 

TxtlbITT.    Specific  and  Prkventivk  Relief 3366-3423 

Chap.  I.     General  Principles 3366-3369 

II.     Specific  Relief 3375-3414 

Art.  I.     Possession  of  Real  Property 3375 

II.     Possession  of  Personal  Property 3379-3380 

III.  Specific  Performance  of  Obligations. 3384-3395 

IV.  Re-vision  of  Contracts 3399-3402 

V.     Rescission  of  Contracts 3406-3408 

VI.  Cancellation  of  Instruments 3412-8414 

Chap.  IIL     Preventive  Relief 3420-3423 

Part  U.    SPECIFIC  RELATIONS  OF  DEBTOR  AND  CREDITOR 3429-3473 

TitleL     General  Principles 3429-3433 

II.       FRAODCLENT    iN.STRnMENTS   AND   TRANSFERS 3439-3442 

III.  Assignments  for  tub  Benefit  of  Creditors 3449-3473 

PabtIIL    NUISANCE 3479-3503 

Title  I.     G  kneral  Principles 3479-3484 

II.     Pu BLio  Nuisances 341)0-3495 

III.     Pkivatk  Ndisances 3501-3503 

PabtIV.    maxims  of  JURISPRUDENCE ^^ 3509-3543 

iz 


CIVIL  CODE. 


An  Act  to  Establish  a  Civil  Code^ 

[Approved  March  21, 1872.] 

TITLE  OF  THE  ACT. 

1.  Title  and  divisions  of  this  act. 

Section  1.     This  act  shall  be  known  as  The  Civil  Code  or  the  State  of  Cazj- 
roBNiA,  and  is  in  four  divisions,  as  follows: 

I.  The  First  Relating  to  Persons 25 

II.  The  Second  to  Property C54 

III.  The  Third  to  Obligations 1427 

IV.  The  Fourth  Contains  General  Provisions  Relating  to  the  Three 

Preceding  Divisions 3274 

The  four  codes  are  four  statutes;  each  is  amendments  to  any  section  thereof  are  to  be 

a  single  act:  IJarle  v.  Board  of  Education,  55  regarded  as  amendments  of  the  wliole  act:  C?. 

Cal.  4S9.     The  whole  code  is  to  be  construed  P.  R.  R.  v.  Sharkd/ord,  63  Id.  2G1. 
together  as  in  the  case  of  a  single  statute;  and        Act  how  cited:  See  sec.  21,  post, 

PRELBHNARY  PROVISIONS. 

2.  When  code  takes  effect. 

Sec.  2.     This  code  takes  effect  at  twelve  o'clock,  noon,  on  the  first  day  of 
January,  eighteen  hundred  and  seventy-three. 

Effect  of  codes  generally:  See  sees.  4478    ing  that  session  are  repealed,  except  acts  amend- 
et  seq.  of  the  Pol.  Code.  atory  of  or  carrying  into  effect  the  codes:  Mitch' 

Laws   passed   at  the  same  session   at    ell  v.  Cronhn,  4(5  Iil.  97. 
which  the  codes  were  adopted  prevail  over        Similar  provision  in  other  codes  of  Cal- 
the  codes:  Ddhcockw  Goodrich,  47  Cal.  4SS;  and     ifonaia:  See  sec.  2  thereof. 
eec  Exparte  A'^civtou,  53Ii\.  512.  But  under  sec-        Effect  of  this  code:  See  subsequent  soca. 
tion  381)1  of  the  Political  Code,  declaring  that     3-19,  inclusive,  and  see  those  sections  and  tha 
with  respect  to  provisions  concerning  the  reve-     notes  tlicreto  r.s  found  in  tiie  Pol.  Code, 
nue  the  code  is  to  be  considered  as  if  passed  on         Publication  of  the  codes:  See  sec.  4494  ol 
the  last  day  of  the  session,  all  acts  passed  dur-     the  Pol.  Code. 

3.  Not  retroactive. 

Sec.  3.  No  part  of  it  is  retroactive,  unless  expi'essly  so  declared. 
.Retroactive  effect:  ^cq  supra,  note  to  sec-  active  oi)eration  must  often  reat  on  constmctiotv 
tion  2.  Not  only  is  the  code  to  have  a  future  as  in  applying  a  measure  of  '^.amagea  to  con- 
operation,  except  where  otherwise  enpressly  version  committed  before  the  measure  was 
declared,  but  amendments  to  the  code  receive  provided:  Tullet/  v.  Tranor,  53  Cal.  274;  or 
a  similar  construction,  and  are  not  retroactive:  determining  what  rate  of  interest  prevailed 
C.  P.  P.  R.  V.  Shackelford,  G'i  Cal.  201;  Sharp  upon  theadoptiou  of  the  code:  Dunnev.Maslick, 

V.  Blankenship,  59  Id.  268;   Uibtniia  S.  d;  L.  50  Id.  244. 

Boc.  V.  Jordan,  56  Id.  297.  Cileil  and  applied  to  requirements  in  sections 

What  is  an  express  declaration  of  an  inten-     1493  and  1500  of  the  Code  of  Civil  Procedure, 

tion  to  give  a  section  or  amendment  a  retro-    in  regard  to  presentation  of    claims  against 

Civ.  CJODB— 1  I 


14-6 


PRELIMINARY  PROVISIONS. 


decedents,  in  Hibemia  S.  tt  L.  Soc.  v.  Hayes,  adverse  holding:  Sharp  v.  BlankensMp,  59  Id. 

56  Cal.  297;   so  also  in  regard  to  the  amend-  288;  C.  P.  R.  R.  Co.  v.  Shackelford,  G3  Id.  2G1. 

inent  to  section  325,  Code  of  Civil  Procedure,  Impairing  vested  rights:  See  sec.  8  of  the 

requiring  payment  of   taxes  to  make  a  good  Pol.  Code,  and  note. 

4.    Construction  of  thvi  code. 

Sec.  4.     The  rule  of  the  common  law,  that  statutes  in  derogation  thereof  are 

to  be  strictly  construed,  has  no  application  to  this  code.    The  code  establishes 

ithe  law  of  this  state  respecting  the  subjects  to  which  it  relates,  and  its  pro- 

■  visions  and  all  proceedings  under  it  are  to  be  liberally  construed,  with  a  view 

to  effect  its  objects  and  to  promote  justice. 

This  section  changes  the  common-law    through  all  the  provisions  of  this  code.     The 


;  rule  which  was  in  force  in  this  state  prior  to 

the  adoption  of  the  codes:  IlotaUng  v.  Cronlse, 

■  2  Cal.  CO;  People  v.  Biiskr,  11  Id.  215;   Turner 

V.    Tuolumne   Water  Co.,  25  Id.  397;  Piiia  v. 

.  Peck,  31  Id.  359.     See  also  the  construction  of 

.  this  section  in  Estate  of  Appel,  5  West  Coast 

Rep.  518. 

The  explanation  for  this  departure  from 
the  common-law  rule  is  found  in  the  following 
-  statement  by  the  code  commissioners,  appended 
as  a  note  to  section  4  of    this  code:    "How- 
ever sound  may  be  the  arguments  in  favor  of 
this  rule  [the  old  rule]  when  applied  to  ordi- 
nary acts  of  the  legislature,  it  is  apparent  that 
it  would  be  improper  to  apply  it   in   all   its 
severity  to  a  system  of  laws  intended,  in  a  preat 
.measure,  to  take  the  place  of  the  common  law, 
-and  having  in  view,  as  its  leading  object,  the 
.  furtherance  of  justice  and  a  disregard  of  techni- 
.  cal  strictness.     The  i)rovision3  of  such  a  s^'stem 
■ought  to  be  construed  in  the  same  manner  and 
with  like  force  and  efifect  as  they  would  be  were 
the  pi-inciples  enunciated   resting  in  the   un- 
•  •written  law;  and  it  was  to  this  end  that  the  sec- 
liou  lias  been  made  a  part  of  each  of  the  codes." 
So  alio  in  their  note  to  this  same  section,  as 
found  ill  the  Code  of  Civil  Procedure,  the  code 
commissioners,  referring  to  the  rule  of  strictly 
construing  penal  statutes  and  statutes  i:»  dero- 
gation  of   the   common   law,    say:    "Without 
stopping  to  inquire  Iiow  far  this  principle  is 
applicable  to  statutory  provisions  prescribing, 
for  example,  the  time  within  which  a  particu- 
•-dar  act  must  be  done  (which  was  the  case  in  the 
instance  referred  to),  it  certainly  sliould  not 
apply  in  all  its  severity  to  a  system  of  regula- 
.tion  having  in  view  as  its  sole  object  the  fur- 
therance of  justice  and  a  disregnrd  of  technical 
strictness.     This  is  the  great  principle  running 


chief  design  and  the  merit  of  the  code,  if  it  has 
any,  is  its  attempt  to  make  the  attainment  of 
justice  the  paramount  object,  and  the  use  of 
forms  mere  auxiliaries,  which,  when  they  come 
in  conflict  with  the  ends  of  justice,  are  to  be 
relaxed.  This  section  was  intended  to  obviate 
much  of  the  difficulty  under  which  courts  have 
labored,  and  to  render  the  code,  instead  of  a 
rigid  and  unbending  statute,  as  construed  by 
some,  a  rule  of  procedure  susceptible  of  easy 
adapation  to  the  purposes  of  justice  which  it 
alone  has  in  view.  See  the  opinion  of  Justice 
Cope,  Jones  v.  Steamship  Cortes,  17  Cal.  487; 
see  also  Lucas,  Turner  <£•  Co.  v.  Payne  d;  Dewey, 
7  Id.  92;  Wardx.  Severance,  Id.  126;  Chamber- 
lain V.  Bell,  Id.  292." 

A  liberal  rather  than  strict  construction 
is  also  demanded  by  the  Penal  Code,  section 
4,  evidencing  the  general  design  of  the  commis- 
sioners to  abrogate  the  old  rules  of  strict  con- 
struction: Ex  parte  Gutierrez,  45  Cal.  429; 
People  V.  Mortimer,  46  Id.  117;  People  v.  Soto, 
49  Id.  07.  But  statutes  in  contravention  of  the 
common  law  are  not  to  be  extended  hy  construc- 
tion, as  it  is  not  to  be  presumed  that  the  legis- 
lature intended  to  make  an  innovation  on  the 
common  law  farther  than  the  case  absolutely 
requires;  Brown  v.  Fifield,  4  Mich.  322;  John- 
son V.  Jlahn,  4  Xeb.  144. 

A  statute  in  aflBrmance  of  the  common 
lavT  is  to  be  construed  as  was  the  rule  by  that 
law:  Baker  v.  Baker,  13  Cal.  87. 

"With  view  to  promote  justice Applica- 
tions of  this  clause:  Paige  v.  Carroll,  61  Cal. 
215:  S.  C.,Id.  211. 

Construction  of  codes  -with  relation  to 
eaoh  other,  and  reconciling  conflicts  between 
titles,  chapters,  and  articles:  See  sees.  4478  et 
seq.  of  the  Pol.  Code. 


Sec.  5.  The  provisions  of  this  code,  so  far  as  they  are  substantially  the 
■same  as  existing  statutes  or  the  common  law,  must  be  construed  as  contiuua- 
itions  thereof,  and  not  as  new  enactments. 


New  eaaotments. — The  codes  were  Iraincd 
■with  a  view  to  a  complete  system  of  law,  de- 
signed, however,  to  disturb  the  existing  state 
•of  things  as  little  as  possible,  and  not  to  impair 
vested  rights.  The  foregoing  section  is  one  of 
several  expressive  of  this  design.  It  has  been 
considered  in  connection  with  the  snccee;Uug 
section  with  reference  to  the  effect  of  the  codes 
wpon  tenure  of  office:  Pnople  v.  Bisvell,  49  Cal. 
407,  the  inspector  of  gas  meters'  case. 

6.  Actions,  etc.,  not  affected. 

Sec.  6.    No  action  or  proceeding  commenced  before  this  code  takes  effect, 
and  no  right  accrued,  is  affected  by  its  provisiona. 


Ravival  by  repeal. — "The  Political  Coda 
contains  a  general  provision  that  the  repeal  of 
existing  statutes  aliall  not  revive  any  law  here- 
tofore repealed  or  suspended,  nor  any  otfice 
heretofore  abolished,  and  tlierefore  such  a  pro- 
vision has  not  been  incorporated  herein:  See 
People  V.  Cray  croft,  2  Cal.  243:"  Code  Com- 
missioners' note.  The  section  referred  to  is 
section  IS  of  that  code. 


PRELIMINARY  PROVISIONS. 


§8 


The  corresponding  section  in  the  Political 
Code  and  Code  of  Civil  rrooediire  reads  as 
follows: 

"Si:c.  8.  No  action  or  proceeding  com- 
menced before  this  code  takes  eifect,  and  no 
riglit  accrued,  is  affected  by  its  provisions,  but 
the  proceedings  therein  must  conform  to  the 
requirements  of  this  code  as  far  as  appli- 
cable." 

Effsct  of  codss  on  pending  action. — The 
'sufficiency  of  proceedings  taken  bef(jre  the  code 
went  into  operation  must  be  determined  l)y  the 
law  in  force  tlien,  and  by  no  other  rule:  Caul- 
fteld  V.  Doe,  45Cal.  221,  223;  Hancock  \\  Thorn, 
4G  Id.  Gl3.  The  procedure  upon  a  motion  for 
a  new  trial,  notice  of  which  had  been  given 
before  January  1,  1873,  was  rc([uired  to  be 
accorditig  to  the  practice  act  tlien  in  force: 
Macy  V.  Davila,  48  Id.  G47;  but  the  procedure 
upon  such  motion  where  the  notice  had  been 
served  after  the  codes  went  into  effect  was 
determined  to  be  that  prescribed  by  the  code: 
Kelly  V.  Larkin,  47  Id.  58.  A  similar  con- 
struction has  been  given  to  the  insolvency  law 
of  California  of  1880.  Strutven  v.  Creditors,  02 
Id.  45,  decides  that  although  the  proceedings 
in  insolvency  may  have  been  commenced  umler 
the  act  of  1832,  yet  all  pleadings  liled  after 
the  passage  of  the  new  act  must  conform  to  its 
requirements.  The  evident  object  of  the  section 
is,  not  to  interfere  with  any  vested  rights,  and 
to  render  uniform  so  far  as  may  be  the  course 
of  procedure  in  pending  proceedings.  McMlnii 
V.  i^MN-,  31  Id.  122,  illustrates  what  this  section 
was  designed  to  obviate.  The  act  repealing 
the  forcible  entry  and  detainer  laws  was  by 
a  .subsequent  enactment  altered  so  as  not  to 
affect  actions  commenced  under  the  repealeil 
law.  As  a  general  rule,  tlie  procedure  is  gov- 
erned by  the  new  law:  Bishop's  Written  Law, 
sec.  171). 

Vestod  riglits. — It  is  an  admitted  principle 
that  vested  rights  cannot  be  destroyed  or  im- 
paired; but  to  state  a  precise  rule,  defining 
what  rights  are  vested,  is  a  task  of  some  dilh- 
cuUy.  The  various  decisions  present  illus- 
trations of  what  have  fallen  within  the  mean- 
ing of  the  term,  but  few  have  attempted  a 
comprehensive  definition.  As  Cooley  says: 
"  In  its  application  as  a  shield  of  protection, 
the  term  'vested  rights'  is  not  used  in  any 
narrow  or  technical  sense,  or  as  importing  a 
pou'cr  of  legal  control  merely,  but  rather  as 
implying  a  vested  interest  which  it  is  right  and 
equitable  that  the  government  should  recog- 
nize and  jirotect,  and  of  which  the  individual 
CDuld  not.  be  deprived  arbitrarily  without  injus- 
tice:" Coolcyon  Const.  Lim.3J8.  The  following 
gcner.d  statement  is  believed  to  he  supported 
by  adjudg  ;d  cases:  To  render  a  law  ob.ioxious 
to  the  obj  ction  that  it  impairs  vested  rights, 
it  is  not  necessary  that  tlu  act  of  the  legisla- 
ture should  i.nport  an  actu..l  destruction  of  the 
right.  The  test  is  not  so  much  in  t!ie  extent 
of  the  change  as  in  the  character  thereof.  If 
the  act  postpones  or  accelerates  tlie  period  of 
perfoiTuance  of  a  contract,  imposing  conditions 
not  expressed  therein,  or  dispensing  witli  any 
of  those  stipulated,  it  is  within  the  jiroliibi- 
tion:  On  en  v.  Bidille,  8  Wlieat.  1;  lUcCrarken 
V.  llayward,  2  How.  COS;  Planters'  Bank  v. 
Sharp,  G  Id,  301;  Wa'ker  v.  Whitehmd,  IG 
Wall  314;  Lap^ley  v,  Bra.shear.%  4  Litt.  47; 
Ednioiuion  v.  Ferjtvson,  11  Mo.  344;  Winter  v. 
Jones,  10  Ga.  190;    Toansend  v.   Townsend,  J 


Peck.  1 ;  Bohinaon  v.  Magee,  9  Cal.  81 ;  People 
v.  Pond,  10  Id.  5G3;  McAvley  v.  Brooks,  IG  Id. 
11.  A  legislative  grant  cannot  be  impaired  by 
a  subsequent  act  of  the  legislature:  Jennison  v. 
Planters'  Bank,  23  Ala.  1G8;  Tenn.  d:  (,'.  P.  U. 
Co.  V.  Moore,  30  Id.  371;  Montgomery  v.  Kas- 
sou,  10  Cal.  189;  O'rogan  v.  San  Francisco,  18 
Id.  oOO;  Trustees  v.  Bradbury,  2G  Am.  Dec. 
515;  and  this  is  so  whether  the  grant  be  to  an 
individual  or  to  a  corporation.  But  the  fact 
that  subsequent  legislation  has  diminished  the 
value  of  a  franchise  does  not  make  the  act 
liable  to  the  objection  being  discussed:  Charles 
Iliver  Bridqe  v.  Warren  Bridge,  11  Pet.  42'J; 
Curtis  V.  Whitney,  13  Wall.  08. 

Tbe  legislature  cannot  revive  a  claim 
barred  Iiy  the  statute  of  limitations:  Wright 
V,  Oakley,  5  Met.  400;  Battles  v.  Forbes,  18 
Pick.  532;  Kinsman  v.  Cambridge,  121  Mass. 
558;  Rockport  v.  Wulden,  54  N.  H.  107;  At- 
kinson v.  Dunlap,  50  Me.  Ill;  Davis  v.  Minor, 
1  How.  (Miss.)  183;  Jlicks  v.  Steigleman,  49 
Miss.  377;  Chandler  v.  Chandler,  21  Ark.  95; 
Bradford  v.  Strine,  13  Fla.  393;  Coady  v. 
Reins,  1  Mont.  T.  424;  Baldro  v.  Tomlie,  1  Or. 
170;  Rogers  v.  Handy,  24  Vt.  620;  Wires  v. 
Farr,  25  Id.  41.  A  statute  allowing  a  creditor 
to  reileem  at  any  time  within  two  years  after  the 
sale  under  a  mortgage  made  prior  to  tiie  pasb- 
ing  of  tlie  statute  is  void:  Orantly  v.  Eicing,  3 
H<jw.  707;  Howard  v.  Bugbee,  24  Id.  401; 
JIalony  v.  Fortune,  14  Iowa,  417;  Robinson  v. 
Howe,  13  Wis.  341 ;  yet  different  views  are  en- 
tertained in  Iverson  v.  Shorter,  9  Ala.  713; 
Freehorn  v.  Pettibone,  5  Minn.  277.  And  in 
Tuolumne  Co.  v.  Sedgwick,  15  Cal.  515,  it  was 
said  that  tlie  right  to  redeem  property  sold 
under  execution  pertains  solely  to  the  remedy, 
and  is  under  legislative  control. 

Remedial  rights,  -when  ve«  ted.  —  The 
legislature  is  not  bound  to  continue  the  same 
forms  and  the  same  system  of  couitsi  and  pro- 
ceedings for  the  accommodation  of  I'cbtors  or 
creditors;  it  has  the  power  to  regilvte  legal 
proceedings:  Rathlwncv.  Bradford,  1  .e\la.  312; 
Stoddart  v.  Smith,  5  Biun.  355;  V'.inzant  v. 
Waddt'l,  2  Yerg.  200;  Livingston  v.  Moore,  7 
Pet.  4G9;  Mai/nes  v.  Moore,  10  lud.  IIG;  flop- 
kins  V.  Jones',  22  LI.  310;  ]Vcbb  v.  Moore,  25 
Id.  4;  Smith  v.  Bmyn,  34  111.  3G4;  Tcmpleton 
V.  Home,  82  Id.  491;  Frost  v.  Jlsley,  CA  Me. 
345;  Martin  v.  Hnriit,  44  Ala.  418;  Miinn  v. 
Illinois,  94  U.  S.  113,  134.  It  may  change  the 
remedy:  Smith  v.  Judge,  17  Cal.  547;  Temple- 
ton  V.  Home,  82  111.  49;  Carncs  v.  Red  River 
Parish,  29  La.  Ann.  008;  Hardeman  v.  Downer, 
39  Ua.  425;  Fearing  v,  Jrwin,  55  N.  Y.  486; 
Pcnniman's  Case,  1  i  II.  I.  333;  Mills  v.  Charle- 
ton,  29  Wis.  400;  Tennessee  v.  Sneel,  9G  U.  S. 
09.  Nor  is  it  material  that  the  new  remedy  is 
less  expeditious  or  simple  than  t!ie  old:  Bron- 
son  v.  Kinzie,  1  How.  311;  Cuild  v.  Rogers,  8 
Barb.  r^2;  Jones  v.  Critlendni,  G  Am.  Dec.  531; 
Wood  V.  Wood,  14  Rich.  148;  K.c  parte  Pol- 
lard, 40  Ala.  77;  Starkweather  v.  I/awes,  10 
Wis.  125.  The  right  to  alter  the  means 
whereby  a  right  may  be  enforced  is  thus  quali- 
fied: An  act  which  so  alters  the  previous  reme- 
dial legislation  as  to  wholly  deprive  a  person 
of  recovering  ou  his  claim,  undoubtedly  impairs 
vested  rights:  Curran  v.  State,  15  How.  304; 
Western  Savings  v.  Philadelphia,  31  Pa.  St. 
175;  Oatman  v.  Bond,  15  Wis.  20;  Rigg  v. 
Martin,  5  Ark.  50G;  or  if  it  leaves  any  essen- 
tial part  practically  unavailing,  it  is  not  con- 

3 


7-10 


PRELIMIXARY  PROVISIONS. 


Btitntional:  Mungrove  v.  Viclahurg  7?.  7?.  Co., 
60  Mis3.  C77;  Morton  v.  Valladbie,  15  La.  Ann. 
150. 


Iiegislative  poTwer  over  statutes  of  lim. 
itation:  See  the  note  to  sec.  0  of  the  Pol. 
Code. 


7.  Holidays. 

Sec.  7.  Holidays,  within  tlie  meaning  of  this  code,  are:  Every  Sunday,  the 
first  day  of  January,  the  twenty-second  day  of  Fe'uruary,  the  thirtietli  day  of 
May,  the  fourth  day  of  July,  the  twenty-lifth  day  of  December,  eveiy  day  on 
which  an  election  is  held  throughout  the  state,  and  every  day  appointed  by  the 
president  of  the  United  States,  or  by  the  governor  of  this  state,  for  a  public 
fast,  thanksgiving,  or  holiday.  If  the  first  day  of  January,  the  twentj'-second 
day  of  February,  the  thirtieth  day  of  May,  the  fourth  day  of  July,  or  the  twenty- 
fifth  day  of  December,  fall  upon  a  Sunday,  the  Monday  following  is  a  holiday. 
[Amendment y  approved  April  9,  1880;  Amendments  1880,  9  {Ban.  ed.  188);  loolc 
effect  immediately.  ] 
"Holidays,  when  counted:  See  note  to  following  section;  and  see  sec.  ll._^n(i  note. 

8.  Same. 

Sec.  8.  If  the  first  of  January,  the  twenty-second  of  Februaiy,  the  fourth  of 
July,  or  the  twentj'-fifth  of  December,  falls  upon  a  Sunday,  the  Monday  fol- 
lowing is  a  holiday. 


Here  a  notice  of  appeal  was  given  on  Tuesday, 
the  tliird  of  January,  the  sixtieth  day  being  the 
second,  but  the  first  coming  on  Sunday. 

Declaring  the  tiiirtieth  day  of  May  to  be  a 
holiday,  and  the  addition  (if  the  last  clause, 
are  tlit;  particulars  in  which  this  section  is 
amended. 


It  -will  be  observed  that  the  thirtieth  day 
of  May  is  omitted  from  this  section.  The  en- 
tire section,  liowcvcr,  is  included  in  seciion  10 
as  amended  in  ISSO,  in  t!ie  last  clause  of  which 
the  thirtieth  day  of  J\Iay  is  enumerated  with 
the  otlicr  holidays  falling  on  Sunday. 

Holidays. — Cited  as  to  lirst  of  January  fall- 
ing on   Sunday:   E'itate  of  Hose,  63  Cal.  3-16. 

9.  Business  days. 

Sec  9.     All  other  days  than  those  mentioned  in  the  lai?o  two  sections  are  to 
be  deemed  business  days  for  all  purposes. 
See  sec.  11,  and  note. 

10.  Computation  of  time. 

Sec.  10.  The  time  in  which  any  act  provided  by  law  is  to  be  done  is  com- 
puted by  excluding  the  first  day,  and  including  the  last,  unless  the  last  day  is 
a  holiday,  and  then  it  is  also  excluded. 

Computation  of  time — It  is  now  the  re-  number  of  times  a  week  for  a  specified  number 

ceivcd  law  in  most  of  tiie  states  that  time  is  to  of  montlis,  it  is  requisite,  notonly  that  the  num- 

be  computed  as  prescribed  by  the  above  section,  ber  of  weekly  publications  be  observed,  but  that 

Chief  Justice  Gray  reviews  the  cases  in  Bends  the  prescribed  length  of    time,  calcul.ited  ac- 

V.  Leonard,  118  Mass.  502,  and  concludes  that  cording  to  the  calendar   month,  be  followed: 

"in  computing  time  from  the  date  or  from  the  Sariiiij>i  and  Loan  Soc'ety  v.  Thompson,  sitpra. 

day  of  t!ie  date,  or  from  a  certain  act  or  event,  Excluding  holidays. — As  to  the  perform- 

thc  day  of  the  date  is  to  be  cxchulcd,  unless  a  ance  of  secular  acts  fal-ing  on  a  hobrlay,  see 

dilTerent  intention  is  manifested."    Tlie  same  note  to  next  section.     Intervening  holidays  are 


rule  13  adopted  miU.'sh  v.  Mai/hrw,  51  Cal.  514; 
iS'/i-'-e/.^v.  ,9eWe«,2\Vall.  100;  (/'Coniiorv.  Towns, 
1  Tex.  107;  Gooilev.  Webb,  o2  Ala.  452;  llandle>i 
Cnuninf/ham,  12  Busli,  4v02.    In  Jlish  v.  J/a?/- 


counted  as  part  of  the  computed  time.  JShould 
the  law  require  tlic  publication  of  a  notice  daily 
for  ten  days,  Sundays  excepted,  tin  exception 
in  favor  of  the  Sunday  relates  to  the  daily  pub- 


hew,  siipra,aca.se  arising  under  section  11 10  of    lisliia,'  of  the  notice,  and  not  to  the  period  of 


tlie  Cotle  of  Civil  Procedure  in  re^tanl  to  con 
t<SLed  election,  the  requirement  that  the  list  of 
iU'jg-d  votes  must  be  delivered  at  least  three 
days  before  the  trial  was  held  complied  with 
where  the  delivery  was  on  the  seventh  of  the 
month  and  the  trial  on  the  tenth. 

"Month  "  is  meant  to  be  a  calendar  and 
not  a  lunar  month:  Savini/s  and  Loan  Society 
V.  Thompson,  32  Cal.  317;  Spra<pie  v.  A'orwaij, 
31  Id.  173;  butsee section  14,  t^/ra,  subdivision 
4,  defining  the  word  "month."     Where  a  stat- 


time  during  which  publication  is  to  be  counted: 
Tai/lor  V.  Palmer,  31  Cal.  241;  MHea  v.  McDer- 
moU,  Id.  271.  And  if  published  on  Sunday, 
the  fact  that  the  day  is  a  dks  von  does  not 
vitiate  the  service,  that  publication  benig  bub 
one  of  a  series  of  asts  required  to  make  t!ie  ser- 
vice complete:  Savings  and  Loan  Societi/  v. 
Thompson,  32  Id.  347.  In  cxclutling  the  last 
prescribed  day  in  estimating  the  length  of  time 
for  the  [lerformance  of  a  duty  required  by  law, 
it  is  necessary  to  include  the  following  Monday. 


ute  directs  the  pablicatiou  of  notices  a  certain    A  publication  of  a  resolution  of  intention  wa» 


7.  Holidays.  Holidays,  within  the  meaning  of  this  code, 
are  every  Sunday,  the  first  day  of  January,  the  twenty- 
second  day  of  February,  the  thirtieth  day  of  May,  the  fourth 
day  of  July,  the  ninth  day  of  September,  the  first  Monday  in 
September,  [the  twelfth  day  of  October  to  be  known  as 
"Discovery  Day"],  the  twenty-fifth  day  of  December,  every 
day  on  which  an  election  is  held  throughout  the  state,  and 
evcrj'  day  appointed  by  the  president  of  the  United  States 
or  by  the  governor  of  this  state  for  a  public  fast,  thanlts- 
giving'  or  holiday.  If  the  first  day  of  January,  the 
twenty-second  day  of  February,  the  thirtieth  day  of  May, 
the  fourth  day  of  July,  the  ninth  day  of  September,  [the 
twelfth  day  of  October]  or  the  twenty-fifth  day  of  December 
fall  upon  a  Sunday,  the  Monday  following  is  a  holiday. 
Every  Saturday  froni  twelve  o'clock  noon  until  twelve  o'clock 
midnight  is  a  holiday  as  regards  the  transaction  of  busmess 
in  the  public  offices  of  this  state,  and  also  in  political  divi- 
sons  thereof  where  laws,  ordinances  or  charters  provide  that 
public  offices  may  be  closed  on  holidays;  provided,  this  shall 
not  be  construed  to  prevent  or  invalidate  the  issuance,  filing, 
service,  execution  or  recording  of  any  legal  process  or  writ- 
ten instrument  whatever  on  such  Saturday  afternoons.  (In 
effect  60  days  from  and  after  February  19,  1909.  Stats.  1909. 
Chap.  30.)  Civ.  Code,  1S09. 


PRELIMINA IIY  PROVISIONS. 


§§  11-13 


pronounced  insufficient,  it  appearing  tliat  the  Fractions  of  a  day  will  be  considered  by 

Btatate  retjuiied  the  publication  to  l)C  made  for  tlie  courts  where  time  is  important,  and  the 

five  days,  "  Sundays  and  non-juilicial  days  ex-  rights  of  parties  are  concerned:  Craij  v.  God- 

pted,"and  that  the  publication  was  for  four  frey,  1  CaL  415;  Ao/z/f  v.  Bt-aity.  14  Id.  5G6. 


days  only,  exclusive  of  the  last  day,  which  was 
a  Sunday:  San  Franciaco  v.  McCain,  50  Id. 
210.  Again,  in  estimating  the  period  for  which 
a  judge  may  grant  an  extension  of  time,  under 
eeciion  1054  of  the  Code  of  Civil  Procedure,  if 
the  last  of  the  thirty  days  fails  on  Sunday  it  is 
to  be  excluded:  Muirw  Gnlloiony,  01  Id.  408. 
Sec;  also  application  of  section  to  redemption 
from  shcritT's  sale  under  .section  702  of  the  Pol. 
Code:  Perfuim  v.  Kuper,  Id.  331. 


Time,  hovr  computed,  and  year,  ■wreck, 
and  day  defined:  See  sees.  3255  ct  seq.  of 
Pol.  Code. 

The  supreme  court  is  alw^aya  open  for 

the  transaction  of  business:  Sec.  104,  Code  Civ. 
Proc. ;  although  the  thirtieth  day  in  which 
to  make  an  order  to  hear  a  cause  ia  haul;  falls 
on  Sunday,  yet  the  court  cannot  make  the 
order  on  the  next  day:  Adams  v.  Dohrviann, 
C3  Cal.  417. 


11.  Certain  acts  not  to  be  done  on  holidays. 

Sec.  11.  Whenever  any  act  of  a  secular  nature,  other  than  a  worli  of  neces- 
Bity  or  mercy,  is  appointed  by  law  or  contract  to  be  performed  upon  a  particular 
day,  which  day  falls  upon  a  holiday,  it  may  be  performed  upon  the  next  business 
day  with  the  same  effect  as  if  it  had  been  performed  upon  the  day  api)ointed. 

Day  of  performance  a  holiday. — Under  48  Mo.  75;  Thayer  \\  Felt,  4  Pick.  354;  .S«/'cZ» 
th  3  section,  a  note  falling  due  on  Sunday  is 
lavab'e  the  fo'lowing  Monday,  in  the  aljscnce 
of  u£".go  to  the  contrary;  tlie  laugiiagc  of  tlie 
seciiou  heing  permissive.  In  Il<b''riiia  Bank  v. 
O'Grad;/,  47  Cal.  579,  the  note  ia  (luestiou  was 
held  jayabio  on  Saturday,  the  day  of  maturity 
being  Sunday;  but  this  was  under  a  former 
Btatute  prescribing  tliat  such  should  betliccnse 
wit'.i  ncg;itial)lc  instruments.  The  rule  of  the 
code  is  that  which  most  geuerrlly  is  observed: 
Barrett  \.  Allen,  10  Ohio,  426;  Kunlzw  Temple, 

12.  Joiid  authorily  cousfrued. 

Sec.  12.  Words  giving  a  joint  authority  to  three  or  more  public  officers  or 
other  persons  are  construed  as  giving  such  authority  to  a  majority  of  them, 
unless  it  is  otherwise  expressed  in  the  act  giving  the  authority. 


Lyon,  IS  Conn.  17;  Conimonvedlth  Bank  v 
Variutm,  49  N.  Y.  279.  In  Patrick  v.  Fauike, 
45  Mo.  314,  the  principle  was  not  applied  to  a 
mcclianic's  lien  expiring  on  Sunday,  the  court 
thinking  tiiat  such  a  lien  should  be  strictly 
construed  against  the  liendioldcr.  Under  the 
New  Jersey  act,  a  note  mr.turing  on  Sunday, 
May  30tii,  is  due  and  payable  on  tlie  following 
Tuesday:  Ila/jerty  v.  Eii'jtc,  43  K.  J.  L.  209. 

Compare  with  sec  9,  supra. 


Executing  joint  authority. — If  from  t!ie 
delegation  of  autho:  ity  it  appear  that  all  must 
not  only  meet  but  all  must  agree,  the  authority 
must  1)0  piiiRued:  /'eo/Ac  v.  Cvjlul,  47  Cal.  3GI. 
Before  the  code  there  were  many  authorities 
to  the  cli'cct  that,  as  ii  general  rule,  where  the 
legislature  hid  cie.ited  a  board  of  commission- 
ers and  Conferred  discretionary  powers  to  de- 
cide upon  matters  of  public  iati^rest,  liut  had 
made  no  provision  that  a  majority  .shall  consti- 
tute a  quorum,  all  must  be  present  and  consult, 
though  a  majority  might  dt'cidc:  Pioplf  v.  (  0.7- 
hilt,  sii/)ra,  c.ting  Oriudlei/  v.  Barker,  1  Bos.  & 
Pul.    229;    Crocker  v.    Crane,  21   Wend.   218; 


Bahrock  V.  Lamb,  1  Cow.  2:19;  Expar'e  Pofjers, 
7  Id.  52C;  so  also  Takott  v.  Blaiidi.Kj,  54  Cal. 
2S9,  where  all  met  and  a  majority  decided; 
Smith  V.  Smith,  2S  HI.  50;  Tii^<-arora  Jhudije 
Co.  V.  Jemisou,  33  Ala.  470;  MrCrary  v.  Har- 
rison, 30  Id.  577:  JJlod'jeity.  Prince,  109  Mass. 
4;  l/cud'-rson  v.  Balkley,  14  B.  Mon.  230.  Not 
only  docs  section  15  remove  the  distinction  be- 
tween the  exercise  of  a  joint  authority  between 
public  and  private  bodies,  but  also  gives  to  the 
majority  power  not  only  to  decide,  but  to  meet 
and  decide;  where  a  majority,  a  quorum  of  the 
board,  have  met,  a  majority  of  tl-.e  quorum  may 
decide:  Flint  v.  Harrington,  63  Cal.  257. 


13.   Wordn  and  phrases,  how  construed. 

Skc.  13.  Words  and  phrases  are  construed  according  to  the  context  and  the 
approved  usage  of  the  language;  but  technical  words  and  phrases,. and  Buch 
others  as  have  acquired  a  peculiar  and  appropriate  meaning  in  law,  or  are  de- 
fined in  the  succeeding  section,  are  to  be  construed  according  to  such  peculiar 
and  appropriate  meaning  or  definition. 

.>  Wash.  209;  Martin  v.  Hunter's  Losiee,  1 
Wlieat.  .320;  Mayor  v.  Winter,  29  Ala.  051; 
Philadel/'hia  R.  R.  v.  CcUawlt^a  R.  R.  Co.,  53 
Pa.  St.  20:  Green  v.  Welln;  32  Miss.  050.  But 
if  a  technical  word  is  manifestly  used  in  an 
untcclinical  sense,  the  court  will  give  it  '.lie 
meaning  intended  I  y  the  party  using  it:  C.  P. 
R  /.'.  V.  Z>Va/,  47  Cal.  151;  Clark\.  City  of  Ulna, 
lSr.arb.  151;  /:obin.i»n  v.  VariieH.  10  Te_x.  382. 
An<l  see  Iiosei.bi'iii  v.  Frank,  58  Cal.  3S7,  for  a 
construction  of  the  words  "prorata"  in  a  will. 


Words  and  phrases,  hovT^  construed. — 

The  above  is  the  general  rule  with  regard  to 
the  construction  of  words,  whetlu-r  in  contracts, 
statutes,  or  constitutions.  The  nicTuiug  to  be 
given  to  words  in  contracts  is  providctl  f v  r  in 
this  code,  sections  1044,  1045.  and  in  the  Code 
of  Civil  Procedure,  section  ISCl.  The  fol  ow- 
ini(  decisions  follow  the  rule  of  the  codes: 
JJovii/.ton's  AjpenI,  42  Cal.  35;  /'eop'e  v.  LIdy, 
43  I.I.  332;  Weill  v.  Reufteld.  54  bl.  Ill;  WedUr 
r.  JJarrin,  20  Wend.  555;  United  Stales  \.  Jones, 


§3  14-18 


PRELIMINARY  PROVISIONS. 


14.  Certain  terms  defined. 

Se(;.  14,  Words  used  in  this  code  in  the  present  tense  include  the  future  as 
well  as  the  present;  words  used  in  the  masculine  gender  include  the  feminine 
and  neuter;  the  sin,G^ular  number  includes  the  j^lural,  and  the  plural  the  singular; 
the  woi'd  * '  person  "  includes  a  corporation  as  wel]  as  a  natural  person ;  ' '  writing  " 
includes  printing;  "  oath  "  includes  afarmation  or  declaration;  and  every  mode  of 
oral  statement  under  oath  or  affirmation  is  embraced  by  the  term  "  testify,"  and 
ivery  written  one  in  the  term  "  depose; "  "  signature  "  or  "  subscription"  includes 
mark,  when  the  person  cannot  write,  his  name  being  written  near  it,  and  writ- 
ten b}'  a  person  who  writes  his  own  name  as  a  witness.  The  following  words, 
also,  have  in  this  code  the  signification  attached  to  them  in  this  section,  unless 
otherwise  apparent  from  the  context: 

1.  The  word  "  j)roperty  "  includes  both  property,  real  and  personal; 

2.  The  words  "real  property"  are  coextensive  with  lands,  tenements,  and 
hereditaments; 

3.  The  words  "  personal  property  "  include  money,  goods,  chattels,  things  in 
action,  and  evidences  of  debt; 

4.  The  v/ord  "  month  "  means  a  calendar  month,  unless  otherwise  expressed; 

5.  The  word  "  will  "  includes  codicils.    [Amendment,  approved  Mardi  30, 1874; 

Amendments  1873-4,  181;  took  effect  July  1,  1874.] 

it  to  liave  been  a  "mare:"  People  v.  Pico, 
C2  Cal.  50.  JIasculiiie  words  in  statuto  ex- 
tend to  tlie  feminine  gender  of  that  class: 
FoUz  V.  llorje,  5-1  Id.  "28. 

"Property"  includes  evidences  of  debt,  as 
a  general  rule:  Pfop/e  v.  Eddy,  43  Cal.  331; 
but  Peojile  v.  Hihernia  Bank,  51  Id.  243,  aud 
Midfi-  V.  lle'dborn,  8  Id.  133,  illustrate  \\o\r 
tliis  meaning  may  be  qualified  by  the  context. 
The  ri;;lit  to  an  apjieal  is  property  within  tlio 
meaning  of  the  Penal  Code,  seetioii  619.  It 
will  be  an  injury  to  property  under  this  section 
to  write  threatening  letters  preventing  one 
from  prosecuting  his  appeal:  Peojjle  v.  Cad- 
man,  57  Id.  5G2. 

"Month:  "  See  note  to  section  10,  ante. 

Words  used  in  boundaries  are  defined  in 
sections  3903  to  3907  of  the  Pol.  Code. 

Real  property. — Definitions  cited  iu  Fish  v. 
Foidlc,  58  Cal.  373. 

The  word  "value,"  defined  in  the  original 
section,  and  omitted  by  the  amendment,  waa 
held  in  Sackflt  v.  Johnson,  54  Cal.  107,  109, 
not  to  change  tiie  rule  which  had  previously 
prevailed. 


"Person,"  in  its  legal  signification,  is  a  gen- 
eric term,  and  includes  artificial  as  well  as  nat- 
ural persons:  .s'.  V.  W.  li'.  V.  Schofil^r,  G2  Cal. 
69,  110;  J)oii:/las.s  v.  Pac.  M.  S.  S.  Co.,  4  Id. 
306.  Tlie  word  "person,"  in  the  fourteenth 
amendment  to  the  constitution  of  the  United 
States,  was  thought  not  to  include  corporations, 
in  G.  P.  N.  li.  V.  Board  of  Equalization,  GO 
Id.  35;  but  tlie  opposite  view  was  entertained 
in  Railroad  Tax  Caf^e^,  8  Saw.  235. 

"Signaturo." — Fac-simile  of  an  autograph 
printed  and  used  as  a  signature  is  a  signature; 
Pennington  v.  Baehr,  48  Cal.  505.  And  an  at- 
torney's name  printed  to  a  complaint  is  a  sutfi- 
cient  signing:  Hancock  v.  Bon-man,  49  Id.  413; 
Barnard  v.  Ilendrich,  49  Barb.  02.  But  to  cut 
a  written  signature  and  affix  to  another  instru- 
ment is  nut  a  s'gning  of  that  instrument:  Fox 
V.  Board  of  Siipervisorx,  Id.  503.  The  clerk 
of  a  board  of  supervisors  may  adopt  a  printed 
signature:  IVillianis  v.  McDonald,  58  Cal. 
527. 

"Masculine"  includes  "femiuins."  There 
is  no  variance  where  the  indictment  charges 
the  larceny  of  a  "  horse  "  and  the  proof  shows 

15,  16, 17.    Good  faith — Diligence. 

Sections  15,  16,  and  17  were  repealed  by  act 
approved  March  30,  1874;  Amendments  1873-4, 
182;  took  effect  July  1,  1874.  These  sections 
as  origina'ly  passed  were  as  follows: 

"  Sec.  15.  Good  faith  co:isists  in  an  honest 
intention  to  abstain  from  taking  any  unconsci- 
entious advantage  of  another,  even  through  the 
forms  or  techjiicaliLies  of  law,  together  with  an 
absence  of  all  information  or  belief  of  fads 
•wljich  would  render  tlie  transaction  unconsci- 
entious. 

"Sec.  16.  There  are  three  degrees  of  care 
and  diligence:    1.  Slight,  which  is  such  as  per- 


sons of  ordinary  prudence  usually  exercise  about 
their  own  affairs  of  slight  importance;  2.  Ordi- 
nary, which  is  such  as  ])erson3  of  ordinary  pru- 
dence usually  exercise  about  their  own  affairs  of 
ordinary  importance;  3.  Great,  which  is  such  aa 
persons  of  ordinary  prudence  usually  exercise 
about  their  own  affairs  of  great  imi)ortance. 

"Sec.  17.  1  here  are  three  degrees  of  negli- 
gence: 1.  Slight,  which  consists  iu  the  wantof 
great  care  and  diligence;  2.  Ordinary,  which 
consists  in  the  want  of  ordinary  care  and  dili- 
gence; .3.  Gross,  which  consists  iu  the  want  of 
slight  care  aud  diligence." 


18.    Notice,  actual  and  constructive. 
Sec.  18.     Notice  is: 
1.  Actual — which  consists  in  express  information  of  a  facti  or. 


PRELIMINARY  PROVISIONS. 


§§  19,  20 


2.  Constructive — which  is  imputed  by  law. 
See  note  to  next  section. 

19.    Constructive  notice. 

Seo.  19.  Every  person  who  has  actual  notice  of  circumstances  sufficient  to 
put  a  prudent  man  upon  inquiry  as  to  a  particular  fact  has  constinictive  notice 
of  the  fact  itself  in  all  cases  in  which,  by  prosecuting  such  inquiry,  he  might 
have  learned  such  fact.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  182;  took  effect  July  1,  1874.] 

The  original  section  read : 

"Sec.  i'J.  Every  person  who  has  actual  no- 
tice of  circumstances  sufficient  to  put  a  prudent 
man  upon  inquiry  as  to  a  particular  fact,  and 
who  omits  to  make  such  inquiry  with  reason- 
able dilip;ence,  has  constructive  notice  of  the 
fact  itself." 

Constructive  notice — Recording  Instru- 
mencs:  See,  poft,  sec.  1158. 

Possession  of  land  as  notice:  See  note  to 


sec.  1217,  post,  and  the  cases  of  Uncjer  v.  Moo- 
iifif,  63  Cal.  .5*J(J,  where  a  vendee's  possessiou 
under  a  deed  of  the  entire  tract  from  one  co- 
tenant  was  held  to  impart  notice  to  the  other 
co-tenant,  and  Bath  v.  Valdez,  6  West  Coast 
Rep.  8S9.  where  it  was  not. 

Recitals  in  title  deeds:  See  note  to  sec. 
1217. 

Other  circumstances  giving  notice:  See 
same  note. 


20.    Effect  of  repeal. 

Sec.  20.  Ko  statute,  law,  or  rule  is  continued  in  fox-ce  because  it  is  consistent 
with  the  provisions  of  this  code  on  the  same  subject;  but  in  all  cases  provided 
for  by  this  code  all  statutes,  laws,  and  rules  heretofore  in  force  in  this  state, 
whether  consistent  or  not  with  the  provisions  of  this  code,  unless  expressly 
continued  in  force  by  it,  are  repealed  or  abrogated.  This  repeal  or  abroga- 
tion does  not  revive  any  former  law  heretofore  repeided,  nor  does  it  affect  any 
right  already  existing  or  accrued,  or  any  action  or  proceeding  already  taken, 
except  as  in  this  code  provided. 

vUle  R.  li.  Co.,  10  Ohio  St.  25;  Goodrich  v.  Mil- 
iccmkee,  2i  Wis.  422;  IIirHoa  v.  Mohllc,  4.'}  Ala. 
503;  Gill  v.  Slaie,  .SO  Tex.  514;  Kcrlhir/cr  v. 
B(i7-ues,  14  Minn.  526;  and,  generally,  such  » 
construction  will  be  ^iven  the  two  provisioaa 
of  the  law  as  will  enable  them  botli  to  havo 
effect:  FoioUr  v.  rerkins,  77  111.  271;  Iver.'<on 
V.  Slate,  52  Ala.  170;  Cro.shi/  v.  Patrh,  IS  Cal. 
438;  Po7ul  V.  Maddox,  38  Id.  574;  U'cdloii  v. 
WaUoii,  Deady,  G05;  yet  where  there  h  a 
plain  and  unavoidable  repugnance  between  the 
new  act  and  the  former  statute  a  repeal  by 
implication  will  take  place:  Forqucron  v. 
Donally,  7  W.  Va.  114;  G aiding  v.  College  of 
Chamber.sbiirij,  8  Vroom,  258;  Cuvhigton  v.  Citi/ 
of  East  St.  Loui^,  78  111.  518;  Paafic  R.  R.  Co. 
V.  Cass  Conniii,  53  Mo.  17;  W.  W.  Co.  v.  Burk- 
hart,  41  Ind.  3G4;  Grant  Co.  v.  Sels,  5  Or.  243; 
llarst  V.  llawn,  Id.  275;  People  v.  Burt,  4.3 
Cal.  501;  Ex  parte  Smith,  40  Id.  419;  E.4ate  of 
Wixom,  35  Id.  320;  People  v.  Sargent,  44  Id. 
4.30,  and  cases  above  cited.  There  must  be 
such  a  positive  repugnancy  between  the  new 
and  the  old  provisions  that  they  cannot  stand 
together  or  be  c'>nsistentlv  reconciled:  McCool 
V.  Smith,  1  Black,  439;  Wood  v.  United  States, 
IG  Pet.  342;  Clay  Co.  v.  Society  for  Savings, 
104  U.  S.  579. 

The  general  design  undertaken  by  the  codes, 
to  revise  the  laws,  gives  room  for  the  appli- 
cation of  another  principle  in  respect  to  con- 
struing legislative  enactments,  wliich  is,  ia 
effect,  eml)odicd  in  tlie  above  section.  It  ia 
recognized  that  a  new  statute,  revising  the  whole 
subject-matter  of  an  old  one,  and  evidently  in- 
tended as  a  substitute  for  it,  will  operate  as  a 
repeal  of  the  former  law,  although  it  is  not  so 


Code  operating  as  a  repeal  of  prior 
statutes. — See  application  of  this  section  to 
power  to  give  other  punishment  for  contempt 
than  as  prescribed  in  this  code:  Johnson,  v.  Su- 
perior Court,  G3  Cal.  578;  and  to  sec.  1881,  Code 
Civ.  Proc,  in  regard  to  awife's  testifying  against 
her  husband:  People  v.  Langtree,  Gl  Iil.  256. 
The  code  <;ommissioners  quote  the  general  prin- 
ciple of  repeal  by  implication,  as  laid  down  in 
Perri/  v.  Atnes,  2G  Id.  382,  and  stated  herein- 
after, and  then  say:  "In  view  of  this  decision, 
the  language  of  the  text  was  necessary,  rcj)eal- 
ing  all  former  laws  on  the  same  subject, 
whether  consistent  or  not." 

Statutes  continued  in  force:  See  sec.  19 
of  the  I'olitical  Code  and  Penal  Code,  and  Stat- 
utes in  Force. 

Repeals  by  implication. — It  being  the  de- 
sign of  thecoditiers  to  frame  a  new  systemof  law, 
as  aiipears  from  the  note  to  section  4  of  the  Po- 
litical Code,  the  effect  of  the  code  upon  existing 
laws  must  be  determined  accordingly;  yet  pre- 
vious sectionsof  these  preliminary  provisions  dis- 
close an  intention  not  to  disturb  existing  rights, 
and  section  20  must  be  construed  with  reference 
to  these  sections;  the  last  clause  of  section  20  de- 
clares the  same  thing.  The  whole  provision  ia 
but  a  formal  statement  of  a  well-settled  rule 
in  the  construction  of  statutes,  though  the 
repeal  of  stulutea  by  implication  is  not  favored 
by  the  courts:  Gordon  v.  People,  44  Mich.  485; 
Peo/de  V.  llVWpr,  3  Neb.  323;  People  v.  Quig'i, 
59  N.  Y.  83,  88;  People  v.  Palmer,  52  Id.  82; 
Jiogan  V.  Gnigon,  29  Gratt.  709;  Stale  v.  Sev- 
erance, .55  Mo.  378;  W.  W.  Co.  v.  Burkhart,  41 
Ind.  364;  Merrill  v.  Gorham,  6  Cal.  42;  Sco- 
Jield  V.  White,  7  Id.  401;  People  v.  S.  F.  A  S.  J. 


li.  li.  Co.,  28  Id.  256;  Buckingham  v.  Steuben-     expressly  stated:  Treadwell  v.  Yolo  Countq,  63 


i2i 


PRBLIMINARY  PROVISIONS. 


Cal.  5G3;  Stirman  v.  Stale,  21  Tex.  734;  Cul- 
ten  V.  Stale,  42  Conn.  55;  Cam] Ml  v.  Ccuie, 
1  Dakota,  17;  Swavn  v.  Dark,  40  Misa.  268; 
Struus.-^  V.  //ci.>s,  48  Md.  292;  Enoin  v.  J/oore, 
15  Ga.  3G1;  Conley  v.  Calhoun,  2  W.  Va. 
41C;  S'<(x<(?  V.  /?of/cr.9,  10  Kev.  319;  Norrm 
V.  Crocker,  13  How.  429;  6''«J(:p(/  ^'a^rs  v.  /iarr, 
4  Saw.  250;  t/wi/'^tZ  5/a/.e8  v.  Tyiien,  11  Wall. 
05;  Lelqhton  v.  MW^-cr,  9  N.  H.  59;  Common- 
wealth  V.  Khnball,  21  Pick.  37G;  Dowdell  v. 
fi-fa/e,  58  Iiul.  333;  JIayes  v.  A'^a/r,  55  Iil.  99; 
Lonijlois  V.  Longloix,  48  Id.  GO.  Judge  Field, 
in  Miirdork  v.  Memphm,  20  Wall.  590,  com- 
menting upon  the  effect  of  the  second  section 
of  the°act  of  February  5,  18G7,  upon  the 
twenty- lifth  section  of  the  judiciary  act  of 
1789,  after  statinfj  that  it  waa  manifest  that 


congress  intended  "by  the  latter  statute  to 
revi.se  t!ie  entire  matter  to  whicli  tliey  both  had 
reference,"  said:  "  We  are  of  <>])inion  tliat  the 
new  law,  embracing  all  that  was  intended  to  bo 
preserved  of  the  old,  omitting  what  was  not  so 
intended,  became  complete  in  itself,  and  re- 
pealed .ill  other  law  embraced  within  it."  And 
so  also  P('0))le  v.  Lon  Me,  40  C"al.  35.S. 

The  repeal  of  a  repoaliug  aot  does  not  re- 
vive the  original  act:  People  v.  Hunt,  41  Cal. 
435;  ami  sec.  328,  Pol.  Code.  And  similar  pro- 
visions arc  found  in  the  statute  law  of  other 
states:  Sullivanv.  People,  15111.  233;  Tallainon 
V.  Curilena'i,  14  La.  Ann.  50'J;  W'Ukouaki  v.  Wit- 
kouxk!,  10  Id.  2.'«;  Milne  v.  JInh>'r,  3  McLean, 
212;   \milh  v.  llo:it,  14  Wis.  252. 

Vested  rights:  See  sec.  6,  and  note. 


21.    This  act,  how  cited. 

Sec.  21.  This  act,  whenever  cited,  enumerated,  referred  to,  or  amended, 
may  be  designated  simply  as  "  The  Civil  Code,"  adding,  when  necessaiy,  the 
number  of  the  section. 

Title  of  thp  act:  See  ante,  sec.  1.  jects  of  the  respective  codes,  will  b©  found  Id 

"These  pieliminary  provisions,"  say  the    ei*ch," 
eomoussioaera,  "only  varying  to  suit  the  sub- 

8 


Div.  I,  Part  I.] 


PERSONS. 


§§25-29 


DrVISION  FIRST. 

Paet  I.  Persons 25 

II.  Personal  Pights 43 

III.  Personal  Relations ^  , , 5.) 

IV.  Corporations 283 


PART    I. 

PEPtSONS. 

25.  Mbiors,  who  are. 
Sec.  25.     IMinors  are: 

1.  Males  under  twenty-one  years  of  age; 

2.  Females  under  eighteen  years  of  age. 

At  commcn  lavr  the  ages  of  male  antl  female  may  be  betrothed  or  given  in  marriage;  nt  nine 

were  (lilTv-TCiit  for  different  purposes.     "A  male  is  entitled  to  dower;  at  twelve  is  at  years  of 

at  twelve  yean  old  may  take  the  oath  of  allc-  maturity,  and  therefore  m.iy  consent  or  dis- 

giancc;    at  fmnteen  is  at  years  of  discretion,  agree  to  marriage,  and  if  proved  to  have  suffi- 

aud  tlicreforc  may  consent  or  disagree  (o  mar-  cient   discretion,  maj'   beqncalh  her   personal 

riage,  may  choose  his  guardian,  and  if  his  dis-  estate;  at  fourteen  is  at  years  of  legal  discre- 

cretion  be  actually  proved,  may  make  his  tes-  tion,  and  may  choose  a  guardian;  at  seventeen 

tamentof  luj  personal  estate;  at  seventeen  may  may  l^e  executrix;  and  at  twenty -one  )nay  dis- 

be  an  executor;  and  at  twenty-one  is  at  his  own  pose  of  herself  and  her  lands.     So  ihat  the  full 

disposal,  and  may  alien  his   lands,  goods,  and  age  in  male  and  female  is  tweuty-une  years:" 

chattels.     A  female  also  at  seven  years  of  age  Bla.  Com.,  Cooley's  ed.,  *4G3. 

26.  Periods  of  minority,  lioio  calculated. 

Sec.  2G.  The  periods  specified  in  the  preceding  section  must  be  calculated 
from  the  first  minute  of  the  day  on  which  persons  are  born  to  the  same  minute 
of  the  corresponding  day  completing  the  period  of  minorit}'. 

Full  ago  at  common  lav/  w^as  coraoletsd 


1870.  lie  has  the  whole  of  that  day  in  which 
to  commence  actions  ;is  an  adult,  and  an  action 
concerning  realty  must  be  lirou"ht,  iiithe  latest, 
on  the  icn'ch  day  of  April,  1881:  Gaiuihl  v. 
tSoher,  4  West  Coast  Rep.  Gu9. 


"on  th  J  day  preceding  the  anniversary  of  a 
person's  birtli:"  Bla.  Com.,  Cooley's  cd  ,  *40'1. 
Under  the  above  section,  a  person  born  on  the 
eleventh  day  of  April,  1835,  bLComcs  of  ago 
the  first  minute  of  the  eleventh  day  of  April, 

27.  Adults,  xoho  are.. 

Sec  27.     All  other  persons  are  adults. 

28.  Contrails  of  minors. 

Repealed  by  act  approved  March  30,  1874;  Amendments  1S73-4, 182;  took  ettcet  July  1,  1874. 

29.  Unborn  child. 

Sec  29.  A  child  conceived,  but  not  yet  born,  is  to  be  deemed  an  existing 
person,  so  far  as  may  be  necessary  for  its  interests  in  the  event  of  its  subse- 
quent birth. 

An  infant  en  ventre  sa  mere,  or  in  the 
inolher'.-j  \\  oinb,  was  supposed,  at  common  law, 
to  bo  born  for  ninny  purposes.  It  was  capable 
of  having  a  legacy  or  a  surrender  of  a  copy- 
hold estate  inaio  to  it.  It  might  lia\e  a  guar- 
dian i.>»oignid  t )  it,  and  it  was  enabled  to  have 
an  estate  liiniLe  I  to  its  use,  and  afterwards  to 
take  by  tucli  liuiitatioii  as  if  it  weio  actually 
born:  Bla.  Com..  Cooleylsed.,  130.  "Itisnow 
arulo  establisl.fd  beyond  doubt,  and  rccog- 
nucd  by  leudmg  text-writers,  tlhit  a  child  en 


ventre  la  mere,  for  purposes  of  inheritance  or 
where  its  benefit  ij  to  he  f ..  tiicrcd,  u  regarded 
as  ill  e-tsr,  and  ns  capable  of  la  ;ing  as  t'lOUL^h  born 
at  the  time:  Bingham  on  Inra:icy,  104;  2  Ked- 
licld  on  Wills,  3d  cd.,  G8,  nole;  4  Kent's  Com. 
412,  note;  Tyler  on  Infr.ncy,  2  I  cd.,  22.1;  2  Jarm. 
on  Wi  Is,  3th  Am.  ed.,  740;  M'a'/w  v.  Uo.lxon,  2 
Atk.  1 13;  Doe  d.  Clarb-  v.  C  arlci',  2  il.  Black. 
3j0;  Clarke  v.  Blake,  2  Bro.  C.  C.  320;  S.  C,  2 
Ves.  jun.  G73;  Rawlins  v.  Rawlins,  2  Con.  Ch. 
Cas.  425;  ScaUerwcod  v.  Edtje,  1  Saik.  229;  Snow 


§§  30-»i 


PERSONS. 


Pnr.I, 


95);  if  it  is  subsequently  bom  alive,  and  so  fj-r 
advanced  towards  maturity  as  to  be  capable  of 
living:  lloiie.  v.  Van  Srhairb,  /far/ier  v.  Archer, 
Hvpra;  and  a  cbild  born  within  six  montba 
is  presumed  incapable  of  living:  jl/arficllis  v. 
ThaJhimer,  And  Beck,  in  bis  Medical  Juris- 
prudence, vol.  1,  12th  ed.,  p.  407,  says:  'As  a 
general  rule,  it  seems  now  to  bo  generally  con- 
ceded that  no  infant  can  be  born  viable,  or 
capable  of  living,  until  one  hundred  and  fifty 
days,  or  live  months,  after  conception.  Tliere 
are,  however,  cases  mentioned  to  the  contrary. 
In  such  cases,  we  should  recollect  that  females 
arc  liable  to  mistakes  in  their  calculations,  and 
that  conce[ition  may  take  place  at  various  times 
during  the  menstrual  intervals,  and  thus  vary 
the  length  of  the  gestation.  Such  early  births 
ai-e  at  the  present  day  very  generally  and  very 
properly  doubted.'  Then,  after  a  review  of 
the  cases,  he  says:  '  We  may,  from  these  obser- 
vations, conclude  that  between  five  and  seven 
months  there  have  been  instances  of  infanta 
living,  though  most  rare;  and  even  at  seven, 
the  chance  of  surviving  six  hours  after  birth  is 
much  against  the  child.'  The  same  views  have 
been  ailopted  by  other  writers  on  medical  juris- 
prudence: See  Chit.  Med.  Jur.  40G:"  Harper 
V.  Archer,  43  Am.  Dec.  474,  in  note.  See  also 
sees.  1337  and  1339,  posthumous  children  tak- 
ing under  will. 


V.  Tucker,  1  Sid.  153;  Trover  v.  Butt.%  1  Sim.  & 
St.  181;  Lomj  v.  Blackall,  7  T.  R.  100;  Millar 
V.  Turner,  1  Ves.  sen.  85;  Burnet  v.  Mnnn,  Id. 
15G;  Thi'lluxson  v.  Wooilford,  4  Ves.  jun.  227; 
S.  C,  11  Id.  112;  Beak  v.  Beale,  1  P.  Wms. 
244;  Northe>i  v.  Strange,  Id.  340;  Biirdet  v. 
Ilopeyood,  Id.  4SG;  Crook  \.  Hdl,  L.  R.,  3  Ch. 
Div. ,  773;  Pearre  v.  Carringtov,  L.  R.,  8  Ch. 
App.,9J9;  CWx/jVWv.  .S'<orr,'3GMd.  129;  Groce 
V.  lldlenherry,  14  Ga.  232;  Ihdl  v.  Hancock,  15 
Pick.  255;  llone  v.  Van  Schaick,  3  Barb.  Ch. 
48S;  A/(isou.  v.  Jone'<,  2  Barb.  229;  Sted/ast  v. 
Nicoll,  3  Johns.  Cas.  18;  Marsellls  v.  Thalhimer, 
2  Paige,  34;  S.  C,  21  Am.  Dec.  GG;  Jvvklns  v. 
Freyer,  4  Id.  47;  Petway  v.  Powell,  2  Dev.  & 
B.  Eq.  30S;  Starlhig  v.  'Price,  16  Ohio  St.  29; 
Siui/t  v.  Diifield,  5  Scrg.  &  R.  38;  Barker  v. 
Pearre,  30  Pa.  St.  173;  Laird's  Appeal,  85  Id. 
339;  Smart  v.  Khig,  Meigs,  149.  Thus  a  child 
en  ventre  sa  mere  is  included  in  the  term 
'  children:'  Petway  v.  Powell,  Crook  v.  Hdl, 
supra;  or  grandchildren:  Smart  v.  King,  supra; 
and  in  the  term  'persons  living  at  the  death' 
of  a  certain  percon:  Rawlins  v.  Rnwlins,  Biirdet 
V .  Ilopegood,  Barker  v.  Pearce,  Groce  v.  Bitten- 
berry,  supra. 

'*  The  infant  is  regarded  as  in  esse  from  the 
time  of  its  conception:  Hall  v.  Hancock,  15 
Pick.  255;  Marsellis  v.  Thnlhimer,  2  Paige,  34; 
S.  C,  21  Am.  Dec.  66;  Hone  v.  Van  Schaick,  3 
Barb.  488;  Harper  v.  Archer,  4  Smed.  &  M. 

30,  31.   Disaffirming  contract. 

Repealed  by  act  approved  March  30, 1874;  Amendments  1873-4,  182;  took  eflfect  July  1, 1874» 

32.  Custody  of  minors. 

Sec.  32.  The  custody  of  minors  and  persons  of  unsound  mind  is  regulated 
"by  Part  III.  of  this  division. 

33.  IFinor,  disabilities  of. 

Sec.  33.  A  minor  cannot  give  a  delegation  of  power,  nor,  under  the  age  of 
eighteen,  make  a  contract  relating  to  real  property,  or  any  interest  therein,  or 
relating  to  any  personal  property  not  in  his  immediate  possession  or  control. 
[Amendment,  approved  March  30,1874;  Amendments  1873-4, 182;  too/c  fffect  July 
1,  1874.] 

Contracts  of  infanta:  See  a  note  in  22  Am. 

Law  Reg.  273. 

An  infant  cannot  delegate  power. — This  is 
the  common-law  rule:  Fonda  v.  Van  Home,  30 
Am.  Dec.  77;  Knox  v.  Flack,  22  Pa.  St.  .33;  Phil- 
pot  V.  Bhigham,  55  Ala.  435;  Story  on  Agency, 
sec.  6.  But  the  rule  made  is  subject  to  the 
following  qualification  by  the  last  writer:  "An 
infant  may  authorize  another  person  to  do  any 
act  which  is  for  his  benefit;  but  he  cannot  au- 
thorize liim  to  do  any  act  which  is  to  his  preju- 
dice," a  qualification  approved  by  1  Whart. 


on  Cont.,  sec.  39;  Ewell  on  Infancy,  45.  The 
editors  of  the  American  Leading  Cases,  how- 
ever, show  that  an  infant  is  under  a  leg;il  inca- 
pacity to  appoint  an  agent:  1  Am.  Lvad  Cas.  304, 
305.  A  power  of  attorney  by  an  infant  to  sell 
laud  is  ab  ;olutely  void:  Lawreiice  v.  McArter, 
10  Ohio  St.  37,  42;  Pi/le  v.  Cnvens,  4  Litt. 
17,  21;  Fonda  v.  Van  Home,  33  A:n.  Dec.  77. 
So  also  a  warrant  to  confess  j;idgment:  Z?ea- 
net  V.  Davix,  6  Cow,  393;  Wapl^s  v.  //  mtinga, 
3  Ilarr.  (Del.)  403;  Carnahan  v.  Alderdlce,  4 
Id.  99. 

34.    Minor,  rights  of. 

Sec  34.  A  minor  may  make  any  other  contract  than  as  above  specified,  in  the 
same  manner  as  an  adult,  subject  only  to  his  power  of  disaffirmance  under  the 
provisions  of  this  title,  and  subject  to  the  provisions  of  the  titles  on  marriage, 
and  on  master  and  servant.  [Amendmei\.l,  approved  March  30,  1874;  Amend- 
ments 1873-4,  183;  took  effect  July  1,  1874.] 

Voidable  contracta  of  minors. — This  sec-  ones  are  binding.     That  the  indorsement  of 

tion  provides  for  the  voidable  contracts  of  an  a  note  Ijy  ;in  infant  is  valid,   at   least  so  far 

infant.     Section    33   specifies  what   contracts  as  to  ena^bla  the  indorsee  to  sue  the  maker,  is 

are  void,  and  sections  36  and  37  declare  what  admitted  by  Daniel:  1  Daniel  uu  Neg.  Inxt., 

10 


PautL] 


PKllSONS. 


§35 


eec.  227;  and  he  inclinca  to  the  view  that  as  to 
himself  it  is  voidable  merely:  Sec.  2^0.  De- 
cisions support  tliio  last  conclusion:  Nvjhlluijale. 
V.  WUhhiijtoi},  8  Am.  Dec.  101;  Fraz^'-r  v. 
Maasi^y,  14  InJ.  382;  Br'njt/n  v.  McCube,  27  Id. 
327;  J'jard;/  v.  Waters,  3S  iMe.  450. 

An  infant  may  make  or  indorse  a  promissory 
note,  and  as  to  him  the  note  or  indorsi  ment  is 
voidable  m(  rely:  llastiiKjH  v.  DoUarhhle,  24 
Cal.  19").  As  to  his  maki:ig  a  lu-omi^aory  note, 
the  same  view  is  held  in  Blood  v.  McKe  • 
nei/,  23  Me.  52.1;  Everson  v.  Carprulcr,  17 
Wend.  419;  Gcodsrll  v.  JlJyerx,  3  Id.  479;  Oimi 
V.  Loiirj,  112  Mass.  403;  J.aw.-ioii  v.  Loi(Joi/,  8 
Greenl.  405:  llcs^cr  v.  Sidney,  5  Watts  &  S.  47(3; 
Conn  v.  ('oLiir/i,  7  X.  II.  3GS;  Orvis  v.  Kimliall, 
3  Id.  314;  Dnbo.<c  v.  U'hidden,  4  MoCord,  221; 
Palmer  v.  MiUcr,  25  Barb.  ;]99;  Slocnm  v. 
Jlooler,  13  Barb.  5;;C.  And  tiie  same  view  is 
entertained  by  1  W^iiart.  on  ('ont.,  sec.  37; 
Story  in  Pr  .m.  Notes,  sec.  78.  T  le  oppusite  is 
maintained  by  I  Daniel  on  Neg.  Inst.,  sec.  225. 


Mortgages  made  by  infants  over  the  age  of 
eigliteeii,  otliers  being  prohibited  by  section  33, 
siij/ra,  are  voidable:  B  ■■stoii  Bank  v.  Chamber- 
lain, 15  Mass.  220;  Eajle  Fire  do.  v.  Lent,  6 
Paige,  Q'^Ti;  linhhard  v.  Cnminivj'i,  1  Greenl.  11; 
Palmer  V.  JId.'er,  25  Barb.  339;  Tern/  v.  Mc- 
ClintocL  41  Mich.  492:  Yonnfi  v.  McKee,  13  Id. 
552;  Cid>i.-<v.  Day,  38  Wis.  G43;  Ileum  v.  Root, 
3:i  N.  Y.  52G;  Allen  v.  Poole,  54  .Miss.  323; 
Kerf/an  v.  Cox,  IIG  Mass.  2S9;  IWd^h  v.  Young, 
110  Id.  390.  Bonds  and  other  scaled  instru- 
ments are  now  considered  subject  to  the  same 
rule  in  this  particular  as  simple  contracts,  and 
ure  voidable  only:  Ilarrod  v.  Jlyers,  21  Ark. 
592;  lyrlli'iorn  v.  Jloijers,  24  Ga.  558;  Boztman 
V.  Broiriiini/,  31  Ark.  304;  Weaver  v.  Jones,  24 
Ala.  420;  Ked  v.  I/ealey,  84  111.  104;  Irvhie  v. 
Irrine,  9  Wall.  017. 

Consult  the  chapter  in  Tyler  on  Infancy,  2d 
ed.,  51  et  seq. 

MarriagG:  See  sees.  55  et  seq. 

Mastsr  and  servant:  See  sees.  2G4  et  seq. 


35.   Minor,  disaffirmance  of  contracl. 

Sec.  35.  In  all  cases  other  than  tliose  specified  in  sections  thirty-six  and 
thirty-seven,  the  contract  of  a  minor,  if  made  whilst  he  is  under  the  aj^e  of 
eighteen,  may  be  disaffirmed  by  the  minor  himself,  either  before  his  majority 
or  within  a  reasonable  time  afterwards;  or,  in  case  of  his  death  within  that 
period,  by  his  heirs  or  personal  representatives;  and  if  the  contract  be  made 
b}'  the  minor  whilst  he  is  over  the  age  of  eighteen,  it  may  be  disaffirmed  in  like 
manner  upon  restoring  the  consideration  to  the  party  from  whom  it  was  i*eceived, 
or  paying  its  equivalent.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  183;  look  effect  July  1,  1874.] 


DiaafErmiug  voidable  contract. — By  this 
section  as  it  now  reads,  an  infant's  contract 
voidable  in  itself  becomes  binding  iiidcss  dis- 
affirmed. Active  ratilication  is  not  essential  to 
make  it  obligat(jry.  Properly  enough,  the  in- 
fant must  allirniatively  take  advantage  of  the 
protection  the  law  accords  to  his  rioiiagc,  and 
within  the  period  here  ]>rescribed  doclaie  liis 
dissent  to  his  contract.  The  prevailing  rule  in 
regard  to  disiifiirming  a  contract  is:  1.  Convey- 
ances of  land  Ijy  an  infant  cannot  be  disaffirmed, 
avoided,  conclusively,  until  after  the  infant 
has  attiiined  the  age  of  majority:  Poo/ v.  Staf- 
ford, 7  Cow.  IS.",;  8.  C,  9  Id.  020;  Bool  v. 
Mix,  17  Wend.  119;  Matlheicxon  v.  Joliu-^on,  1 
Hoir.  Ch.  500;  /las/lnr/s  v.  Dollarhide,  24  Cal. 
195;  Dunton  v.  BroKui,  31  Mich.  182;  Dixon  v. 
Aferrill,  21  Minn.  190;  Bozemnn  v.  Broxvninfj, 
31  Ark.  304;  Walhve.  v.  Latham,  52  Miss.  291; 
2.  The  pcrsoniJ  contracts  of  the  minor  may  be 
■avoided  eitiicr  before  or  after  arriving  at  age: 
Slaffurd  V.  Uoof  9  Cow.  020;  Shipman  v.  Ilor- 
ton,  17  Conn.  481;  Carr  v.   Clovuh,  20  N.   II. 


Cresivgerw  Welsh,  15  0luo,  150;  lloylev.  Slowe, 
2  Dev.  &  B.  L.  320;  Dixon  v.  :derritt,2\  Minn. 
190;  Allen  v.  Poole,  54  Miss.  323.  This  is  espe- 
cially so  where  coupled  with  express  notice  of 
disaffirmance,  and  followed  by  tlie  entry  of  the 
second  grantee:  Prout  v.  11 '/Yr;/,  28  Mich.  104; 
l^ifjijs  V.  Fisk,  04  Md.  100.  Kotice  of  disaffirn.- 
ance,  given  in  writing,  will  sulllcc:  Seranlon  v. 
S/eicai-t,  59  Ind.  09,  92;  especially  if  tliis  be 
consistently  followed  up  I  y  acts  of  ownership, 
or  sttch  as  indicate  a  claim  of  title  adverse  to 
the  transaction  of  infancy:  Turnson  v.  Chambly, 
88  III.  378.  Commencing  proceedings  to  set 
£side  th.e  transaction  is  a  di.saliirmance:  Gil'es- 
pie  v.  Bailey,  12  W.  Va.  70;  Baier  v.  Kennett, 
54  Mo.  82.  In  the  case  of  mere  personal  con- 
tracts, the  avoidance  may  be  liy  any  act  clearly 
demonstrating  a  renunciation  of  the  contract: 
See  note  to  Tucker  v.  Moreland,  1  Am.  Lead. 
Cas.  258. 

DisaSrmance  -witliiu  reasonable  time. — 
What  is  a  rcasomiblu  tin,e  wit!ii:i  the  meaning 
of  a  j)rovibion  similar  to  the  California  code  was 


280;  Wilisx.  Tirambly,  13  Mass.  204;   Cnffmy     declared  to  depend  upon  the  circumstances  of 


V.  lianden,  110  Id.  137;  Bailey  y.  Baraberger, 
11  B.  Mon.  11.3. 

The  language  of  the  above  section  in  terms 
gives  to  (lie  infant  the  power  to  disaffirm  a  con- 
tract before  his  majority;  even  contracts  relat- 
ing to  realty.  To  tl.is  extent,  therefore,  i.4  the 
code  a  departure  from  the  general  ride  on  tiie 
subject. 

Avoidance,  hov<r  made.  —  With  respect 
to  a  sale  of  realty  during  minority,  a  second 
deed  of  the  land,  after  majority,  to  another,  in- 
consistent with  the  lirst,  is  a  disaliirmance  of 
the  first:  Eaale  Fire  Co.  v.  Lent,  0  Paige,  035; 


each  case:  Jenkins  v.  Jei:k'tiis,  12  Iowa,  195; 
Wri(jht  V.  Germain,  21  Id.  585;  Jone-^  v.  Jones, 
40  Id.  473.  In  the  latter  case  four  months  waa 
deemed  a  reasonable  time  w  itlrn  wiiich  to  dis- 
affirm a  contract  entered  into  l)y  a  nunor  m  ith 
his  father.  It  is  stated  by  Sehouler  on  Dom. 
Bel.,  sec.  430,  in  speaking  upon  tiie  subject  of 
disaffirming  conveyances  of  real  estate:  "  There 
seems  to  be  no  doubt  upon  the  decided  cases 
that  mere  acquiescence  is  no  conlirmation  of  a 
sale  of  lands  unless  it  has  been  i)rolonged  for 
the  statutory  period  of  limitalion;  and  that  aa 
avoidance  may  be  made  any  time  before  the 


11 


S§  3G-39 


PERSONS. 


[Div.  I, 


statute  lias  harred  an  entry:  "  Citin,<^  Tucker  v. 
Morclaiid,  10  I'et.  £iS;  Boody  v.  McKi'uvcy,  23 
Me.  517;  Drake  v.  Hamscuj,  o  Oiiio,  251 -,  Jnck- 
son  V.  Jhnxh.ii,  14  .Johns.  !2l  ;  Urb:in  v. 
Crimen,  2  Uraiit,  !)(!;  Vamjhan  v.  Pnrr,  20  Ark. 
COO;  ronrhii's  v.  Toor/i iVs-,  21- Barb.  loO;  M'ttre 
V.  Brush,  1  McLivm,  63.3;  Moore  v.  Ahrnetliy, 
7  Blackf.  412;  Co/e  v.  Pennoyrr,  14  111.  158; 
Odlesple  V.  L'ffj^y,  12  W.  Va.  70;  IFft/Zace  v. 
La/ham,  52  Wi^.  201;  Proutv.  Wiley,  28  Mich. 
164;  see  also  1  Whart.  on  Cont.,  sec.  GO.     Less 


lapse  cf  time  than  the  statutory  period  of  lim- 
itations, to;^'ether  with  other  circumstances,  will 
amount  to  an  allirmance:  Schouler  on  Dom. 
Ilel.,  sec.  4.39. 

Tho  consideration  must  be  restored  upon 
disadirnianco,  where  the  contract  under  which  it 
was  received  was  entered  into  when  the  minor 
was  ei.';;hteen  years  of  age.  This  plain  state- 
ment does  away  with  the  perplexity  existing  in 
this  particular,  where  statute  has  not  made 
clear  the  law:  Schouler  ou  i)om.  Piel.,  sec.  44G. 


36.    Cannot  disaffirm  coniract  for  necei<mries. 

Sec.  3G.  A  miuor  cannot  disa£Srm  a  contract,  otherwise  valid,  to  pay  the 
reasonable  value  of  things  necessary  for  his  support,  or  that  of  his  family, 
entered  into  by  him  when  not  under  the  care  of  a  parent  or  guardian  able  to 
provide  for  him  or  them.  {Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  183;  took  effect  July  1,  1874.] 


Necessaries. — An  infant's  contract  for 
necessaries  binds  his  estate:  KeVy  v.  Davh,  49 
N.  H.  187;  Gordon  V.  Potter,  17  Vt.  348;  Dreed 
V.  Judd,  1  Gray,  455;  Shelton  v.  Pendleton,  18 
Conn.  417;  Strong  v.  Foote,  42  Id.  203;  Parsons 
V.  A'cy.s',  43  Tex.  557. 

To  this  enil  it  is  essential  that  the  credit  be 
originally  f;iven  to  the  infant  himself;  other- 
wise, he  is  not  chargeable,  although  he  may 
have  received  the  articles:  Tyler  on  Infancy, 
110;  Vaniry  v.  Yoiuirf,  11  Vt.  258;  Slm7nn  v. 
A^omv,  5  Ala.  42;  \Vai'inr/\.  Toll,  0  Johns.  131; 
Jiundcll  V.  Keeler,  7  Watts,  237;  Nicholson  v. 
Wilborn,  13  Ga.  4(57;  Sinklear  v.  Emert,  18  111. 
63.  Nor  is  it  then  the  contract  price  that  can 
be  recovered  by  the  vendor;  the  infant  is  re- 
sponsible only  for  the  reasonable  value  of  the 
things  furnished:  Locke  v.  Smith,  41  N.  H.  34G; 
Eaile  V.  Ueed,  10  Met.  387;  Price  v.  Sanders, 
60  Ind.  310. 

This  value  is  a  question  of  fact:  Locke  v. 
Smith,  41  N.  11.  34G,  Earle  v.  Peed,  10  Met. 
387;  Swift  V.  Bennet,  10  Cush.  43G;  Johnsoii  v. 


Lbieii,  C  Watts  &  S.  80;  Beeler  v.  Youncj,  1  Bibb, 
519;  Dubose  v.  Wheddnn,  4  McCord,  221.  But 
an  infant,  when  living  at  home  under  the  care 
of  his  pai'cnt  or  guardian,  and  supported  by  him, 
is  not  liable  for  necessaries.  Such  is  the  spirit 
of  the  above  section,  and  so  has  it  been  decided: 
Anijell  V.  McLe'lan,  IG  Mass.  31;  Ebicod  v. 
3Iycrs,  2  Head,  33;  J/ullv.  Connoly,  3  McCord, 
G;  Kline  v.  L'Amorenx,  22  Am.  Dec.  G52. 
Everj'^  person,  tiiereforo,  who  deals  with  an  in- 
fant is  bound  at  his  peril  to  incjuire  and  ascer- 
tain the  real  circumstances  of  the  infant,  and 
whether  he  is  in  a  situation  to  bind  himself  by 
a  contract  for  necessaries:  Id.;  Perriii  v.Wihon, 
10  Miss.  451 ;  Stnr'/v.  Perry,  19 Eng.  Com.  L.  508. 
What  tilings  are  necessaries. — Coke 
quotes  as  necessaries:  "  Necessary  meat,  drink, 
apparel,  necessary  physic,  and  siicli  other  neces- 
saries, and  likewise  his  good  teaching  and 
instruction,  whereby  he  may  profit  himself 
afterwards:  "  Co.  Lit.  172  a.  See  a  valuable 
collection  of  cases  on  this  subject  in  1  Whart. 
on  Cout.,  sees.  64-72. 


87.    No  certain  obligations. 

Sec.  37.  A  minor  cannot  disaffirm  an  obligation,  otherwise  valid,  entered 
into  by  him  under  the  express  authority  or  direction  of  a  statute. 

38.  Persons  without  understanding,  disabilities  and  liabilities  of. 

Sec.  38.  A  person  entirely  without  understanding  has  no  power  to  mate  a 
contract  of  any  kind,  but  he  is  liable  for  the  reasonable  value  of  things  fur- 
nished to  hi]n  necessary  for  his  support  or  the  support  of  his  family.  {Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  183;  took  effect  July  1, 
1874.] 

39.  Contracts  of  insane  subject  to  rescission. 

Sec.  39.  A  conveyance  or  other  contract  of  a  person  of  unsound  mind,  but 
cot  entirely  without  understanding,  made  before  his  incapacity  has  been  judi- 
cially determined,  is  subject  to  rescission,  as  provided  in  the  chapter  on  rescis- 
eion  of  this  code,  {Amoidment,  approved  March  30, 1874;  Amendments  1873-4, 
184;  took  effi'ct  July  1,  1874.] 


A  person  entirely  -writhout  understand- 
ing can  nuke  no  contract.  This  section  ren- 
ders void  tiie  contract  of  an  insane  person. 
And  see  /)os/,  sec.  1.J50;  Harris  v.  Harris,  64 
Cal.  lOS;  Boini^  v.  llarqrave,  16  Id.  560;  Rob- 
inaon  v.  //mt-s  40  1. 1.  470;  Mitchell  v.  Ilockett, 


Desilver,  5  Rawle,  111;  Bensell  v.  Chancellor, 
5  Whart.  371;  Bogers  v.  Walker,  6  Pa.  St.  371; 
and  maintained  in  Dexter  v.  Ilall,  15  Wall.  9; 
Van  Dusen  v.  Sweet,  51  N.  Y.  378.  But  the 
weight  of  authority  is  to  regard  the  contracts 
of  lunatics,  at  least  before  an  inquisition  of 


25  Id.  538.    It  is  so  determined  also  in  Estate  of    lunacy,  as  voidable  merely:  Jackson  v.  Oumaer, 

12 


Faiit  I.] 


PERSONS. 


§§  40,  41 


2  Cow.  552;  T)ir]raham  v.  Baldwin,  9  K".  Y.  45; 
JJallett  V.  Ocd-e-;  1  Cusli.  2i;G;  Carrer  v. 
Sem-f,  4  Allen,  .vCC;  Arnold  v.  Richmond  Iron 
Works,  1  Gia\',  4.34;  Basnett  v.  Brown,  105 
Mass.  551;  C'Aew  v.  Bank  of  BaUimorc,  14  MJ. 
299;  //ojv;/  v.  J/ch^on,  f-^  Me.  45:^;  BrerUn- 
rid{/e  v.  Orm-hi/,  1  J.  J.  Marsh.  230;  Crons"  v. 
Ilobnan,  19  Iml.  30;  Homn-.t  v.  Pumphm/,  24 
Id.  2:;i;  jN^c/toi  V.  TnOmoH,  53  Id.  42;  yl/ ere  v. 
Berryli'  I,  27  Iowa,  54'1;  Elatnn  v.  Jasper,  45 
Tex.  4C9;  fiwr/.e  v.  yH/ew,  29  N.  II.  100;  AVi/on 
V.  iTo^ow,  37  N.  J.  L.  113;  Blakeley  v.  i/Z«Ae- 
%,  33  N.  J.  Eq.  502. 

(S)  iiilnxicatlon  doe-f  not  per  se  render  a  con- 
tract void,  but  voidable  only:  Story  on  Cont., 
sec.  87;  llroadwdter  v.  Dame,  10  Mo.  277; 
Joe^t  V.  IVilUams,  42  Ind.  305;  Bates  v.  Ball, 
72  111.  108. 

With  respect  to  the  degree  of  intoxication 
necessary  to  avoid  a  contract,  see  U'ade  v.  Col- 
vert,  12  Am.  Dec.  052,  and  note. 

Avoiding  contracts  on  the  ground  of 
msatal  wealiaass. — If  there  has  been  no  un- 
fairness or  impo.'ition,  or  undue  advantage 
taken,  and  the  insanity  was  unknown  to  tlie 
other  party,  an  executed  contract  \\  ill  only  be 
avoided  upon  the  condition  that  the  party 
seeking  relief  will  do  complete  equity  by  re- 
storing what  ho  has  received:  Canjield  v.  Fair- 
banks,  03  Barb.  401;  Baton  v.  Baton,  37  N.  J. 
L.  103;  Lincoln  v.  Burkmaster,  32  Vt.  059; 
Carr  v.  IloUiday,  5  Ired.  Eq.  07;  Arnold  v. 
Biclimoiid  Iron  Works,  I  Whart.  &  Stille's 
Med.  Jur.,  sec.  9;  Youinj  v.  Stevens,  48  N.  11. 
13.>;  Scanhn  v.  Cobb,  85  111.  200;  Wilder  v. 
Weakley,  34  Ind.  184;  Jackson  v.  Ki.ig,  15  Am. 
Dec.  30t).  in  note;  S.  C.  2^.  Bank  v.  Moore,  78 
Pa.  St.  414. 

V7hcro  the  insanity  is  laiown  to  the  other 
party  to  the  contract,  or  where  lie  has  informa- 
tion such  as  would  lead  a  prudent  man  to  such 
knowledge,  the  contract  is  invalid:  Lincoln  v. 
Buckmanter,  32  Vt.  052;  Henry  v.  Fine,  23 
Ark.  417;  Matthie-saeu  Co.  v.  McMahon,  38  N. 


J.  L.  530;  Lancaster  etc.  Bank  v.  Moore,  78 
Pa.  St.  4u7. 

Afi:2r  inquisition  of  lunacy,  and  judicial 
determination  that  the  person  is  a  lunatic,  bia 
contracts  are  void:  Filzliinjh  v.  Wilcox,  12  Barb. 
235;  Wadsworth  v.  Shfrnian,  14  Id.  100;  Pearl 
V.  McHom'll,  3  J.  J.  Marsh.  058;  McCreifjht  v. 
Aiken,  Ilico,  50;  Leonard  v.  Leonard,  14  Pick. 
280;  EUton  v.  Ja.-per,  45  Tex.  409. 

And  the  as.sertion  that  the  contract  was 
made  during  a  lucid  interval  throws  upon  the 
person  making  such  assertion  the  burden  of 
proving  s.inity  and  competency  at  the  time  tlie 
act  was  done:  JJarden  v.  Hays,  9  Pa.  St.  151; 
Emery  v.  Iloyt,  40  111.  258;  Menkins  v.  Lifjht- 
Tier,  18  Id.  282;  Case  of  Cochran'. ■)  U'Ul,  15Am. 
Dec.  1 16,  and  note. 

Liability  for  necessaries. — Unsoundness 
of  mind  does  not  relieve  one  from  liability  for 
necessaries:  IJallelt  v.  Oabs,  1  Cubh.  296; 
Kendall  v.  May,  10  Allen,  59;  La  Rue  v.  Gil- 
kyson,  4  Pa.  St.  375;  Lancaxtir  Bank  w  Moore, 
78  Id.  407;  Ex  parte  Northinr/ton,  37  Ala.  496; 
San-yer  v.  Liffkin,  56  Me.  308;  Van  I  loon  v. 
llann,  39  N.  J.  L.  207;  D'irby  v.  Cabanne,  1 
jMo.  App.  127;  Henry  v.  Fine,  2.'i  Ark.  417; 
Tally  V.  Tally,  2  Dev.  &  B.  E(].  385;  Richard- 
son  V.  Stronij,  13  Ired.  L.  100;  Snrle-i  v.  Pipkin, 
05  N.  C.  513;  McCormick  v.  Littler,  85  111.  02. 

Sometimes  this  liability  is  said  to  be  an  im- 
plied one,  on  the  quantum  meruit;  it  is  so  inti- 
mated in  section  38,  supra,  and  is  so  deter- 
mined in  Jlcdlelt  v.  Oake-i,  1  Cush.  296;  Ex 
jxirte  Northincjton,  37  Ala.  490;  Juries  v.  Pip- 
kin, 09  N.  C.  513. 

In  other  cases  it  is  said  that  express  con- 
tracts of  lunatics  for  nficessaiies  at  fair  prices 
are  binding:  L'ichard<on  v.  Strong,  13  Ired.  L. 
100;  llinry  v.  Fine,  23  Ark.  417;  McCormick 
V.  Littler,  85  111.  62. 

Ratification  of  contract  of  insane  person: 
See  tiie  cases  collected  upon  this  point  in  the 
reporter's  note  to  Blakeley  v.  Blakeley,  33  N.  J. 
Eq.  502. 


40.    Powers  rf  persons  whose  iiicapncihj  litxs  been  adjudged. 

Sec.  40.  After  Lis  incapacity  has  been  judicially  determined,  a  person  of 
unsound  mind  can  make  no  conveyance  or  otber  contract,  nor  delegate  any 
power  or  waive  any  right,  until  his  restoration  to  capacity.  Bat  a  certificate 
from  the  medical  superintendent  or  resident  physician  of  the  insane  asylum  to 
•which  such  person  may  have  been  committed,  showing  that  such  person  had 
been  discharged  therefrom,  cured  and  restored  to  reason,  shall  establish  the 
presumption  of  legal  capacity  in  such  jiersou  from  the  time  of  such  discharge. 
[Amendmenl,  approved  March  30,  1878;  Amendmeids  1877-8,  75;  look  effect  sur- 
I'lelh  day  afUr passage. \ 


Lucid  intervals. — Prior  to  the  amendment 
of  1S78,  the  judicial  determination  of  iucajjacity 
provided  for  in  this  section,  as  it  then  stood, 
was  prima  f'cie  evidence  only  as  to  the  lack  of 
testamentary  capacity:  Estate  of  Johnxon,  57 
Cal.  529.  The  section  receiving  this  con- 
struction read  as  follows; 

"Sec.  40.    After  his  incapacity  has  been  judi- 


cially determined,  a  person  of  unsound  mind 
can  m  ike  no  conveyance  or  other  contract,  nor 
delegate  any  power,  nor  waive  any  right,  un- 
til his  restoration  to  capacity  is  judicially  de- 
termined. But  if  actually  restored  to  capacity, 
he  may  make  a  will,  though  his  restoration  is 
not  thus  iletermined." 

See  note  to  preceding  section. 


41.   Minora  liable  for  wrongs,  but  not  liable  for  exemplarg  damages. 

Sec,  41.  A  minor,  or  person  of  unsound  mind,  of  whatever  degree,  is  civilly 
liable  for  a  wrong  done  by  him,  but  is  not  liable  in  exemplary  damages  unless 
at  the  time  of  the  act  he  was  capable  of  knowing  that  it  was  wrongful. 

13 


§§42-45 


PERSONAL  RIGHTS. 


[Div.  I, 


Minor's  liability  for  torts. — It  is  a  general 
rule  that  infants  are  civilly  liable  for  torts 
committed  by  them  in  the  same  manner  and  to 
the  same  extent  as  are  persons  of  full  age: 
Cooley  on  Torts,  103;  Schouler  on  Dom.  Rel. 
563;  Bingham  on  Infancy,  110;  Reeve's  Dom. 
Rel.  258;  2  Kent's  Com.  241;  Shaw  v.  Coffin,  53 
3Me.  2.34;  Elwi'll  v.  Martin,  32  Vt.  217;  A'a'/  v. 
Tubbs,  50  Id.  6SS;  Conway  v.  Ried,  (iG  INIo.  340; 
Peterson  v.  Ilaffnor,  59  Ind.  130;  Matthews  v. 
Cou-an,  59  111.  341;  Wilson  v.  Garrard,  Id.  51; 
Eaton  V.  J  J  ill.  50  N.  H.  235;  Campbell  v. 
Stakes,  19  Am.  Dec.  501;  Peirjne  v.  Sutdife,  17 
Id.  756;  Word  v.  Vance,  9  Id.  683;  Bidlock  v. 
Babco'k,  3  Wend.  391;  Wallace  v.  Morse,  5 
Hill,  391;  Tijn  v.  Tift,  4  Denio,  175;  Robbhis 
V.  Mount,  33  llow.  Pr.  24;  Huckting  v.  Enrjel, 
17  Wis.  2:]7;  Oliver  v.  McGlellan,  21  Ala.  675. 

Action  sounding  in  contract  cannot  ue 
changed  into  one  ex  delicto,  and  by  so  declaring 
hold  the  infant  responsible:  1  Am.  Leatl.  Cas. 
281;  Gilson  v.  Spear,  ,33  Vt.  311;  Campbell  v. 
Stakes,  19   Am.  Dec.  561;    Vcusse  v.  Smith,  6 


Cranch,  231;  Schenh  v.  Stronrj,  4  N.  J.  L.  87; 
Campbell  v.  Perkins,  8  N.  Y.  441.  There  must 
be  a  tort  independent  of  the  contract:  People  v. 
Kfndall,  37  Am.  Dec.  240;  Munrjer  v.  Ilesx,  28 
Barb.  75;  Studicell  v.  Shafter,  54  N.  Y.  249; 
Moore  v.  Eastman,  1  Hun,  578;  Wilt  v.  Welsh, 
6  Watts,  9;  Schenk  v.  Stronrj,  4  N.  J.  L.  87; 
Prescott  V.  iVorrw,  32  N.  H.  101;  Fitts  v.  y7a«, 
9  Id.  441. 

Infant's  false  representation  as  to  his 
age:  .See  the  note  to  llamplirey  v.  Doujluss, 
33  Am.  Dec.  184,  where  the  cases  and  text- 
writers  are  referred  to  upon  the  difference  of 
opinion  existing,  in  regard  to  an  infant's  liabil- 
ity where  he  falsifies  his  age. 

An  insane  person  is  liable  civilly  for  his 
torts:  Lancaster  Bank  v.  Moore,  78  Pa,  St. 
407;  Morse  v.  Crawford,  17  Vt.  499. 

But  in  slander,  as  the  intent  is  a  material 
element  of  the  wrong,  the  rule  is  different: 
Dickinson  v.  Barber,  6  Am.  Dec,  58;  Yeates  v. 
Peed,  4  Blackf.  463;  Horner  v.  Marshall,  5 
Munf,  466;  Bryant  v.  Jackson,  6  Humph.  199. 


42.   Minors  may  enforce,  their  rights. 

Sec.  42.  A  minor  may  enforce  bis  rifrhts  by  civil  action,  or  other  legal  pro- 
ceedings, in  the  same  manner  as  a  person  of  full  age,  except  that  a  guajrdian 
must  conduct  the  same. 


PAET  n. 

PERSONAL  RIGHTS. 

43.    General  personal  rights. 

Sec.  43.  Besides  the  personal  rights  mentioned  or  recognized  in  the  Political 
Code,  every  person  has,  subject  to  the  qualifications  and  restx'ictions  provided 
by  law,  the  right  of  protection  from  bodily  restraint  or  hann,  from  personal 
insult,  from  defamation,  and  from  injury  to  his  personal  relations. 

See  Pol.  Code,  sees,  37,  50-60;  Pen.  Code,     almost  to  justify,    certainly  to  mitigate,   the 


crime  of  assault  and  Ijattery  sufBcient  founda- 
tion for  a  civil  action?  Compare  Adams  v. 
Rivers,  1 1  Barl).  390,  where  an  action  for  use 
of  insulting  words  by  one  standin;^'  in  the  high- 
way in  front  of  plaintiff's  land  was  sustained 
on  the  ground  of  tho  trespass  involved  in 
standing  in  the  highway  after  being  ordered 
to  depart,  for  the  malicioaa  purpose  evinced." 


sees.  340-319. 

The  code  commissioners,  as  an  explanation 
in  part  of  the  above  section,  say:  "  There  is  no 
doubt  that  persistent  public  insults,  e.  g.,  con- 
tinually shouting  at  a  person  in  the  street,  or 
even  silently  dogging  him,  are  personal  in- 
juries against  which  he  ou'^'ht  to  be  protected. 
Why   is   not   an    act  which   the   law   admits 

44.  Dffamalion,  what. 

Sec.  44.     Defamation  is  effected  by: 

1.  Libel; 

2,  Slander. 

45.  Libel,  what. 

Sec.  45.  Libel  is  a  false  and  unprivileged  publication  by  writing,  printing, 
picture,  effigy,  or  other  fixed  representation  to  the  eye,  which  exposes  any  per- 
son to  hatred,  contempt,  ridicule,  or  obloquy,  or  which  causes  him  to  be  shunned 
or  avoided,  or  which  has  a  tendency  to  injure  him  in  his  occupation. 

Privileged  publication:  See  sees.  47,  48,  quires  that  the  words  charged  as  libelotia 
infra. 

Iiibel. — The  code  observes  the  well-known 
distinction  between  libel  and  slander,  that  one 
is  an  oral  defamation,  the  other  a  defamation 
of  a  more  fixed  character.    This  section  re- 


sliould  be  false,  unpririleged,  published,  and 
of  the  effect  there  mentioned.  If  thus  libel- 
ous, the  law  implies  that  it  was  malicious: 
Lick  V.  Owen,  47  Cal.  252;  Wilson  v.  Fitch,  41 
Id.  380;  Sanderson  v.  Caldwell,  45  N.  Y.  398; 


14 


Part  II.] 


PERSONAL  PJGHTS. 


§46 


Burt  V.  Mr  Bain,  2d  Mich.  266;  Dillard  v. 
Colling  25  Gratt.  343;  Baker  v.  Youvg,  44  111. 
42;  Lucas  v.  Case,  9  Bush,  297.  But  though 
malicious  in  law,  it  may  not  be  nialicioua  in 
fact,  and  defendant  may  give  in  evidence  cir- 
r.umstances  showing  no  actual  malice  to  miti- 
gate damages:  See  the  California  cases  supra. 

What  is  meant  by  an  unprivileged  publica- 
tion may  be  understood  by  consulting  section 
47,  wfra,  defining  privileged  publications.  To 
make  the  latter  actionable,  they  must  be  proved 
to  be  malicious:  See  sec.  48,  infra. 

Tlie  libel  must  be  published.  The  same  is 
true  of  slander.  To  constitute  an  actionable 
publication,  there  must  be  a  publication  to  some 
third  person,  that  is,  to  some  one  other  than 
the  autlior  and  the  person  of  whom  the  words 
are  used:  Laylon  v.  Harris,  3  Harr.  (Del.)  40G; 
Miller  v.  Butler,  6  Cush.  71;  Johnson  v.  Slob- 
bins,  5  Ind.  304;  Vary  v.  Allen,  39  Wis.  482. 
As  to  the  necessity  and  form  of  alleging  the 

Eublication,  see  Townshend  on  Slangier  and 
ibel,  sec.  324.  Sending  a  sealed  libelous  let- 
ter to  the  plaintiff  is  not  actionable  if  not  read 
by  some  third  person:  Li/lev.  Clasou,  I  Cai.  531. 
For  a  very  comprehensive  collection  of  ad- 
judications, showing  what  pubr.cations  are  and 
what  are  not  libelous,  see  4  Wait's  Actions  and 
Def.,  tit.  Libel.  In  this  state  the  following 
have  been  held  libelous:  A  publication  which 
tends  to  reflect  shame  upon  the  plaintiff,  and 
to  hold  him  up  as  an  object  of  ridicule:  Lick 
V.  Otc-en,  47  Cd.  252.  So  an  article  in  a  news- 
paper imputing  grave  offenses  and  dishonest 
practices  is  actionable  per  sc:  Wilsun  v.  Filch, 
41  Id.  3G3.  And  unnecessarily  to  charge  one's 
attorney  with  making  a  collusive  agreement 
with  the  opposite  counsel:  Wyatt  v.  JJuell,  47 
Id.  02i. 

But  "this  company,  for  good  and  sufficient 
reasons,  has  resolved  to  dismiss  D.  D.  Maynard 
from  its  service,"  is  not  libelous  per  se:  lUay- 
narcl  v.  F.  F.  Ins.  Co.,  47  Cal.  207.  Nor  are 
the  words,  "Clarke  is  a  carpenter  by  trade,  is 
interested  in  the  Tdoore  title,  and  has  (igared 
quite  prominently  in  some  of  the  squatter  riots 
which  have  occurred  in  the  Western  Addition:  " 
Clarke  v.  Flch,  41  Id.  472.  Nor  word  relatings 
to  an  unlawful  business  carrieil  on  by  the 
plaintiff.  The  illegality  of  the  business  is  an 
answer  to  the  complaint:  Johnson  v.  Slmonlon, 
43  Id.  243. 

Whether  a  libel  is  actionable  per  se  or  not  is 
to  be  determined  wholly  by  the  sense  in  which 


the  words  used  are  generally  understood,  and 
when  words  have  a  general  and  notorious  sig- 
nification, the  courts  will  take  judicial  notice  of 
it:  Clarke  v.  l<itch,  41  Cal.  472.  Consult  Town- 
abend  on  Slander  and  Libel,  sec.  96  et  seq.,  in 
reference  to  hearers  or  readers  understanding 
the  meaning  of  the  language  used. 

Justification. — The  defendant  in  a  civil 
action  for  libel  may  set  up  the  truth  of  the 
matter  charged  as  a  defense:  Code  Civ.  Proc, 
sec.  401;  Thrall  v.  Smiley,  9  Cal.  530;  Hoot  v. 
Kimj,7  Cow.  G13;S.C.,  4  Wend.  113;  Starkieon 
Slander  and  Libel,  sec.  528;  Townshend  oa  Slan- 
der and  Libel,  sec.  211.  But  the  defense  of  truth 
must  be  specially  pleaded,  and  cannot  be  given 
in  evidence  under  the  general  issue:  Thrall  v. 
Smiley,  supra;  Amlreics  v.  Van  Duzer,  11 
Johns.  38;  Snyder  v.  Andrews,  6  Barb.  43; 
Douge  v.  Pearce,  13  Ala.  127,  and  the  text- 
books uhi  supra,  abundantly  supported  by 
authority.  The  justification  must  bo  as  broad 
as  tlie  lil^el:  Sltwell  v.  Barter,  19  Wend.  487; 
Downey  v.  Dillon,  52  Ind.  442;  Whiltemore  v. 
Weiss,  33  Mich.  348;  Palmer  v.  Smith,  21 
^Minn.  419.  When  interposed  without  reason- 
able ground  for  believing  that  it  can  be  proved, 
it  will  be  deemed  an  aggravation  of  the  injury, 
and  go  to  enhance  the  damages:  Oilman  v. 
Lowell,  8  Wend.  573;  Bobiusoit,  v.  Drnmmond, 
2i  Ala.  174;  Shartle  v.  Ilutrhinson,  3  Or.  337; 
Gorman  v.  Sutton,  32  Pa.  St.  247.  See  the  note 
to  section  401  of  Code  of  Civil  Procedure  on 
this  pro!)osition. 

The  belief  of  the  defendant  in  the  truth  of 
the  charges  is  no  justification:  WHson  v.  Fitch, 
41  Cal.  303;  Moore  v.  Stevenson,  27  Conn.  14; 
Sni'irt  V.  Blatichard,  42  N.  11.  137;  Hotchkiss 
V.  Porter,  30  Conn.  314;  Duncan  v.  Brown,  15 
B.  ]Mon.  186.  But  that  belief  in  the  truth  may 
be  shown  in  mitigation,  see  ILuhon  v.  Dale,  19 
Mich.  35;  Farr  v.  Rasco,  9  Id.  353.  As  to  the 
admissibility  of  evidence  of  rumors  and  com- 
mon report,  see  3  Sutherland  on  Dam.,  GSl 
et  seq. 

Mitigation. — In  slander,  the  rule  supported 
by  the  greatest  weight  of  authority  is  that 
under  tlio  general  issue  evidence  of  rumors  and 
reports  in  mitigation  of  damages  is  not  admin- 
sible:  Alderman  v.  French,  11  Am.  Dec.  130, 
in  note;  Anthony  v.  Stephens,  13  Id.  499,  in 
note.  But  that  it  is  admissible  to  rebut  mal- 
ice, see  Id.;  and  see  sec.  401,  Code  Civ.  Proc. 

A  corporation  may  be  held  responsible  for 
a  libel:  Maynard  v.  F.  F.  Ins.  Co.,  47  Cal.  207. 


46.   Slander,  what. 

Sec.  4G.    Slander  is  a  false  and  unprivileged  publication  other  than  libel,  which: 

1.  Charges  any  person  with  crime,  or  with  having  been  indicted,  convicted, 
or  punished  for  crime; 

2.  Imputes  in  him  the  present  existence  of  an  infectious,  contagious,  or  loath- 
some disease; 

3.  Tends  directly  to  injure  him  in  respect  to  his  office,  profession,  trade,  or 
business,  either  by  imputing  to  him  general  disqualification  in  those  respects 
■which  the  office  or  other  occupation  peculiarly  requires,  or  by  imputing  some- 
thing with  reference  to  his  office,  profession,  trade,  or  business  that  has  « 
natural  tendency  to  lessen  its  profit; 

4.  Imputes  to  him  impotence  or  a  want  of  chastity;  or, 

6.  Which,  by  natural  consequence,  causes  actual  damage. 

15 


§47 


PERSONAL  RIGHTS. 


[Div.  I, 


Slander, — Of  the  above  classes  of  unpriv- 
ileged publications,  the  first  three  plahily 
coujprise  thdse  utterances  which  are  recognized 
as  actionable  without  allegation  or  proof  of 
actual  damage,  that  is,  those  slanderous  words 
that  are  actionable  ;)cr  se,  from  tlie  sj^caking  of 
which  the  law  presumes  damage  to  follow. 

Sabd.  1.  Imputing  crime. — Charging  a 
person  with  the  commission  of  some  crime  is 
actionable  per  sf:  Merk  v.  Gekkneiiser,  50  Cal. 
631;  Scott  V.  Harbor,  18  Id.  704;  Pink  v. 
Catanich,  51  Id.  420;  Drooker  v.  Coffin,  5  Johns. 
18S;  Anonymous,  60  N.  Y.  202;  IlolUngsworlh  v. 
S/iaio,  19  Ohio  St.  430;  Davis  v.  Brown,  27  Id. 
32G;  Fdbert  v.  Daiifrrinaii,  2Q  Wis.  518;  Mc- 
Cuen  V.  Lucllam,  17  N.  J.  L.  12;  Pollard  v. 
L;/on,  91  U.  S.  225.  And  in  the  second  portion 
of  this  subdivision,  the  charging  a  man  with 
liaving  been  indicted,  convicted,  or  punis'.ied 
for  crime  is  made  likewise  actionable.  This 
is  in  keeping  with  the  reason  of  making  the 
imputation  of  crime  slanderous  per  se;  fur  the 
injury  consists  not  in  the  exposure  to  prosecu- 
tion for  the  alleged  crime,  but  in  the  disgrace 
and  loss  of  reputation  which  the  law  presumes 
to  result  from  such  an  imputation:  Coolcy  on 
Torts,  200;  Davis  v.  Brow?!,  27  Ohio  St.  320; 
Townshend  on  Slander  and  Libel,  sec.  158. 

As  to  the  effect  of  words  imputing  the  com- 
mission of  a  crime  in  another  state  or  country, 
and  whether  they  are  actionable  or  not,  see 
Townshend  on  Slander  and  Libel,  sec.  159,  and 
the  note  to  Shipp  v.  McCmw,  9  Am.  Dec.  613. 

Subd.  2.  Imputing  disease. — Charging  a 
person  with  having  a  loathsome  or  contagious 
disease  is  actionable  perse:  Pollard  v.  Lyon,  91 
U.  S.  225;  as  the  venereal  disease:  Goldcrman 
v.  Stearns,  73  Mass.  181 ;  ]y'illianisv.  f/oldridf]e, 
22  Barl).  398;  or  gonorrhea:  Watson  v.  Mc- 
Carthy,  2  Ga.  57;  Xichds  v.  Guy,  2  Carter, 
82;  Williams  v.  Iloldrllge,  supra;  or  leprosy: 
Id.  The  words,  however,  must  import  the 
present  existence  of  the  disease:  Nichols  v. 
Gui/,  supra;  Williams  v.  Jloldrldje, supra;  Irons 
V.  Fidl,  OR.  I.  216;  Bruce  v.  Soide,  69  Me.  560; 
Kauchcr  v.  Blinn,  29  Ohio  St.  62. 

Subd.  3.  Injury  to  person  in  his  calling.— 
For  a  very  valuable  article  on  this  brauch  of 
the  subject  of  slander,  in  which  the  various 
principles  involved  therein  are  stated  in  the 
form  of  rules,  see  Mr.  Lawson'a  nionograjih  in 
15  Am.  Law  llov.  573.  Consult  also  Townshend 
on  Slander  ami  Libel,  sees.  179  et  seq.  With 
respect  to  the  case  law  of  mercantile  a':;encics, 
and  when  they  may  bo  held  liable  for  defama- 
tion, see  the  note  in  18  Fed.  Rep.  216. 

See  also  application  of  the  law  of  the  above 
subdivision  in  Butler  v.  ILiwes,  7  Cal.  87,  where 
spocial  diimagcs  were  held  not  necessary  to  be 
alleged  by  a  clerk  for  words  falsely  spoken  of 
him  in  sucli  capacity. 

Subd.  4.  Impotence,  or  -want  of  chastity. 
In  the  absence  of  any  statutory  provision,  it  is 
not  an  ac'Jouable  slander  par  se  to  charge  want 
of  chastity:  See  Townshend  on  Slander  and 
Libel,  sec.  172.  The  above  section  makes  no 
distinction  in  terms  l)etween  words  actionable 
per  se  and  words  that  are  not,  but  simply  de- 
fmes  what  words  are  slanderous  generally,  be- 


ing seemingly  declaratory  of  the  law  as  it  stood 
before  the  code,  and  certainly  not  expn^ssly 
dispensing  with  the  necessity  of  proving  spe- 
cial damage  in  this  the  fourth  class  of  slander- 
ous words.  It  might  be  urged  very  forcibly 
that  if  not  actionable  ^jcr  se  it  would  not  have 
been  necessary  to  make  this  division  of  words 
imputing  impotency  or  want  of  chastity,  as 
Buch  words,  if  not  actionable  per  se,  would 
clearly  come  under  the  fifth  subdivision,  which 
gives  an  action  where  actual  damnge  naturally 
results:  See  Pink  v.  Catanich,  51  Cal.  421, 
where  the  words  "you  are  a  whore"  were 
treated  as  actionable  by  counsel,  and  possibly 
by  the  court;  see  also  the  very  elaborate  dis- 
cussion by  the  supreme  court  of  the  United 
States  in  Pollard  v.  Lyon,  91  U.  8.  225,  where 
charging  a  woman  with  fornication  in  tlie  Dis- 
trict of  Columbia  was  held  not  actionable  per 
se.  That  many  of  our  states  have  made  the 
imputation  of  the  want  of  cliastity  p-r  se  ac- 
tionable, see  Townshend  on  Slander  and  Libel, 
sees.  153,  172,  in  notes. 

Sabd.  5.  Wrsrds  causing  actual  dam- 
age — Under  the  plain  definitions  of  the  book, 
this  clas3  embraces  words  not  actionable  perse. 
Says  Tov/nshcuil  on  Slander  and  Libel,  sees. 
140,  147:  "The  loss  which  ensues  as  a  '  neces- 
sary consequence '  is  termed  '  damage;'  the  losa 
which  ensues  as  a  '  natural  and  proximate  con- 
sequence '  is  termed  '  special  damage.  •  »  *  • 
Language  of  the  first  of  these  classes  is  *  *  * 
actionable  per  se.  *  *  *  The  publication 
of  language  of  the  second  of  these  classes  doea 
not7>fr  .se  confer  a.  j)rlma  facie  right  "f  action, 
and  is  not  7)er  se  a  prima  facie  wrong."  Foi' 
examples  of  special  damage,  or  actual  damagti 
as  it  is  called  by  the  code,  see  3  Sutherland  on 
Dam.  662;  and  Townshend  on  Slander  and 
Libel,  sees.  197  ct  seq.,  where  a  great  vari- 
ety of  cases  are  collected  in  which  this  ques- 
tion has  arisen. 

Ju3tiajat:oa:  See  note  to  sec.  45,  ante.  To 
justify  the  charge  of  a  crime,  "the  defendant 
is  required  to  prove  the  plaintiff  guiliy  of  the 
crimes  imputed  to  him  by  the  slanderous 
words,  by  testimony  sufficient  to  convict  the 
plaintiff  of  those  charges  on  a  criminal  trial:" 
Merk  v.  Gelzhaeuser,  51  Cal.  631. 

Variance. — lb  is  not  necessary  to  prove  that 
the  slinderous  words  were  spoken  on  the  pre- 
cise day  alleged  in  the  complaint:  Xorris  v. 
EHiott,  39  Cal.  72.  Nor  is  it  a  fatal  variance 
that  the  libelous  words  were  used  of  the 
plaintilF  and  another;  the  injury  is  several: 
Pobhiett  V.  McDonald,  3  West  Coast  liep. 
787. 

Slander  of  title:  See  1  Am.  Lead.  Cas.  *105; 
McDaniel  v.  Baca,  2  Cal.  320;  Swan  v.  Tappan, 
5  Cush.  101;  Townshend  on  Slander  and  Libel, 
sec.  1.30.  A  case  involving  this  subject  arose 
in  E  Iwards  v.  Burris,  60  Cal.  157,  and  the  requi- 
sites to  the  maintenance  of  this  action  were 
there  declared  as  follows:  "Unless,  therefore, 
a  plaintilF  shows  title  or  interest  in  the  property, 
falsehood  and  malice  in  the  utterance  of  slander 
concerning  it,  and  an  injury  to  the  plaintiff, 
there  is  no  cause  of  action."  And  such  interest 
must  be  set  out  in  the  complaint:  Id. 


47.    What  publications  are  privileged. 

Sec.  47.     A  privileged  publication  is  one  made: 
1.  In  the  proper  discharge  of  an  official  duty; 

16 


Pa»t  n.] 


PERSONAL  RIGHTS. 


141 


2.  In  any  legislative  or  judicial  proceeding,  or  in  any  other  official  proceed- 
ing authorized  by  law; 

3.  In  a  communication,  without  malice,  to  a  person  interested  therein,  by  ona 
"who  is  also  interested,  or  by  one  who  stands  in  such  a  relation  to  the  persoDr 
interested  as  to  afford  a  reasonable  ground  for  supposing  the  motive  for  the 
communication  innocent,  or  who  is  requested  by  the  person  interested  to  giv&- 
the  information; 

4.  By  a  fair  and  true  report,  without  malice,  of  a  judicial,  legislative,  or  other 
public  official  proceeding,  or  of  anything  said  in  the  course  thereof.  [Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4, 184;  took  effect  July  1, 1874.] 

Privileged  publioation. — In  order  to  hold     judicatories:  Hoar  v.  Wood,  3  Met.  193;   York 


a  person  responsible  for  making  any  one  of  the 
above  privileged  publications,  it  is  necessary 
to  prove  express  malice.  While  tlie  law  will 
exempt  a  person  from  liability  for  words  spoken 
or  written  uuder  circumstances  which  call  for 
Buch  expressions,  yet  to  take  advantage  of  like 
circumstances  to  vent  private  ill-will,  and 
design  to  injure,  justly  makes  the  person  so 
acting  answerable  for  what  he  does:  See  Wilson 
V.  Fitch,  41  Cal.  383,  and  the  various  cases 
vifra  in  the  course  of  this  note.  As  is  said  in 
Wrijht  V.  Woodijate,  2  Cr.  M.  &  R.  573,  the 
proper  meaning  of  privileged  communication  is 
that  tiie  occasion  on  wliich  the  communication 
was  made  rebuts  the  inference  prima  fane 
arising  from  a  statement  prejudicial  to  the 
character  of  the  plaintiff,  and  puts  it  upon  him 
to  prove  that  tiiere  was  malice  in  fact,  that  the 
defendant  \\  as  actuated  by  motives  of  personal 
sjjite  or  ill-will,  iudependent  of  tlie  occasion  on 
■which  the  connniinication  was  made. 

Subd.  2.  LogislativG  or  judicial  prooeed- 
Ings. — Le'iidtire  pweediiiys  are  privileged: 
Cnffinv.  Coffin,  3  Am.  Dec.  189;  S.  C,  4Mass,  1; 
Tuwnsheml  on  Slander  and  Libel,  sec.  217. 

J  adicia'  proceedings. — Says  the  supreme  court 
of  New  York,  in  Mar^h  v.  Eitsujorh,  50  N.  Y. 
311:  "The  law  is  well  settled  tliat  a  counsel  or 
party  conducting  judicial  proceedings  is  privi- 
leged in  respecb  to  words  cr  wriLmgs,  used  in 
tlio  course  of  suc'.i  proceedings,  reflecting  inju- 
riously  upon    others   when    such   words    and 


Pecme,  2  Gray,  282;  Farnsivorth  v.  Storrs,  ^ 
Cush.  412;  Mayo  v.  Sample,  18  Iowa,  300;  /Jolt 
v.  Pardons,  23  Tex.  9;  Ilastiyu/s  v.  Lusk,  22 
Wend.  410;  Milam  v.  Burnsides,  1  Brev.  295;^ 
Forbes  v.  Johnson,  11  B.  Mon.  48;  llosmer  v. 
Lovdand,  19  Barb.  Ill, 

Witnesses  are  protected  from  action  for  words 
spoken  in  giving  testimony  when  pertinent  and 
responsive:  Terni  v.  fdiows,  21  La.  Ann.  375; 
Perkins  v.  Mitchell,  31  Barb.  461;  Smith  \. 
Howard,  28  Iowa,  51;  Barnes  v.  McCrate,  32 
Me.  442. 

Subd.  3.  Person  interested  in  commu- 
nication. — A  common  instance  of  communica- 
tions being  privileged  when  made  by  one  to  an- 
other interested  party  is  the  case  of  communica- 
tions of  church  members  to  the  governing  body 
complaining  of  the  conduct  of  a  brother  member, 
being  privieged  are:  J,'emi)ir/tou  v.  Cov/don,  13 
Am.^Dec.  431;  Brad.'nj  v.  Heath,  12  Pick.  163; 
Kleizer  v.  Syvimes,  40  Ind.  562;  Ho't  v.  Par- 
sons,  23  Tex.  9;  O'Donughue.  v.  .VcGovern,  23 
Wend.  26;  Dial  v.  /JoU^r,  0  Ohio  St.  243;  r.nd 
see  the  note  to  Bodwell  v.  Osgood,  15  Am.  Dec. 
232;  so  also  a  report  made  by  a  committee  of 
an  Odd  Fellows'  lodge  recommending  the  cxpul- 
feicm  of  a  memljcr  for  perjury,  is  jirivileged: 
Kirkoatrick  v.  Exjle  Lodije,  26  Kan.  331;  sea 
alsn  Slnirtlef  v.  Sleren.^,  51  Vt,  501;  S.  C.,  31 
Am.  Reji.  638,  and  note. 

Generally  one  is  protected  who,  without  proof 
of  actual  malice,  answers  inquiries  in  the  lionn 


writings  are  material  and  pertinent  to  the  Jlde  discharge  of  any  legal,  moral,  or  social 
question  involved."  And  that  counsel  are  not 
answerable  for  tiieir  words  spoken  during  the 
counu  of  a  trial,  although  they  \voul,l  be  ac- 
tionable elsewhere,  if  they  are  a;)plicable  and 
pertinent  t(^  t!;c  suljjcct  of  inquiry:  Hoar  v. 
Wood,  3  Met.  ID.];  //astings  v.  Liis/:,  22  Wend. 
410;  Moirer  v.  H'at^nn,  U  Vt.  536;  Ping  v. 
\V fleeter,  7  C  iw.  725;  Gilbert  v.  People,  1 
Dcnio,  41;  L^'sfer  v.  Thurmond,  51  Ga.  118. 
Yet  if  counsel  "wantonly  dejart  from  the  evi- 
dence and  point  in  issue,  with  an  intent  to 
injure  the  eharaeter  of  the  adversary,  wii^hont 
propriety  or  probable  ground,"  he  will  be  re- 
eponsible:  Grni/  v.  Pentiand,  2  Scrg.  &  R.  23; 
Gilbert  v.  /'co/.l'',  supra.  And  consult  Weeks 
on  Attorneys,  sec.  1 10;  14  Alb.  L.  .1.  433. 

A  party  i'i  not  oliargeable  for  v.hat  be  states 
in  his  pleadiuL's,  if  material  and  .stated  without 
malice:  L'unrn  /  v.  Christ//,  30  Ohio  St.  11.'); 
Jlill  v.  Mi/'s,  9  N.  II.  14;  Kidiler  v.  Parlhnrst, 
3  Allen.  30;5;  Wntson  v.  Moore,  2  Cush.  133; 
Marsh  V.  Elhirorth,  50  N.  Y.  311. 

Ertent  of  th's  privilege. — This  privilege  ex- 
tends not  merely  to  regular  courts  of  justice, 
but  to  all  investigations  before  magistr.ates, 
referees,   municipal   bodies,  and   ecclesiastical 

Civ.  Code— 2  17 


duty:  Long  v.  Pe'ers.  47  Iowa,  239;  Sund^rUn 
v.  Brad.-itreet,  40  N.  Y.  ISS;  Slate  v.  Lousda'e, 
48  Wis.  348.  For  a  collection  of  decisions 
bearing  on  the  liabi.ities  of  mercantile  agen- 
cies for  the  reports  they  give,  see  U  liar.on'3 
note  in  18  Fed.  Keo.  216.  Consult  il'Hsoit 
V.  Filcli,  41  Cal.  3:1 1,  where  tiie  defendants 
claimed  unavailing'}^  that  the  piib'.icaliou  ';on- 
cerning  a  director  of  a  mining  corporation  w-aa 
privileged,  for  the  reason  that  it  was  about  mat- 
ters of  puljlic  interest. 

See  a  very  clear  discussion  of  this  bi-anch  of 
the  subject  in  Odgers  on  Libel  and  Slander,  *  K'6 
et  S' f]. 

Subd.  4.  Rsports  of  ofHsinl  proceed- 
inga. — Impartial  and  aceurate  reports  of  judi- 
cial pvoceedin'TS  are  privileged:  McBre  v.  Fid. 
ton,  47  Md.  403;  Sfo-ei/  v.  Wallace,  03  111.  51; 
dazette  Co.  v.  Tnnherlakc,  10  Ohio  St.  5vS; 
Stanly  V.  Webb,  5  San.lf.  21 ;  Edsall  v.  Brodc^,  17 
Abl).  Pr.  227.  But  the  reporter  must  add  no 
comments  of  his  own,  for  to  these  no  priv- 
ileue  attaches:  Commonweidth  v.  Blandbig,  3 
Pick.  .304;  Thomas  v.  Cromwell,  7  Johns.  2G4; 
see  Townshend  on  Slander  and  Libel,  sees.  229 
et  seq. 


■§§  48-55 


PERSONAL  RELATIONS. 


Piv.  I,  Paet  m. 


48.  Malice  not  inferred. 

Sec.  48.    In  the  cases  provided  for  in  subdivisions  three  and  four  of  the  pre- 
ceding section,  malice  is  not  inferred  from  the  communication  or  publication. 

49.  Proleclion  to  personal  relations. 

Sec  49.     The  rights  of  personal  relation  forbid: 

1.  The  abduction  of  a  husband  from  his  wife,  or  of  a  parent  from  his  child; 

2.  The  abduction  or  enticement  of  a  wife  from  her  husband,  or  a  child  from 
;  a  parent  or  from  a  guardian  entitled  to  its  custody,  or  of  a  servant  from  his 

master; 

3.  The  seduction  of  a  wife,  daughter,  orphan  sister,  or  servant; 

4.  Any  injury  to  a  servant  which  affects  his  ability  to  serve  his  master. 
Code  commissioners' note. — "3Bla.  Com.,     provision  in  subdivision  3  is  new,  as  to  tlie  sister 

fCooIcy 'sell.,  138-141.     Perhaps  the  provision  in     ami  daughter:    Dain  v.  H'yciojT,  7  N.  Y.  191. 


-Biibdi vision  1  is  new,  and  doubtless,  as  a  matter 
.-of  fact,  it  would  rarely  be  taken  advantage  of. 

Kevertheless,  the  injury  is  a  very  great  one,  and 
•  one,  unliappily,  not  entirely  unknown:  Bennett 

X.Smith,  21  Barb.  439;  Schcrp/ v. Srzadeczl'y.  4 
.E.  D.  Smith,  110;  see  People   v.  Olmstead,  27 

Barb.  9;  Lumley  v.  (7ye,  2  El.  &  Bl.  216.     The 


The  legal  fiction  by  which  the  action  of  seduc- 
tion has  long  been  sustained  has  always  been 
considered  too  narrow  for  the  purpose  of  jus- 
tice: Woodicard  v.  Wanhburn,  3  Denio,  369; 
Martinez  v.  Gerher,  3  Man.  &  Gr.  88." 

Action  for  seduction:    See  S3cs.  374,  375, 
Code  Civ.  Proc. 


50.   Bight  to  use  force. 

Sec.  50.  Any  necessary  force  may  be  used  to  protect  from  wrongful  injury 
the  person  or  property  of  one's  self,  or  of  a  wife,  husband,  child,  parent,  or  other 
relative,  or  member  of  one's  family,  or  of  a  ward,  servant,  master,  or  guest. 
[Amendment,  approved  March  30.  1874;  Amendments  1873-4, 184;  took  effect  July 
•1.  1874.] 


PART  m. 

PERSONAL  RELATIONS. 

'Title  I.  Marriage. , 55 

II.  Parent  and  Child 193 

III.  Guardian  and  Ward _ 236 

IV.  Master  and  Servant ^ 264 

TITLE  r. 

MARRIAGE, 

Chapter  T.     The  Contract  of  Marriage ,. . 55 

II.     Divorce 82 

III.     Husband  and  Wife . ......^ 155 

CHAPTER   I 
THE  CONTRACT  OF  MARRIAGE. 

Article  I.    Validity  of  Marriage ^ 

II     Authentication  of  Marriage 

III.    Judicial  Determination  of  Void  Marriages 


55 
68 
80 


ARTICLE  I. 
validity  of  marriage, 
55.    What  constitutes  marriage. 

Seo.  55.     Marriage  is  a  personal  relation  arising  out  of  a  civil  contract,  to 
which  the  consent  of  parties  capable  of  making  it  is  necessary.     Consent  alone 

18 


Title  I,  Chap.  I.] 


CONTRACT  OF  MAT.RIAGE. 


$55 


will  not  constitute  marriage;  it  must  be  followed  by  a  solemnization,  or  by  a 
mutual  assumption  of  marital  rights,  duties,  or  obligations. 

ring;  we  are  married."  She  received  the  ring 
as  a  wedding-ring.  Ho  then  eaid:  "Wo  are 
married  just  as  much  as  Charles  is  to  his  wife. 
1  will  live  with  you  and  take  care  of  you  all 
the  da}  s  of  my  life  as  my  w  ife."    She  assented 


Marriage,  -what  constitutes, — A  contract 
of  ii.arnagu  is  a  civil  coutiaet:  (Iniliam  v. 
Benixtl,  2  Cal.  503;  LaUr  v.  Baker,  13  Id. 
57;  J /y lies  v.  McDermolt.  7  Abb.  N.  C.  9S; 
Lis-M  V.  Biiself,  55  IJarb.  325.      This  theory 


ti>  nuiriiago  is  disapproved  of  by  able  writ-     to  this,  and  they  went  to  a  house  M'hcre  he  had 

previiiusly  cueagcd  board  for  "himself  ami 
wife,"  where  they  lived  together  as  man  and 
wife  for  about  five  v<-ei-ks,  he  treating  her  as 
his  wife,  and  addressing  and  speaking  of  her 
as  such:  it  was  held  that  this  was  a  vali.l  mar- 
riarje.     In  Jaclson  v.   Winne,  22  Am.  Dec.  503, 


ers:  1  Lishop  on  Mar.  &  Div.,  sees.  3  et 
seq. ;  Schouler  on  Husb.  &  W.,  sec.  12;  and 
other  atitliors  referred  to  in  these  works. 
By  these,  marriage  is  regarded  as  sometliing 
more  than  a  mere  contiact,  but  rather  as  a 
sta'us.     B.iuvier,  in  the  revised  and  enlarged 


edition  (  f  his  work,  defines  it  as  "a  contract  it  v.as  held  that  to  complete  a  marriage  nothiu 
made  in  due  form  of  law,  by  which  a  man  and  more  was  necessary  than  a  full,  free,  and 
woman  reciprocally  engage  to  live  with  each  mutual  consent  between  parties  not  otherwise 
othc;-  (luring  their  joint  lives,  and  to  discharge  incapable  of  entering  into  such  state, 
towards  each  otlicr  the  duties  imposed  by  A  contractof  marriage  made^'ert'f^fta  (/e;?rcB- 
law  (i:i  the  relation  of  husband  and  wife:"  g^^ji^/,  properly  attested,  is  as  valid  as  if  made  »t 
Bouv.  Law  Diet.,  tit.  Marriage.  Con.'^ent  is  failc  i'cc(e>-ioe:  Feidon  w  RenLi  Am.  Dei^.l-i^; 
the  foundation-stone  of  marriage;  without  it  Londonderry  v.  Chester,  9  Id.  CI.  And  an 
a  marriage  is  a  mere  nullity:  1  Bishop  on  Mar.  agreement  to  marry  j.e.r  verba  de  prawuti,  fol- 
&,  Div.,  sec.  207.  But  it  was  said  that  mar-  lowed  by  cohabitation  for  several  j'ears,  will  bo 
riage  was  not  constituted  by  mere  consent  deemed  a  valid  marria'^c,  though  not  solcm- 
of  parties;  but  that  the  consent  of  the  state,  nized  according  to  the  laws  of  the  place  where 
man.fested  by  solemnization  in  the  presence  of  the  contract  is  made:  Nexchury  v.  Bruvnw'.ch, 
one  of  the  aathorizeil  persons,  was  also  nects-  19  Id.  703.  A  valid  marriage,  to  all  intents 
eary  ia  Missouri,  in  Dyer  v.  Brannock,  2  Mo.  and  jjurposes,  is  established  by  proof  of  an 
App.  432.  No  religious  form  or  ceremony  actual  contract,  ;)cr  rer6a  (Ze /jrce-spji^e,  between 
•wiiatevcr  is  essential  to  its  validity  in  New  persons  ca[)able  of  contracting,  to  take  each 
Yoih:  Bi~:selly.  /;j.sse/^  53  Barb.  825.  And  an  other  for  husband  and  wife,  especially  where 
agreement  made  in  Missouii  in  1S19  or  1830,  the  contract  is  followed  by  cohabitation;  yet  a 
that  they  wim'.d  live  together  as  husband  and  contract  7)c*-  i-erha  de  'praaentl  constitutes  mar- 
wife,  ii  a  valid  marriage  without  any  solemniza-  riage  only  wlien  the  parties  intend  that  it  sliall 
tion:  y.'j/'r  v. /jrannoc/.-,  CG  Mo.  391.  The  same  do  so  without  any  subsequent  ceremony.  A 
is  true  ill  California;  and  where  parties  arc  r.ble  proposition  to  cohabit  as  man  and  wife,  with 
to  co;iti-act,  an  open  avowal  of  the  intention,  and  an  assurance  of  future  marriage,  would  be  a 
an  asaumpLion  of  the  relative  duties  which  it  nullity:  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  235. 
ii'.ip  jces,  r.rc!  S-iliicient  to  ren  ler  n  valid  and  If  a  resident  of  Is'ew  York  contracts  Miarriage, 
binding:  Graham  v.  Z>V.,«f.7,  2  Cal.  503.  But  per  rerbi  de  prwttent.!,  in  a  foreign  country, 
t!;e  livi.:g  together  as  man  and  wife  is  not  a  mar-  with  another  competent  person,  with  a  view  to 
riage,  nor  is  an  agreement  so  to  live  a  contract  future  residence  in  New  York,  the  jiresumption 
of  mar;-ia;;c;  and  where  the  plaintiff  averred  in  is  in  favor  of  its  validity:  J/i/nes  v.  McDfirmott, 
her  complaint,  in  a  suit  brought  for  her  dis-  7  Abb.  N.  C.  OS.  A  marriage  is  also  sulncipiitly 
tributive  thare  of  the  estate  <"f  an  alleged  de-  establis'ied  if  there  is  evulence  of  a  marriage 
ceased  hr.sband,  that  the  deceased  made  pro-  in  the  present,  and  also  a  contract  per  verba  de 
posali  of  marriage  to  her,  v.liich  she  accepted,  prcexevli  cum  copnia:  Estate  of  Mc( 'ausUind,  52 
end  cimsented  to  live  with  him  as  his  true  and  Cal.  SCS.  "According  to  thclanguage  usual'y 
lawful  wife,  and  that  in  accordance  with  his  enndoycd  in  the  books,  if  parties  are  engageil  to 
wishes  she  henceforth  lived  and  cohabited  be  married,  and  then,  such  engagement  remain- 
with  l.i.n  as  his  wife,  always  conducting  her-  ing  unrevoked,  have  carnal  intercourse,  the 
Bclf  as  a  true,  faithful,  anil  afTcctionate  wife  engagement  and  copida,  connected  together, 
nhould  i!o,  it  v.as  held  that  these  were  insulfi-  auiomit  in  law  to  a  present  consent,  constituting 
cient  averments  of  tlie  e.Kistcnce  of  a  marriage,  what  is  termed  marriage  per  vrba  de/ittiiro  cum 
and  that  the  facts  averred  were  only  prima  copida.  The  r -ason  is,  that  the  copi('ai3  pre- 
J'arie  evidence  of  marriage:  Letters  v.  Cady,  10  sumcd  to  have  been  allowed  on  the  faith  of  the 
Id.  533.  And  where  a  man  and  woman  co-  maniago  promise,  and  that  so  the  parties  at 
habit  together,  and  he  promises  to  marry  her,  the  time  <if  tlie  copula  accepted  of  each  other 
and  a  ehi.d  is  born  to  them,  but  she  afterwards  as  husliand  and  v.-i.e:"  1  Bishop  on  Mar.  &  Div., 
lea\e-j  him,  because  he  does  not  permit  the  sec.  253.  A  betroth:;!  followed  by  copulation 
marriage  ceremony  to  be  performed,  and  lives  docs  not  make  the  common-law  marriage  per 
•with  another  man,  the  f  .cts  do  not  constitute  verba  de  pr(e  entt  when  the  parties  looked  for- 
a  marriage:  Entite  of  Berersoii,  47  Id.  G21.    In  ward  toafonnal  ccrcniony,  and  did  not  agree  to 

become  husband  and  wife  without  it:  /Vi-  v. 
Perk.  12  B.  I.  4S5.  Coliabitation  following  a 
marriage  jiromisc  is  prima  facie  evidence,  but 
not  conclusive,  of  ctnscnt  between  tiie  parties 
to  become  husband  and  wifet/i'  prce.o'nli :  Id.  A 
contract  «jf  marriage  ]>er  verba  de  fuluro  is  not 
evidence  of  a  valicl  marriage.  Nor  arc  the  re- 
lations of  the  parties  changed  by  the  fact  that 


Bixxell  V.  Binsell,  cited  aiUr,  a  man  and  woman 
were  cngnged  to  be  married,  and  he  stated  to 
her  that  he  did  not  believe  in  marriage  cere- 
monies, and  wished  her  to  waive  the  ceremony, 
Baying  that  a  marriage  without  it  would  be 
ppifectly  valid.  Slie  finally  consented  to 
waive  any  ceremony,  and  ii.x(d  a  day  for  the 
marriage.  On  that  day,  while  they  were  rid- 
ing together  in  a  caniage,  ho  placed  a  ring  cohabitation  followed  the  promise,  they  neither 
upon  her  linger,  saying:  "This  is  your  wedding-     accepiiug  one  another  as  husband  and  wife,  nor 

19 


li§  48-55 


PERSONAL  RELATIONS. 


[Div.  I,  Part  HX 


48.  Malice  not  inferred. 

Sec.  48.    In  the  cases  provided  for  in  subdivisions  three  and  four  of  the  pre- 
ceding section,  malice  is  not  inferred  from  the  communication  or  publication. 

49.  Prnleclion  to  personal  rdallons. 

Sec.  49.     The  rights  of  personal  relation  forbid: 

1.  The  abduction  of  a  husband  from  his  wife,  or  of  a  parent  from  his  child; 

2.  The  abduction  or  enticement  of  a  wife  from  her  husband,  or  a  child  from 
:  a  i)arent  or  from  a  guardian  entitled  to  its  custody,  or  of  a  servant  from  his 

master; 

3.  The  seduction  of  a  wife,  daughter,  orphan  sister,  or  servant; 

4.  Any  injury  to  a  servant  which  aflfects  his  ability  to  serve  his  master. 
Code  commissioners'  note. — "3  Bla.  Com.,     provision  in  subdivision  .3  is  new,  as  totlie  sister 


(■Coolcy'aoil.,  138-141.  Porliapstlio  provision  in 
-subdivision  1  is  new,  and  doubtless,  as  a  matter 
.-of  fiiet,  it  would  rarely  be  taken  advantage  of. 

Nevertlicloss,  the  injury  is  a  very  great  one,  and 
•  one,  unhappily,  not  entirely  unknown:  Bevnctt 

\.  Sniit/i,  21  Barb.  4.>9;  Schrrp/ v.Srzaderzhj.  4 
.E.  D.  Smitli,  110;  see  People   v.  OlmMead,  27 

Barb.  9;  Lumley  v.  ihje^  2  El.  &  Bl.  216.     The 


and  daugliter:  Dain  v.  IVijrkof,  7  N.  Y.  19L 
The  le^'al  fiction  by  which  the  action  of  seduc- 
tion has  long  been  sustained  has  always  been 
considered  too  narrow  for  the  purpose  of  jus- 
tice: Woodward  v.  IVaxhbum,  3  Denio,  369; 
Miirtintz  v.  Gerber,  3  Man.  &  Gr.  88." 

Action  for  seduction:    See  sacs.  374,  375, 
Code  Civ.  Proc. 


50.   Right  to  use  force. 

Sec.  50.  Any  necessary  force  may  be  used  to  protect  from  wrongful  injury 
the  person  or  property  of  one's  self,  or  of  a  wife,  husband,  child,  parent,  or  other 
relative,  or  member  of  one's  family,  or  of  a  ward,  servant,  master,  or  guest. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4, 184;  took  effect  July 
1.  1874.] 


I 


PART  ru. 

PERSONAL  RELATIONS. 

"TrrLE  I.     Maeriage  , *. 55 

II.     Parent  and  Child 193 

III.  Guardian  and  Ward ^ 236 

IV.  Masteh  and  Sehvaxt 264 

TITLE  I. 

MARRIAGE, 

•Chapter  T.     The  Contract  of  Marriage ,. . 65 

II.     Divorce 82 

III.     Husband  and  Wife . ...  ..^ 155 

CHAPTER   I. 

THE  CONTRACT  OF  MARRIAGE. 

Article  L    Validity  op  Marri aoe ^ 55 

II        ACTTHENTICATION   OF   MaRRIAOE 68 

III.    Judicial  DKTKKMiNAxiojf  of  Void  Marriages -...  .^ 80 

ARTICLE  I. 

VALIDITY   OF   MARRIAGE, 

55.    What  constitutes  marriage. 

Sec.  55.     Marriage  is  a  personal  relation  arising  out  of  a  civil  contract,  to 
which  the  consent  of  parties  capable  of  making  it  is  necessary.     Consent  alone 

18 


Title  I,  Cuap.  I.] 


CONTRACT  OF  MARRIAGE. 


§59 


V 


,  but  pliyyical  incapacity  may  also  arise  from  a 
^vant  of  a;;c,  and  a  consequent  lack  of  maturity: 
1  Eisiiop  oil  Mar.  &  Div.,  sec.  144;  see  sec.  82, 
_sutcl.  G. 

Fraud  in  obtedning  consent. — Fraud  in 
obtaii;in'^  the  consent  of  a  female  to  a  contract 
of  marri;i;;e  is  a  ground  for  its  nullification: 
Sloan  V.  Kane,  10  How.  Pr.  GG.  Bat  where 
the  marriage  Mas  procured  by  the  fraud  of  the 
wife  in  not  disclosing  her  pregnancy  at  the 
time  of  tlie  marriage,  tiicre  is  i;o  ground  of  ili- 
vorce:  Lo7ifj  v.  Long,  77  N.  C.  304;  S.  C,  24 
Am.  Rep.  449.  But  see  Baker  v.  Baker,  17 
Cal.  87,  and  the  cases  in  the  r(  porter's  note  to 
Siate-^  V.  Slatcg,  37  N.  J.  Eq.  195.  And  a 
divorce  cr.nnot  be  obtained  by  the  husband's 
fL-did  in  inducing  tlie  marriage  l)y  false  repre- 
ren'ations  r.s  to  his  character  ai:d  propertj': 
KkLi  V.  \Volf.s(jhH,  1  Abb.  N.  C.  131;  and  con- 
cealment from  her  husbr.nd  by  the  \\\ic  of  her 
II!. chaste  character  previous  tot'.ie  marriage,  or 
fa!^e  reiircccntatious  made  by  her  ujion  that 
Eubject  previous  to  the  m.arriage,  to  induce  him 
to  marry  h.er,  are  not  such  a  fraud  as  will  sup- 
port a  jud'mcnt  declaring  the  marriage  \oid: 
tarut-yy.  Vamen,  52  Wis.  120;  S.  C,  33  Am. 
Rep.  72().  "The  fiaud  which  wiil  avoid  a 
marriage  must  go  to  the  csser:ee  of  the  contract. 
Caveat  (mptor,  the  rule  of  trade,  seems  to 
^PP'3''  *  *  *  If  the  fraud  is  not  that  tf  a 
party,  bat  of  third  jiersons,  v>ithout  his  knowl- 
edge, t'.e  marriage  is  not  inval.d.  General'}', 
a  third  person  cannot  interfere  to  avoid  a 
marviage  for  force  cr  fraud.  Ratification  of  a 
forcible  o."  fraudulent  marriage  by  the  injured 
^■- party  wi  1  make  it  valid,  as  by  connection  arter 
removal  of  the  restraint  or  knowledi^e  of  the 


fraud:"  Browne  on  Dom.  Rel.  9.  See,  as  to 
illustrations  of  fraud  in  obtaining  marriage, 
JilcKinney  v.  Clark,  2  Swan,  321;  Bar)ies°v. 
Wyethf,  28  Vt.  41. 

As  to  penalty  for  false  personification  in  mar- 
ital relations,  see  Pen.  Code,  sec.  528;  see  also 
sec.  82,  pos',  and  note. 

Marriage  obtained  by  duress "Where 

a  formal  consent  is  brought  al)out  by  force, 
menace,  or  duress — a  yielding  of  the  lip.?,  not 
of  the  mind — it  is  of  no  legal  effect:"  1  Bishop 
on  Mar.  &  Div.,  sec.  210.  'iThe  general  rule 
is  that  the  force  must  be  such  as  would  natu- 
rally seive  to  overcome  the  will.  The  ques- 
tion of  the  amount  of  force  depends  upon 
circumstances: "  Browne  on  Dom.  Rel.  7. 
Sclioulcr  and  Kent  lay  down  the  rule  that  sncii 
a  marriage  is  void  ab  initio:  2  Kent's  Com.  7u; 
Scliouler  on  Dom.  Rel.  35;  but  this  rule  has  been 
denied,  and  it  has  been  held  that  sucli  a  mar- 
riage can  only  be  avoided  by  the  person  de- 
frauded in  his  life-time:  Browne  on  Dom. 
Rel.  7.  In  Willard  v.  Willard,  G  Baxt.  297, 
it  was  Iield  a  marriage,  consent  to  whicli  was 
compelled  liy  tlie  duress  of  cither  party,  was 
voit'.able;  but  it  has  been  held  tliat  a  man  ia:,-e 
obtained  by  force  or  fraud  was  void:  RohcriHO)} 
V.  Vole,  12  Tex.  35G;  Bcynolds  v.  Beynol(h,  3 
Alien,  C05;  Kcyx  v.  AV?/.s-,  22  K.  II.  55.);  but 
that  a  man's  consent  was  tlie  result  of  duress 
wiil  not  be  concluded  from  the  fact  that  he  was 
at  the  time  in  the  custody  of  the  conslable, 
under  proceedings  instituted  against  him  as  the 
father  of  a  bastard  child:  Jack.->07i  v.  IVinne,  22 
Am.  Dec.  5G3. 

NulliTi^^ng  marriage:  See  sec.  82,  post,  and 
note. 


£9.    Incovipetency  o/joarlies  to. 

Sec.  59.  ]\[arriages  between  parents  and  children,  ancestors  and  descendants 
of  every  degree,  and  between  brothers  and  sisters  of  the  half  as  well  as  the  whole 
blood,  and  between  uncles  and  nieces  or  aunts  and  nephews,  are  incestuous,  and 
void  from  the  beginning,  whether  the  relationship  is  legitimate  or  illegitimate. 


Inoestuous  marriages. — "Law  forbids  the 
marriage  of  near  relations.  Such  maniages 
a:'e  not  only  forbidden  by  divine  law,  but 
phyi;iological  experience  shows  that  the  issue 
of  such  C;.nnecticn  is  nearly  always  degenerate, 
frequently  monstrous:"  Browne  on  Dom.  Rel. 
1.  In  I5C3  ArchI  ishop  Parker  publislied  a 
table  of  ]woliibitcd  degree.'',  commonly  known 
as  Archbishop  Parker's  Table  of  Degrees,  which 
ever  since  has  been  in  Fngland  the  basis  of  all 
judicial  opinion  on  the  subject:  1  Bishop  on 
Mar.  &  Div.,  see.  31S,  and  note  giving  tlie  table 
of  dorrvees;  see  also  sees.  370  et  scq.     Ujion  a 


Laws,  sec.  146,  prohibiting  marriages  between 
"parties  who  are  nearer  of  kin  than  second 
cousins,  computing  by  the  rules  of  the  civil 
law,  wlietiier  by  the  half  or  whole  blood."  in- 
cludes a  woman's  marriage  with  her  half- 
brother:  Territory  v.  Corlxtt,  3  Mont.  T.  .SO. 
A  marrying  a  brotlier's  widow  is  an  oQcnie 
under  1  Va.  Rev.  Code,  c.  ICG,  399:  Comn:Gn- 
urallhv.  Ferryman,  2  Leigh,  717.  A  marria!:;o 
between  an  uncle  and  a  niece  is  not,  under  t!ie 
laws  of  South  Carolina,  void:  Boivera  v.  Boirera, 
10  Pdch.  Fq.  551;  and  under  a  statute  allov.ii^g 
marriages  ' '  not  prohibited  by  the  Laws  of  God, " 


trial  on  an  indictment  for  an  attempt  to  con-  a  marriage  by  a  man  with  the  dauglitcr  of  liis 

tract  an  incestuous  marriage,  something  more  sister  is  voidable  during  the  life  of  tlie  parties, 

must  lie  shown  than  mere  intention  to  contract  but  not  void,  and  cannot  be  called  in  question 

Euch    marriage.     Preparation  for  the  attempt  after  tiie  deatli  of  either:  Bonham  \.  Ikahjey, 

indicate   the  intention,  but  between  this  and  2  Gilm.  G22;  S^erofso?!  v.  Gray,  17  B.  Mon.'l93; 

the  attempt  itself  there  is  a  wide  difTerence.  Parkcr''-'i  A]<peal,  44  Pa.  St.  309.     A  marriage 

The  attempt  contemplated  by  the  statute  must  void   bccaur.e   contracted   within   the  degrees 

be  manifested  by  acts  which  would  end  in  the  prohibited  by  statute   can  bo  confinned    l)y  a 

consummation  of  the  particular  ofTcnse  but  for  subsequent  act:    Moore  v.   Whit'iker,  2  ILur. 


the  interv>.ntion  of  circumstances  independent 
of  the  will  of  the  ])arty:  People  v.  Murray,  14 
Cal.  159.  In  incest,  one  party  having  knowl- 
edge and  t':e  other  being  ignorant  of  the  rela- 
tionship, the  former  may  be  convicted  and  the 
latter  acquitted:  State  v.  Ellis,  74  Mo.  385;  S. 
C.  41  Am.  Rep.  321.     The  Montana  Ter.  Crim. 


(Del.)  50.  A  marriage  valid  where  it  is  con- 
tracted is  valid  in  Massachusetts,  if  not  incest- 
uous by  the  law  of  nature  or  not  made  void: 
Mass.  R.  S.,  c.  75,  see.  G;  although  it  would  be 
void  by  the  law  there,  if  contracted  there:  Sut' 
ton  v,  Warren,  10  Met.  451. 


21 


§§  GO,  01 


PERSONAL  RELATIONS. 


[Div.  I,  Part  in. 


60.   Of  whites  and  negroes  or  mulatloes,  void. 

Sec,  CO.  All  marriages  of  white  persons  with  negroes  or  mulattoes  are  illegal 
and  void. 


Marriages  between  whites  and  negroes. 

In  Vfi  y  iiKiny  of  the  atatca  tliere  ;ire  statutory 
l>nivisioiis  I'orhiildiii!;  the  inairiagcs  of  white 
peraoiis  and  negroes,  anil  pronouncing  such 
marriages  void;  Sitccesxioii  of  Minvielle,  15  La. 
Ann.  'Ml;  SUUc  v.  llooix't;  5  Ired.  L.  201;  State 
V.  llalrUon,  03  N.  C.  451;  State,  v.  lleinhardt. 
Id.  517;  Kiitncy  v.  Contmonweallh,  .30  Giatt. 
8.aS;  Slate  v.  iJaxter,  7  Baxt.  9;  Francota  v. 
Slate,  9  Tex.  App.  144;  State  v.  Gibson,  30  Ind. 
3;i9;  S.  C,  10  Am.  Rep.  42.  Statutes  prohib- 
iting eucli  marriage  arc  not  unconstitutional: 
Slate  V.  Gibson,  30  Ind.  3S9;  S.  C,  10  Am.  Rep. 
42;  Green  v.  Slate,  58  Ala.  190;  as  each  state 
Las  an  exclusive  right  to  declare  how  and 
Avlioni  its  citizens  may  marry,  and  the  legal 
consiqucuces  of  the  marriage  contract:  Fran- 
cois V.  State,  9  Tex,  App.  144;  although  in  Ala- 
Lama  it  was  held  that  a  statute  making  the 
intermarriage  of  whites  and  blacks  a  criminal 
offense  was  unconstitutional:  Burnn  v.  State, 
48  Ala.  193;  S.  C,  17  Am,  Rep.  34;  but  see 
Place  V.  Alabama,  100  U.  S.  583,  A  negro 
and  a  white  person  living  together  in  Tennessee 
as  man  and  wife  are  liable  to  indictment,  al- 
though married  elsewhere:  State  v.  Bell,  7 
Baxt.  9.  If  a  negro  and  a  white  should  leave 
the  f-tate  to  marry,  in  evasion  of  its  laws,  and 
intending  to  leturn  to  the  state,  the  marriage 
is  not  v;-.lid  iu  that  state:  State  v.  Kennedj,  70 
N.  C.  -251;  S.  C,  22  Am,  Rep.  083;  Kinney  v, 
Commoiiireallh,  30  Gratt.  853;  but  the  marriage 
would  bo  valid  if  they  did  not  intend  to  return, 
although  afterwards  they  actually  did  so:  State 
V.  Ro  s,  70  N,  C.  242;  S.  C,  22  Am.  Rep,  078; 
but  in  Louisiana  it  was  held  that  no  matter 
what  validity  could  attacli  to  a  marriage,  or  a 
marriage  contract,  between  a  free  white  person 
and  one  of  color  in  another  slate,  no  effect 
could  be  given  to  either  iu  that  state:  Dupre  v, 
BoularJ,  10  La,  Ann,  411.  But  a  negro,  mu- 
latto, or  mestee  is  not  liable  to  indictment 
by  the  provisions  of  Tennessee  laws,  1822,  c, 
19,  for  marrying  a  white  woman,  or  living  with 
herasiier husband:  Slatev.  B r ad i/,d Humph. 74, 


Under  a  Massachusetts  statute,  which  pro- 
hibits a  marriage  between  a  white  person  nnd 
a  mulatto,  it  was  held  that  a  mulatto  was  a 
person  begotten  between  a  black  and  a  white, 
and  that  the  issue  of  such  a  person  and  a  white 
was  not  a  mulatto:  Medway  v.  Katirh,  7  M'xss. 
88;  .ind  under  the  statute  of  that  state,  1780, 
prohibiting  a  marriage  between  a  white  persoa 
with  a  negro,  Indian,  or  nmlatto,  a  person  hav- 
ing a  sixteenth  part  Indian  blood  is  a  white 
person,  and  cannot  marry  a  mulatto:  Bailey  v. 
Fi»ke,  34  Me.  77.  In  the  North  Carolina  act 
the  "  persons  of  color  "  include  all  who  are  de- 
scended from  negro  ancestors  to  the  fourth  gen- 
eration inclusive,  although  ono  ancestor  of  each 
generation  may  have  been  a  white  person:  StalA 
v.  Waters,  3  Ired.  L,  455;  but  see  State  v.  Md- 
ton.  Bush,  L.  49, 

A  marriage  between  a  free  white  woman  and 
her  negro  slave  will  not  be  presumed  from  co- 
habitation: Armstrong  v.  JJodi/es,  2  B,  Mon, 
09.  Where  an  action  is  brought  to  displace  a 
natural  tutrix  for  neglecting  to  comply  with 
certain  formalities,  she  cannot  plead  the  nul- 
lity of  her  marriage  with  a  husband  of  color. 
A  direct  action  to  impecch  the  marriage  is 
necessary;  and  that  being  impossiole,  on  ac- 
count of  the  death  of  the  husband,  with  whom 
she  had  cohabited  for  many  years,  and  by 
whom  she  had  issue  living,  she  cannot  set  up 
the  nullity  as  a  defense  to  such  proceeding: 
Boyer  v,  Tassin,  9  La.  Ann.  491,  But  ia  S ac- 
cession of  Minvielle,  15  Id.  342,  that  a  marriage 
celebrated  between  a  free  w^hite  person  and 
a  free  person  of  color,  in  violation  of  article 
95,  Louisiana  civil  code,  is  an  absolute  nul- 
lity; but  no  suit  was  needed  to  declare  the 
nullity  of  such  a  union;  that  either  party 
might  disregard  it,  and  neither  could  pre- 
tend to  derive  from  it  any  of  the  consequences 
of  a  lawful  marriage;  that  it  might  be  at- 
tacked collaterally  and  in  every  form  of  action 
in  which  it  was  set  up  against  either  of  tho 
parties. 


61.   Second  marriage,  when  illegal  and  void. 

Sec,  G1.  A  subsequent  marriage  contracted  by  any  person  during  the  life  of 
a  former  husband  or  wife  of  such  person,  with  any  person  other  than  such  for- 
mer husband  or  wife,  is  illegal  and  void  from  the  beginning,  unless: 

1.  The  former  marriage  has  been  annulled  or  dissolved; 

2.  Unless  such  former  husband  or  wife  was  absent,  and  not  known  to  such 
person  to  be  living  for  the  space  of  five  successive  years  immediately  preceding 
Buch  subsequent  marriage,  or  was  generally  reputed  and  was  believed  by  such 
person  to  be  dead  at  the  time  such  subsequent  marriage  was  contracted;  iu 
either  of  which  cases  the  subsequent  marriage  is  valid  until  its  nullity  ia 
adjudged  by  a  competent  tribunal.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  185;  took  effect  July  1,  1874.] 

Bigamy:  Sec  Pen,  Code,  sees.  231-283, 

In  trial  for  bigamy,  the  law  will  not  pre- 
Butne  the  continued  existence  of  a  former  wife 
in  order  to  convict:  People  v.  Feilen,  58  Cal. 
218. 

Proof  of  marriage:  See  note  to  sec.  57. 


Subi  1.  WTiere  former  husband  or  wife 

i3  llvia^. — A  marriage  by  one  having  a  former 
hu^iban  I  or  wife  l.ving  is  void:  Janes  v,  Jane<>, 
5  Blackf.  141;  ^rartin  v.  Martin,  22  Ala.  80; 
Surnmcrliii  v,  L'oin'jston,  15  La,  Ann.  519; 
Harrison  v,  Lincoln,  43  Me.  205;  Trenton,  v. 


22 


Title  I,  Chap.  I.] 


CONTRACT  OF  JStARRtAGE. 


§6i 


Beed,  4  Johns.    52;  Appleion  v.    Warner,  51 
Barb.   270;  Kenlcy  v.    Ken/eij,   2  Yeates,  207; 
Heffner  v.  J/efiK-'r,  23  Pa.  St.   104;  Sellars  v. 
Davis,    4  Yerg.    TiOS;  Drttmmond  v.   Irish,  52 
Iowa,  41.     And  if  a  legal  divorce  from  a  first 
marriage  is  not  established,  a  second  marriage 
cannot  be  suUiciently  establislied  to  authorize 
a  divorce  from  a  second  marriage  and  an  allow- 
ance of  alimony :  Collinft  V.  Collin>t,  SON.  Y.  1. 
But  where  a  decrse  of  divorce  in  A.'s  favor  was 
entered  at  two  o'clock  p.  M.  of  tlie  day  upon 
which  at  eleven  o'clock  a.  m.,  in  good  faith, 
supposing  the  decree  to  have  been  entcrcil,  ho 
married  again,  the  marriage  is  valid:  Merriam 
V.  Wolcott,  Gl  IIow.  Pr.  377.    In  JIassachusetta 
marriages  of   persons  against  whom    divorces 
have  beuu  granted  on  the  ground  of  adultery 
are  invalid  unless  leav<;  of  the  court  has  been 
obtained:     West    Cambridrjc    v.    Lexiiifjto7i,    1 
Pick.  5C5;  S.  C,   11  Am.  Dec.  231;    While  v. 
While,  105  Mass.  325;  S.  C,  7  Am.  Hep.  526; 
Commomcralt/i  v.  Lane,  113  Muss.  45S;  S.  C, 
18  Am.  Rep.  509;  Pntvian  v.  Pulman.  18  Pick. 
43.3.     In  North  Carolina  the  statute  expressly 
makes  it  a  felony  for  the  offending  party  to 
marry  after  a  divorce,  "his  or  her  former  wife 
or  husband  being  alive,"  and  such  a  marriage  is 
null  and  void:  Cal'oway  v.  Bryan,  6  Jones  L. 
569.     In  New   York,   also,   there  is  a  statute 
prohibiting  the  second  marriage  of  a  person 
divorced  on  the  ground  of  his  adultery:    Van 
VoorhisY.  Briiitiiull,  SG  N.  Y.  18;  S.  C,  40  Am. 
Rep.  505;  Smith  v.   Woodwortli,  44  Barb.   198. 
In   other   states   as    well,    statutes  have  been 
passed  lestricting  or  regulating  the  marriage  of 
persons    against    whom    divorces    have    been 
granted.     Suc'.i  laws  of  course  have  no  extra- 
territorial effect;  and 'where  a  husband  having 
a  legal  settlement  in  the  state  of  Massachusetts, 
after  a  divorce  for  adultery,  removed  to  another 
state  and  married,  his  former  wife  being  still 
alive,  as  such  marriage  was  permitted  in  that 
state,   the   children   are   legitimate   and    have 
their  father's  settlement:     West   Camliridije  v. 
Lexinrjtou,  11  Am.  Dec.  231.     There  is  a  differ- 
ence in  the  states  as  to  what  effect  a  removal 
to  and  marriage  in  another  state,  for  the  pur- 
pose of  evading  the  laws  cf  the  first  state,  would 
Lave   on   a   return    to   the   first  state.     From 
Commoinceallh  v.  Lane,   113  Mass.  458;  S.  C, 
18  Am.  Rep.  509,  it  appears  that  such  persons 
might    be   indictable   for  polygamy,    but  not 
without  proof  that  tlie  second  wife  was  a  resi- 
dent of  Massachusetts,  and  that  the  purpose  of 
the  removal  was  to  evade  the  laws  of  that  com- 
monwealth.    Formerly  such  was  not  the  law 
of  that  state:  Piitmaii  v.  Piitmaii,  8  Pick.  433. 
And  in  New  York  such  a  marriage  was  held 
valid,  it  being  valid  in  the  state  where  per- 
formed, as  the  act  prohibiting  the  second  njar- 
riage,  being  in  the  nature  of  a  penalty,  and  not 
in  express  terms  showing  the  legislative  intent 
to  renih'r  such  marriage  entered  into  in  anotiier 
state  void:    Van  Voorhis  v.  Brintnall,  86  N.  Y. 
18;  S.  C,  30  Am.  Rop.  505,  reversing  S.  C,  23 
Hun,  2()4;  but  contra:.  Thorp  v.  Thorp,  47  N. 
Y.  Super.  Ct.  80.     And  where  A.  was  divorced 
from   his   wife  in   Now  York,   on   account  of 
adultery,  and  went  to  New  Jersey,  where  he 
married  again,  anl   8ub3c([uently  returned    to 
New   York,    and   a   statute   in   force  in   Now 
Jersey  at  the  time  of  his  marriage  provided 
that  "all  marriages  when  either  of  the  j  artics 
shall  have  a  former  husband  and  wife  living  at 
the  time  of  the  marriage  shall  be  invalid,"  it 

23 


was  held  that  A.  had  no  wifcj  living  within  thd 
meaning  of  the  statute:  Moore  v.  JJeyeman,  27 
Hun,  68. 

The  maxim  of  the  law,  Ljnorantia  legnni 
nemineni  cxcusat,  applies  as  well  to  the  con- 
tract of  marriage  as  to  other  contracts.  Thus 
where,  by  the  general  statutes,  the  guilty  di- 
vorced party  is  prohibited  from  marrying  again 
without  the  leave  of  court,  and  he  mairies 
again  without  such  leave,  believing  he  has  a 
right  to  do  so,  t!ie  subsequent  marriage  is  in- 
valid. And  a  special  act  of  the  legislature  de- 
clarmg  the  two  persons  so  married  "  to  be  hus- 
band and  wife  to  uU  legal  intents  and  pur* 
poses"  is  unconstitutional:  White  v.  White ,  105 
Mass.  325;  S.  C,  7  Am.  Rep.  526.  And  where 
a  woman  having  obtained  a  separation  a  mensa 
et  thoro,  four  months  afterwards  goes  with  a 
co-resident  to  Mississippi,  and  n.airying  hiui 
there,  returnswith  him  here,  a  divorce  auiVirw/o 
mafriinoiiii  never  having  been  decreed,  slie  is 
onl}'  his  concubine,  and  not  entitled  to  tlie 
right  of  a  wife  in  a  last  will  and  testament,  al- 
though as  a  matter  of  fact  she  did  believe  her- 
self finally  divorced:  Cannena  v.  Blan-i/,  18 
La.  Ann.  245.  But  the  position  of  a  womau 
who  innocently  marries  a  man  whoso  wife  is 
living,  and  lives  with  him  for  a  long  time,  is 
favored  in  law,  and  a  divorce  was  pn  sume  1  ia 
her  favor  in  Carroll  v.  Carroll,  20  Tex.  731; 
see  2-1  La.  Ann.  298. 

Subd.   2.     Continued    absence    cf  hvOf 
band,  effect  of  on  subsequent  marrlag  • .— r 
At  the  common  law,  thiTo  was  a  presumptioij 
of  t!ie  death  of  a  person  who  was  absent  and 
unheanl  of  for  seven  years.     This  presnmptioii 
has  generally  been  put  in  a  statutory  form  iu 
the  several  state-,  with  the  time  more  or  leis 
modified;  and  it  has  been  applied  to  marriage? 
BO  as  to  make  such  as  were  not  contiactcd  tdl 
after  the  presumption  of  deatli   fi-om  absence 
arose  valid  until  set  aside  by  a  competent  tri-; 
bunal.     Instances   of    such   marriages    havinj/ 
been  held  valid  may  be  found  by  referring  t<> 
the  following  cases:  Luha)i/:s  v.  BniiLt,  34  Ga. 
407;  Strode  v.  Strode,  3  Bush,  227;    A'J>  v. 
Drew,    12    Allen,    107;    Yates   v.    J/o'istim,   3 
Tex.  433;  Dixon  v.  People,  18  Mich.  84;  Crop 
aey  v.  ilcKinr.ey,  10  Barb.  47;    White   v.  Louei 
1  Redf.  376;  Canada  v.  Conje,  6  llich.  Eq.  103. 
A  statute  declaring  that  a  second  marriage  con^ 
tracted  by  one  whose  liusband  or  wife  sh.ail 
have  absented  himself  or  herself  for  five  years, 
"  without  being  known  to  be  living, "shall  only 
be  void  if  judicially  so  declared,  requires  ordi- 
nary ])rocautions  and  inquiry  on  the  part  at 
one  so  marrying  as  to  wiiether  the  other  partj 
is  living.     Merc  ignorance  is  not  enough:  A'i/«- 
zrrj  V.  Kinzpy,  7  Daly,  4G0.     And  where  a  wifa 
abandoned  her  husband  on  account  of  his  iu* 
temperate  habits,  cruel  treatment,  and  absence 
from  iiomo,  and  during  lire   successive  yean 
resided  in  an  adjoining  county  with  a  second 
husbaiul,  and  it  did  not  appear   that  she  had 
knowledge  of  the  death  of  her  fir.'^t  husband, 
or  that  he  was  not  generally  well  known  to  b« 
living,  it  was  held  not  such  a  conti:uiing  ab- 
sence for  five  successive  years,  witiiin  t!ie  pro- 
visions of  New  York,  as  to  render  valid  th^ 
second  marria'C,  an<l  authorize  the  isrsning  o( 
letters  to  tiic  woman  as  the  widow  of  the  sec- 
ond   husban.I:     Wy  es  v.    Gibb%    2   Pcdf.    3S2. 
But  the  fact  tiiat  the  abandonment  was  on  tba 
jiart  of  the  wife  makes  no  difiereiice;  the  mei-© 
fact  of  absence,  where  it  docs  not  appear  that 


5§  G2,  0.1 


PEnSONAL  RELATIONS. 


[Div.  I,  Part  III, 


it  was  created  witli  a  view  to  .avoidinj^  the  stat- 
hte,  is  sutiicieut,  without  reference  to  the  mat- 


ter or  tiie  reason  or  occasion  of  it:   While  t. 
Lowe,  1  lledf.  370. 


62.   lideafie from  ma?'riage  contract. 

Sec.  62.  Neither  party  to  a  contract  to  marry  is  bound  by  a  promise  made  in 
ignorance  of  the  other's  want  of  personal  chastitj',  and  either  is  released  there- 
from b}'  unchaste  conduct  on  the  part  of  the  other,  unless  both  parties  partici- 
pate therein.  [Amendme^it,  approved  March  30, 1874;  Amendnienls  1873-4, 185; 
look  rffrcl  Juhj  1,  1874.] 

Want  of  chastity  releasing;  from  prom- 
ise cf  marriage. — If  any  man  has  b.-en  paying 
Ilia  n(Mi-c'Sscs  to  one  that  ho  supposes  a  modest 
peison,  i.iid  afterwards  discovers  lier  to  hj  loose 
and  iniuioiicst,  he  is  justified  on  bre.iLing  any 

tiromise  of  marriage  lie  may  have  made  to  her; 
lut  to  entitle  a  delcndant  to  a  verdict  on  that 
ground,   the  jr.ry  must  be  satisfied  that  tlie 


that  since  he  did  not  undertake  to  impeacli  her 
chastity,  or  even  her  general  reputation  for  so- 
briety, the  evidence  ofl'ercd  ws.3  inadmissible: 
Bnlloii  V.  McCauby,  33  Vy.nh.  413.  Unchaste 
conduct  Viiaj-  be  offered  in  mitigation,  althouah 
it  was  known  to  the  defonduiu  at  the  time  lie 
made  the  promise:  Deiisloiv  v.  Van  Horn,  16 
Iow;i,  47G;  and  wi:hout  any  limii;ation  as  to  t!ie 
plaintiff  was  a  loose  and  inmiodest  woman,  and     time  he  made  tlie  promise  to  her,  or  the  2)eriod 


that  he  broke  his  premise  0!i  that  account,  and 
tliat  he  did  not  know  her  character  at  the 
time  of  the  promise:  Es}iy  v.  Jones,  1  Ala. 
45-1;  Woodicard  v.  Bellaiity,  2  Root,  3r)4;  But- 
ler  V.  E-.ch(eman,  18  111.  44;  lldl  v.  E iton, 
28  lad.  4GS;  Dendoio  v.  Van   Horn,  16  Iowa, 


of  tlie  proposed  marriage:  Johnson  v.  (.'au'kbm, 
1  Am.  Dec.  102;  whether  it  occurred  I)efore  or 
after  the  breacli:  WUlard  v.  State,  17  Id.  490; 
altliough  in  Boynton  v.  Keio^irf,  3  Id.  122,  it 
was  held  the  defendant  could  not  give  evidence 
of   the    plaintiffs   general    bad    character    be- 


470;  Snowman  v.  Wordioell,  32  Me.  275;  Brrry    tween  the  time  of  the  promise  and  the  breach 


Baheman,  44  Me.  1G4;  Capthart  v.  Car 
tad'iiie,  4  Strobh.  L.  42;  Goodal  v.  Thunnan, 
1  Head,  209.  The  previous  bad  character 
«if  the  woman  may  be  shown  in  miti^'ation 
«»£  dama'.;es  for  the  breach  of  promise:  Bkt- 
iteit  V.  Simpldns,  24  111.  2G4;  Buth-r  v.  Eschle- 
tnnn,  IS  Id.  44;  Cole  v.  llolliday,  4  Mo.  App. 
94;  and  evidence  of  the  unchaste,  immoral,  or 
licentious  conduct  of  the  plaintiff  may  be  shown 
in  mitigation:  Jolnison  v.  Ccinlk'ms,  1  Am.  Dec. 
102;  JA/we  V.  Ndson,  15  Id.  384;  WUlard  v. 
Stone,  17  Id.  40G. 


in  mitigation.  To  support  an  answer  to  <a  com- 
plaint for  a  1)reac!i  of  promise  tliat  the  plaint- 
iff is  an  unchaste  woman,  etc.,  evi.lence  is  ad- 
missible that  slie  has  lived  with  a  woman  w!io 
was  at  the  time  keeping  a  bad  house:  Ihinter 
V.  Jlu'Jield,  GS  Ind.  41G;  lint  rumors  of  im- 
proper conduct  are  not  admissible:  WUlard  v. 
Stouc,  17  Am.  Dec.  490. 

Acta  of  fornication  between  the  parties  in  an 
action  for  a  breacli  of  promise,  committed  be- 
fore the  promise,  cannot  be  set  up  in  mitigation: 
Expy  V.  Jones,  1  Ala.  454;  such  evidence  is  in- 


But  ^^■llere  the  defendant  in  a  suit  brought  admissible  to  prove  a  promise  to  enhance  the 

by  a  female  for  breach  of  promise  of  marriage  damages,  or  for  any  other  purpose:  Fchjer  v. 

•flered  evidence  to  show  that  she  drank  to  ex-  Etzell,  lb  Ind.  417. 
iBcss,  and  sometimes  to  intoxication,  it  v^as  held 

63.   3Iarriages  contracted  without  the  state. 

Sec.  G3.  All  marriages  contracted  without  this  state,  which  would  be  valid 
by  the  laws  of  the  country  in  which  the  same  were  contracted,  are  valid  in  this 
state. 


The  validity  of  marriage  is  determined  by 
the  law  of  the  place  where  it  is  celebrated: 
Pearson  v.  Pearson,  51  Cal.  120;  PhilUps  v. 
Grerig,  10  Watts,  158;  State  v.  Patterson,  2 
Ired.  L.  340;  Roche  v.  Washington,  19  Ind.  53; 
CanjoUe  y.  Ferrie,  20  Barb.  177;  and  a  mai-- 
riage  valid  where  celebrated  is  valid  every- 
where: Mcdiray  v.  Needham,  10  Mass.  15*7: 
R.  C,  8  Am.  Dec.  131;  FornshUl  v.  Murray,  18 
Id.  344;  West  Cambrid<je  v.  Lexington,  11  Id. 
231;  Harding  v.  Alden,  23  Id.  549;  although 
it  was  held  in  Sneed  v.  Ewing,  22  Am.  Dec.  41, 
that  such  a  marriage  was  not  necessarily  valid 
everywhere  else.  The  lex  loci,  by  which  the 
«ondact  of  married  persons  is  to  be  regulated 
and  their  relative  duties  are  to  be  determined, 
and  by  which  the  relation  itself  is  to  be  in  ecr- 
taiu  cases  annulled,  must  be  always  referred, 
Mot  to  the  ])lace  where  the  contract  was  entere<l 
info,  but  where  it  subsists  for  the  time,  where 
the  parties  have  had  their  domicile,  and  have 
Leeu  protected  in  the  riglit?  resulting  from  the 
marriage  contract,  and  esjjecially  where  the 
|>arties  are,  or  have  been,  amenable  for  any 


violation  of  the  duties  incumbent  on  them  in 
that  relation:  Barber  v.  Boot,  10  Mass.  200; 
and  while  the  forms  and  ceremonies  of  mar- 
riage are  governed  by  the  laws  of  the  place 
where  the  marriage  is  celebrated,  the  essentials 
of  the  contract  depend  upon  an-l  are  governed 
by  the  laws  of  the  country  where  the  parties 
are  domicileil  at  the  time  of  the  marriage  and 
in  which  the  matrimoni;d  residence  is  con- 
templated: Kinney  v.  Cornmonv-eaUh,  30  Gratt. 
858.  Where  the  jiarties  went  to  another  state 
for  the  purpose  of  ev.ading  the  laws  of  their 
own  country,  which  prohibited  a  marriage  be- 
tween  them,  and  after  tlieir  marria^'e  returned 
to  their  own  state,  the  marriage  was  held  valid, 
in  Medway  v.  Xfcdham,  10  J.Ia^!S.  157;  S.  C, 
8  Am.  Dec.  131;  see  on  tliis  point  cases  cited  in 
note  to  subdivision  1  of  .section  01;  but  this  p'in- 
ciple  will  not  be  extended  to  legalize  incestuoua 
marriages  so  contracteil:  Id.  And  a  marriage 
contracted,  M'ithout  this  state,  which  is  valid 
by  the  law  of  the  place  whe'-e  contracted,  is 
valid  in  this  state,  if  tiie  parties  subsecjuontly 
remove  here,  even  though  the  marriage  would 


24 


69a  (new).  Certificate  of  Registry  of  iVIarriage.  All  per- 
sons about  to  be  joined  in  marriage  must  obtain  from  the 
county  clerlt  of  the  county  in  wiiich  the  marriage  is  to 
be  celebrated,  in  addition  to  the  license  therefor  pi'ovided 
for  in  section  sixty-nine  of  the  Civil  Code,  a  certilicate  of 
registry  as  provided  in  section  three  thousand  and  seventy- 
six  of  the  Political  Code  which  shall  contain  among  other 
matters  as  near  as  can  be  ascertained,  the  race,  color,  age, 
name  and  surname,  birthplace,  residence  of  the  parties  to 
be  married,  number  of  marriage  and  condition  of  each, 
whether  single,  widowed,  or  divorced,  the  occupation  of  the 
parties,  maiden  name  of  the  female,  if  previously  married, 
the  names  and  birthplaces  of  the  parents  of  eacli,  and  the 
riaiden  name  of  the  mother  of  each,  which  said  certificate 
of  registry  shall  be  filled  out  as  lierein  pi-ovided  in  the 
prestice  of  the  county  clerlt  issuing  the  marriage  license 
and  shall  then  be  presented  to  the  person  performing  the 
ceremony  and  shall  be  filed  by  him  with  the  county  recorder 
within  three  days  after  the  ceremony.  (In  effect  60  days 
from  and  after  April  26,  1909.     Stats.   1909,   Chap.   719.) 

Civ.    Code,    1909. 


Title  I,  Ciiap.  I.J  CONTJiACT  OF  MARRIAGE.  §§  C3-70 

have  l)cen  invalid   ny  the  laws  of  tliia  state  if  does  not  apply  if  the  lex  loci  he  repugnant  to 

contracted   Lerc:    Pcamon  v.  Pearnoii,  Ol    t'al.  the  iciigion,  morality,  or  religious  iiislilutioiis 

120;  and  sec,  on  tliis  point.   West  Canihridjc  v.  of   t!ie  country  wliercin   it  is  soc.giit  to  be  ap- 

LexiiKjlim,  1  Pick.  503;  S.  C,  11  Am.  Dcc.'illl.  pli'jd:    Triu-  v.  Ranmy,  -21   N.  11.  52. 
Lut  tiie  rule  t.iiat  tlie  validity  of  a  contract  of         Validity  of  foreigu  divoroes:  8ee  note  to 

marriage    depends   ou   the  Ltx  loci   contracCus  sec.  91. 

ARTICLE  II. 

AUrnENTlCATlON    OF    MAItRTAOE. 

63.   Marriage,  how  solemnized. 

Sec.  G8,  Marriage  must  be  licensed,  solemnized,  authenticated,  and  recorded 
as  provided  in  this  article;  but  non-compliance  with  its  provisions  does  not 
invalidate  any  lawful  marriage. 

CDnstriiction  of  sttitutes  concerning  sol-  statute  on  the  subject,  unless  the  statute  con- 

emn:'::aLioii,  gsnerally. — Bisliop,  in  liii  work  tains  express  words  of  mdiity.     Tiiis  rr.ie  ap- 

011  n:ai ria^'o  and  divoi'ce,  sec.  2S3,  considering  plies  not  only  ta  the  statute  as  a  whole,  but  to 

the  (|ueslion  as   to  the  effect  of  .statutes   pre-  the  sisveral   parts  of  it;  so   that  if  it  dcclnrea 

sciiliing  certain   forms  of  solemnization,  snys:  the  marriage  void   for  non-compliance  with  a 

"  If  u  e  renicnd)er  tliat  marriage  existed  ijei'ore  particular  provision,  it  is  good  notwithstanding 

statutes,  that  it   has  ever   been  a  thing   to  be  a  failure  to  comply  with  any  other  jirovision. 

favored    in   the  law,  t!iat  alao   it  is  of  natural  This  rule,  like  most  ot'icr  legal   rules  now  well 

light — we  shall  see  very  plainly  that  wliatever  settled,  lias  struggled  against  some  doubts  and 

directions   a   statute  may  give  concerning  its  uncertainties,  but  it  seems  never  (uidess  we 

Bolemnizatioii,  it  should   be  iield   good,  though  exee|)t  a  Massachusetts  decision,  to  which  we 

not   solemnized    according    to   its    directions,  shall  presently  refer)   [Mllfonl  v.  Worrexter,  7 

Consequi'ntly,  the  doctrine   has  become  cslab-  Mass.  4SJ  to  have  been  discarded  in  actual  ad- 

lishcd  that  a  marriage  good  at  the  common  law  judication." 

ia  good,  notwithstanding  the  existence  of  any  See  the  note  to  sec.  55. 

69.  Marriacjt'.  license. 

Sec.  G9.  All  persons  about  to  be  joined  in  main-iage  must  first  obtain  a  license 
therefor  from  the  county  clerk  of  the  county  in  which  the  marriage  ia  to  ba 
celebrated,  showing: 

1.  The  identity  of  the  parties; 

2.  Their  real  and  full  names,  and  places  of  residence; 

3.  Their  ages; 

4.  If  the  male  be  under  the  age  of  twenty-one,  or  the  female  under  the  age 
of  eighteen  years,  the  consent  of  the  father,  mother,  or  guardian,  or  of  one 
having  the  charge  of  such  person,  if  any  such  be  given;  or  that  such  nonaged 
person  has  been  previously,  but  is  not  at  the  time,  mamed. 

For  the  jourpose  of  ascertaining  these  facts,  the  clerk  is  authorized  to  examine 

parties  and  witnesses  on  oath,  and  to  receive  affidavits,  and  he  must  state  such 

facts  in  the  license.     If  the  male  be  under  the  age  of  twent^'-one  years,  or  the 

female  be  under  the  age  of  eighteen,  and  such  person  has  not  been  previously 

married,  no  license  shall  be  issued  by  the  clerk,  unless  the  consent,  in  wiiting, 

of  the  parents  of  the  person  under  age,  or  of  one  of  such  parents,  or  of  his  or 

her  guardian,  or  of  one  having  charge  of  such  person,  be  presented  to  him;  and 

such  consent  shall  be  filed  by  the  clerk;  jDrovided,  that  the  said  clerk  sball  not 

issue  a  license  authorizing  the  marriage  of  a  white  person  with  a  negro,  mulatto, 

or    Mongolian.     [Amendme)il,   approved  Aprd   G,   1880;    Anicndinenls    1880,   3 

(JUiii.id.  121);  look  effect  immedialchi.\ 

Gwear:n3  falsely  as  to  the  age  uf  a  woman  the  accused  desired  to  marry  is  perjury:  People 
V.  K,'lbi,  o\)  C.d.  ;i72. 

70.  llij  irlioni  Kolemnized. 

Sec.  to.  Marriage  may  be  solemnized  bj'  either  a  justice  of  the  supreme 
court,  juilge  of  the  superior  court,  justice  of  the  peace,  priest,  or  minister  of  the 
gospel  of  :uiy  denomination.  |  Amend mt^nt,  approved  April  G,  1880;  Amendinents 
1880,  y  {JJan.  ed.  122);  look  effect  iinmcdialeli/.\ 

25 


85  71-73 


PERSONAL  RELATIONS. 


[Drv.  I,  Part  m, 


ing  upon  a  circuit,  including  the  town  in  which 
ho'dwclls,  is  not  "Battled  in  the  work  of  the 
ministry"  within  the  marriage  act:  Conn.  Stat.,' 
ed.  1808,  lOo,  c.  1,  sec.  2;  G'ov/te/t  v.  Slon- 
imjton,  4  Conn.  209;  but  Bca  Kihb<-  v.  Antram, 
4  id.  l.'>4.  A  person  ordained  .is  a  minister  of 
the  gospel,  according  to  the  form  observed  in 
tlie  IJaptist  churches,  and  being  afterwards 
cn'^aged  by  two  Baptist  societies  in  the  town 
wliere  he  lives  to  preach  to  tliem  alternately, 
"is  a  stated  and  ordained  minister  of  the 
gospel,"  and  a  marriage  by  hi.n  is  valid: 
CommonweaUh  v.  Spooner,  1  Pick.  235.  And 
a  person  wlio  has  once  been  set  a[<art  as  a  pub- 
lic teacher  of  religion  according  to  iho  form  of 
the  sect  to  which  he  belongs  is  an  "ordained 
minister,"  and  whether  settled  over  any  society 
or  not,  is  qualified  to  solemnize  marriage  in  the 
country  wlierehehashis  "permanentresidence:" 
Londonderry  v.  Chester,  2  N.  H.  26S:  see  Pen. 
Code,  sec.  359,  for  penalty  for  solenmization  of 
an  illegal  marriage. 


■Who  may  solemnize  marriage. — The 
North  Carolina  statute  .admits  every  one  to  bo 
u  minister  wiio,  in  the  view  of  his  own  church, 
has  the  cure  of  souls  by  the  ministry  of  the 
\Vord,  anil  any  of  tlie  sacraments  of  God,  accord- 
ing to  its  ecclesiastical  policy,  implying  spirit- 
ual authority  to  receive  or  deny  any  ilesirous 
to  be  partakers  tliereof,  and  to  administer 
adinonitiou  or  discipline  as  ho  may  deem  the 
Baine  to  1)C  to  the  soul's  healtli  of  the  jjcrson, 
antl  tlio  promotion  of  godliness  among  the 
people.  When  to  such  a  ministry  is  annexed, 
according  to  the  canons  or  statutes  of  the 
particuhir  church,  tlio  faculty  of  performing 
thcoliiceof  solemnizing  marriage,  the  qualifica- 
tion of  the  minister  issufiiciont:  Slate  v.  Braij, 
13  I  red.  L.  289.  In  Connecticut  no  minister 
has  a  right  to  jierform  tlie  marriage  ceremony 
if  he  is  not  an  ordained  minister,  and  settled 
in  the  work  of  the  ministry  in  some  jdace  in 
the  state:  lioberU  v.  Sttte  Treasurer,  2  Root, 
381.  And  a  ilcacou  of  the  Methodist  Episcopal 
church  licensed  to  preach,  and  actually  preach* 

71.    No  particular  form  of  solemnization. 

Sec.  71.  No  particular  form  for  the  ceremony  of  marriage  is  required,  but  the 
parties  must  declare,  in  the  presence  of  the  person  solemnizing  the  marriage, 
that  they  take  each  other  as  husband  and  "wife. 


Form  of  ceremony. — "No  particular  form 
of  words  is  essential  to  the  solemnization  of 
marriage  unless  the  statute  not  only  requires 
the  words  to  bo  used,  l)ut  declares  the  mar- 
riage to  be  null  where  they  are  not  used.  It 
is  sufficient  for  the  proper  person,  as  a  minister 
or  justice  of  the  peace,  to  be  present,  and  take 
cognizance  of  the  mutual  engagement  of  the 
parties  to  the  marital  relation.  But  if  such 
person — so  it  was  held  in  Massachusetts  [Mil- 
ford  v.  Worcester,  7  Mass.  48],  contrary  to 
what  we  have  seen  to  be  claimed  as  the  eom- 
moudaw  doctrine — does  not  consent  to  act  in 
his  oflicial  capacity,  and  does  not  so  act,  though 


he  is  present  and  witnesses  their  mutual  under- 
taking, the  ceremony  has  no  other  ell'ect  than  , 
if  witnessed  by  an  unauthorized  person.  Yet 
the  defect  would  not  vitiate  the  marriage  un- 
less the  statute  contained  an  express  clause 
nullifying  all  marriages  not  celebrated  by  such 
otficial  person:"  1  Bishop  on  Mar.  &  Div., 
sec.  289. 

"  No  contract  of  marriage,  if  otherwise  duly 
made,  shall  be  invalidated  for  want  of  con- 
formity to  the  requirements  of  any  religious 
sect:"  Const.  Cal.  1879,  art.  20,  sec.  7;  so  also 
art.  11,  sec.  12,  former  constitution. 


72.    Rrqidntes  on  solemnization  of  marriage. 

Sec.  72.  The  person  solemnizing  a  marriage  must  first  require  the  presenta- 
tion of  the  marriage  license;  and  if  he  has  any  reason  to  doubt  the  correctness 
of  its  statement  of  facts,  he  must  first  satisfy  himself  of  its  correctness,  and  for 
that  purpose  he  may  administer  oaths  and  examine  the  pai'ties  and  witnesses  in 
like  manner  as  the  county  clerk  does  before  issuing  the  license.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  ISG;  look  effect  Jahj  1,  1874.  J 

Necessity  of  license.— Although  a  person 
who  solcniizes  a  marriage  without  a  license  is 
subject  to  a  penalty,  the  marriage  is  not  voivl: 
A^Lew  V.  Duprei',  30  Ga.  173;  State  v.  Iiobbin.i, 
G  Ired.  L.  23.     And  in  the  District  of  Colum- 


bia a  marriage  celebrated  by  a  clergyman  in 
facie  ecclvs'ice  is  not  invalid  for  want  of  a  mar- 
riage license:  Blackburn  v.  Crairford^,  3  Wall. 
1 7.').  The  marriage  of  persons  without  a  license 
is  to  be  dealt  with  as  a  misdemeanor,  and  in  no 
other  manner:    White   v.  State,    4  Iowa,    449. 


And  if  persons  are  married  by  a  minister,  the 
license  being  obtained  from  an  improper  county 
doi.'s  not  make  the  marriage  void:  Gatewood  v. 
Tiud;  3  Bibb,  240. 

The  original  section,  thus  amended  at  the 
recommendation  of  the  code  examiners,  de- 
clared that  "the  person  solemnizing  a  mar- 
riage must  first  require  the  presentation  of  the 
marriage  license,  and  satisiy  liim-^clf  iliac  it 
substantially  conforms  to  section  G9,  aiid  that 
the  facts  set  forth  in  it  are  true." 


73.    Certificate  of  marriage. 

Sec.  73.     The  person  solemnizing  a  marriage  must  make,  sign,  and  indorse 
upon,  or  attach  to,  the  license,  a  certificate,  showing: 

1.  The  fact,  time,  and  place  of  solemnization;  and, 

2.  The  names  and  places  of  residence  of  one  or  more  witnesses  to  the  cere- 


Title  I,  C  ap.  L]  CONTRACT  OF  MARRIAGE.  §§  74-78 

njony.     [Aincii(]m")}t,  approved  March  30,  187-i;  Ainendments  1873-4,  187;  took 

effcclJalu  1,  1874.  J 

False  return,  pi?nalty  for:  See  Pen.   Code,  iiiers,  contained  an  additional  subdivision,  aa 

sec.  3u0.  fillows:   "That  he  believes  tlie  facta  stated  to 

Tiie   original   section,  amended    to   read   as  be  true,  and  that  upon  due  inquiry  there  ap- 

abovc  "at  the  sujrgestion  of  several  clergymen  pears  to  be  no  impediment  to  the  maniage." 
of  San  Fraucisco,"  as  stated  by  the  codeexani- 

74.  Certificate  to  parties  and  recorder. 

Sec.  74.  He  must,  at  the  request  of  and  for  either  party,  inalce  a  certified 
copy  of  the  license  and  certificate,  and  file  the  originals  with  the  county 
recorder  \viihin  thirty  days  after  the  luarriage. 

Filing  certificates. —  An  indictment  in  In-  luoutlis,    an     indictment    which    shows    that 

dia.ia  alleged  that  the  dLfcudant,  being  a  jus-  three  months  and   fourteen  days  had  elapsed 

tice  of  the  peace,  solenniizcd  a  marriage  and  cannot  be   suslained,  as  no  tine   could  be  iin- 

nc"lectrd  to  iile  in  the  cK  rl:'s  oflice,  for  more  posed  for  a  delay  of    less  than   a   full   month 

than    three    months    thereafter,    a    certilicate  fnin  the  exjiiration  of  the  three  months:   Kent 

of  the  luarriagc.     It  was  plc;;ded  in  abatcnunt  v.  S/ute,  8  Id.  ]G'.\.     And  sueli  a  statute  does 

that  the  nr.mcs  of  the  grand  jurors  \\  1  o  found  not  create  a  distinct  offense  each  month  if  after 

the  indictment  were  not  sulectcd  by  the  county  the  e.xjiiration  of  three  months  the  olUeers  so 

beard  ;;t  their  May  session  from  the  iistof  taxa-  soLmnizing  the  marriage  shall  fail  to  Iile  such 

ble  persons,  and   it  was   held  that  the  indict-  ctrlilicate:    State    v.    Pool,    2   Ind.   2'_'7.      "If 

mcnt  was  good  and  the  pica  bad:  State  v.  Cain,  such  was  the  case,  the  prosecutor  could  not  be 

G   Blackf.   4i2i'.     And   in    Indiana,   where  the  permitted    to   prove   several   distinct   olfcusea 

statute  rerpiircd  him  to  (lie  the  certificate   in  under  one  count:"  Id. 

the  proper  ollico  witliin  three  months  after  the         Recording  of  the  certificate:  See  Pol.  Code, 

solemnization,  rnd   imposed  a  penalty  of  five  sec.  4233. 
dollars    a   month   for    delay   after    the   three 

75.  Declaration  of  marriage,  how  made. 

Sec.  75.  Persons  married  without  the  solemnization  provided  for  in  section 
seventy  must  jointly  make  a  declaration  of  marriage,  substantially  showing: 

1.  The  names,  ages,  and  residence  of  the  parties; 

2.  The  fact  of  marriage; 

3.  The  time  of  marriage; 

4.  That  the  marriage  has  not  been  solemnized. 

Declaratiou  of  marriage. — The  code  ex-  clare  also  in  the  presence  of  three  witnesses 
aminers  proposed  as  an  amendment,  which  that  they  take  each  other  as  husband  and 
was  not  adopted,  that    the  parties    must  de-     wife. 

76.  Declaration  of  marriage,  luhat  to  contain. 

Sec  7G.  If  no  record  of  the  solemnization  of  a  marriage  heretofore  con- 
tracted be  known  to  exist,  the  parties  may  join  in  a  written  declaration  of  such 
marriage,  substantiall}'  showing: 

1.  The  names,  ages,  and  residences  of  the  parties; 

2.  The  fact  of  marriage; 

3.  That  no  record  of  such  marriage  is  known  to  exist.  Such  declaration 
must  bo  subscribed  by  the  parties  and  attested  by  at  least  three  witnesses. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  187;  took  effect 
Jul,,!,  1874.] 

77.  T'l  he  acknoxcledged  and  recorded. 

Snc.  77.  Declarations  of  marriage  must  be  acknowledged  and  recorded  in 
like  manner  as  grants  of  real  property. 
Recorder  must  record:  Sec  Pol.  Code,  sec.  42.'i5. 

78.  Actum  between  the  pa/iies  to  determine  validity. 

Sec  78.  If  either  party  to  any  marriage  denies  tne  same,  or  refuses  to  join  in 
a  declaration  thereof,  the  other  may  proceed,  by  action  in  the  superior  court,  to 
have  the  validity  of  the  marriage  determined  and  declared.  [Amendment,  ajtjiroved 
February  15,  1883;  Statutes  and  Ann'ndmenis  1883,  3;  took  cffrct  immediately.] 

This  anieufiraeni  simply  conformed  the  secti  n  to  the  new  constitution. 

27 


§§  79-82  PERSONAL  RELATIONS.  [Div.  I,  Part  IJI, 

79.  Marringp,  withou'  license. 

Sec.  79.  Wbeu  urinan-ieJ  persons,  not  minors,  Lave  been  living  together  as 
man  and  wife,  they  may,  -without  a  license,  be  married  by  any  clergyman.  A 
certificate  of  such  marriage  must,  b}'  the  clergyman,  be  made  and  delivei'ed  to 
the  parties,  and  recorded  upon  the  records  of  the  church  of  which  the  clergy- 
man is  a  representative.  No  other  record  need  be  made.  [New  seel  ion, 
approved  February  G,  1878;  Amendments  1877-8,  75;  took  effect  from  pasmgc.\ 

ARTICLE  III. 

JTIDICIAL   DETERMINATION    OF   VOID    MAREIAGES. 

This  article,  as  an  entirety,  was  addeil  to  the  Civil  CoJe  by  act  of  March  15,  1S7G;  Ameud- 
inents  187 J-G,  (JD;  took  cfTect  from  passage. 

80.  Judicial  dtvlaralion  of  incestuous  or  void  marriage. 

Sec.  80.  Either  -pavij  to  an  incestuous  or  void  marriage  may  proceed,  by 
action  in  the  sui^erior  court,  to  have  the  same  so  declared.  [Amendment, 
approved  April  G,  ISSO;  Amendments  1880,  4  (Ban.  ed.  122);  took  effect  imme- 
diately.] 

CHAPTER  11. 

DIVORCE. 

Article  I.  NnixiTT 82 

II.  Dissolution - 90 

III.  CAnsEs  FOR  Denying  Divorce Ill 

IV.  GjiNEKAL  Provisions 133 

ARTICLE  I. 

NULLITY. 

82.  Grounds  for  annulment  of  marriage. 

Sec.  82.  A  marriage  may  be  annulled  for  any  of  the  following  causes,  existing 
at  the  time  of  the  marriage : 

1.  That  the  party  in  whose  behalf  it  is  sought  to  have  the  marriage  annulled 
was  under  the  age  of  legal  consent,  and  such  marriage  was  contracted  without 
the  consent  of  his  or  her  parents  or  guardian,  or  person  having  charge  of  him 
or  her;  unless,  after  attaining  the  age  of  consent,  such  party  for  any  time  freely 
cohabited  with  the  other  as  husband  or  wife; 

2.  That  the  former  husband  or  wife  of  either  party  was  living,  and  the  mar- 
riage with  such  former  husband  or  wife  was  then  in  force; 

3.  That  either  party  was  of  unsound  mind,  unless  such  party,  after  coming 
to  reason,  freely  cohabit  with  the  other  as  husband  or  wife; 

4.  That  the  consent  of  either  party  was  obtained  by  fraud,  unless  such  party 
afterward,  with  full  knowledge  of  the  facts  constituting  the  fraud,  freely  cohab- 
ited with  the  other  as  husband  or  wife; 

5.  That  the  consent  of  either  party  was  obtained  by  force,  unless  such  party 
afterwards  freely  cohabited  with  the  other  as  husband  or  wife; 

6.  That  either  party  was,  at  the  time  of  marriage,  physically  incapable  of 
entering  into  the  married  state,  and  such  incapacity  continues,  and  appears  to 
be  incurable.  [Amendment,  approved  MarcJi  30, 1874;  Amendments  1873-4, 187; 
took  effect  July  1,  1874.] 

Nullity  of  marriage. — "While  a  suit   for  more  affected  by  it.     The  cliildren  especially 

nullity  follows  substantially  the  same  rules  as  a  have  their  legitimacy  or   illejjjitimacy  irrevo- 

Buit  for  <livt>rce,  yet  it  outs  "leeper  into  tlie  soil  cably  established  by  this  Buit,  while  tliey  do 

of  consequences  than  tlie  divorce  suit,  because  not  by  a  suit  for  divorce.     Tlierefore  it  haa 

the  interests  and  riglits  of  third  persons  are  been  said  to  be  a  more  highly  privileged  suit, 

28 


Title  I,  Ciiaf.  II.  ] 


DIVORCE. 


882 


and  it  excites  to  even  a  greater  degree  the  vigi-  idiocy  or  insanitj':    Ekey  v.   Etznj,   1   Honst. 

la. ice  and  caution  (  f  the  court.     Yc:t  where  a  308.     But  a  marriage,  if  made  with  a  fool,  or 

case  io  siiiliciciit'y  raacle  out  liie  court  ha^  no  person  uon  compos  vtentia,  is  absolutely  void: 

discretioi),  and  it  must  proceed  to  the  sentence.  JSliddU'borowjIi  v.  Ilorhcster,  12  Mass.  oG.3;  True 

It  i.3  (  f  no  avail  that  the  dtfciulant  is  innocent  v.  Rwivpy,  21    N.   H.    52;    Foxier   v.    JiJea7)s, 

of  any  intent  to  do  wrong,  or  t!iat  t!ie  plaintiff  Spears   Ch.   i;(59;    Cole   v.    Cole,   5   Snced,   57; 

is  i:i  fact  the  more  guilty  party:  "  2  Bishrp  on  Uoe   v.  Roe,   1    Ivlm.   Sel.  Cas.  344;  Oa^/iing-t 

Mar.  &  Div.,  ."^ec.  2.)4.  v.   U'il/iarn.t,  5  Ircd    L.  4S7;  so  al.^o  the  idiocy 

fu/Ubcl  1.     Conssat  of  parents. —  "The  con-  of  a  ];artyalso  niaUcsa  marriage  void:  Johnson 

sent  I  f  jnxrents  and  guariiian.9,  ■sphere  a  party  v.    Kincaile,  2   Ircd.   P]q.   70;    and  a  marriage 

is   nmlcr  the  age  of  legal  consent,    is  one  of  cercnioiiy  perfnrmed  while  one  of  the  parties  is 

thosu  formalilies  which     marriagc-ccl'.bration  insane  from  (lellrium  tremens  is  void:  i'lcmcnt 

acts  now  commonly  prescribo  in  the  interest  of  v.  Matron,  3  Rich.  93.     In  a  suit  for  a  nullifi- 

society,  a.";  tiicy  do  l^anns,  or  the  procurement  cation  for  tlie  lunacy  of  one  of  the  parties  at 

of  a   license,    generally   tor    better   publicity,  the  time  of  the  marriage,  the  court  has  no  dis- 

Such  consent  was  not  necessary  at  the  e(jm-  crctionary  power  in  granting  or   refusing  the 

mon  law:"   Schouler  on    Dom.   ilcl.,  sec.  30.  petition:    Crump  v.  Morgan,  3  Ired.   Eq.    91; 

"The  want  of  consent  of  parents  was,  in  the  but  the  validity  of  such  a  marriage  will  not  be 

language  of  the  ecclesiastical  law,  an  imped!-  questioned  or  tried  collaterally  or  incidentally: 

menlitm   impcdUivum,   an    impediment    v/!iich  IVilHamson  v.  WilHams,  ^  Jonca  Eq.  440;  Goshen 

threw  an  ohstrucLion  in  the  way  of  the  eele-  v.  Richmond,  4  Allen.  4.3S;   but  if  the  couple 

bration,  but  not  nn  imprdimentum  dirimens,  an  live;l  together  as  man  and  wife  unlil  his  death, 

impediment  aliecting  tlie  validity  of  the  mar-  the  vah\li:;y  of  the  marriage  cannot  be  impugned 

ria^e  once   solemnized:"  1  Eis'iop  en  Mar.  &  on  the  ground  that  he  was  out  of  his  mind 


Div.,  sec.  2j3.  The  common-lav/  rules  as  to 
the  v.'ant  of  age  are  stated  in  the  note  to  Gath- 
iug^  V.    ]Vdliam-^,  44  Am.  Dec.  57. 

Gubd.  2.  "Wlisre  tliero  v/as  a  prior  exist- 
ing inarriage:  tSee  scc.  Gl,  subd.  2,  and  noLe. 
A  cause  of  action  toannal  a  marriage  by  reason 


wlien  the  ceremony  was  performed:  ScJjalot  v. 
Popidiis.  31  La.  Ann.  854.  Numerous  other 
authorities  on  this  point  are  referred  to  in  the 
note  to  Gathin(/s  v.  Willicims,  41  Am.  Deo.  55. 
Gubd.  4.  i'raud  in  obtaining  m.'irriage: 
See  sec.  58,  and  note.     If  a  woman  be  with 


\ 


of  a  fornier  marriage  of  tlie  plaintilf  to  one  who  child  by  a  stranger  at  the  time  of  marriage, 
is  still  alive  cannot  be  joined  with  a  cause  of  and  her  intended  husband  be  ignorant  thereof, 
action  to  qui.t  her  title  to  her  separate  prop-  the  fraud  vitiates  the  contract:  Baker  v.  Baker, 
erty,  la  which  the  defendant  falsely  claims  v.n  13  Cal.  87;  I.Iorrls  v.  Morris,  Wright,  030;  but 
interest:  Uhl  v.  UJd.  52  Cal.  250.  Where  the  if  a  man,  after  having  sexual  intercourse  with 
plaintiff  sought  a  divorce,  and  the  defendant  a  woman,  marries  her,  on  faith  in  l;er  assurance 
set  up  a  marriage  earlier  in  date  than  his  mar-  that  she  is  not  pregnant,  the  fact  that  she  was 
riagc  to  tlie  plaintiff,  and  asked  for  a  decree  of  tlien  pregnant  witli  a  bastard  child  of  which  ha 
nullity  of  the  marriage,  it  was  held  the  ]ilaint-  was  not  the  father  is  not  a  ground  for  avoidance 
iff  was  not  entitled  to  the  divorce,  the  relation  of  the  contract:  Crehore  v.  Crehore,  97  Mass. 
of  husband  and  v.  ifc  never  having  existed,  and  330;  Foss  v.  Foss,  12  Allen,  26.  And  in  North 
that  the  defendant  was  entitled  to  a  decree  of  Carolina,  if  a  husban.i  might  have  known  that 
nnllity  as  prayed  for:  Finn  v.  Finn,  02  How.  his  intended  wife  was  pregnant,  he  is  not  en- 
Pr.  83.  But  in  a  proceeding  to  annul  a  mar-  titled  to  a  divorce:  Srroggins  v.  ScroggiuK,  3 
riage  on  the  ground  that  the  wife  bad  a  forn'.er  Dev.  L.  535;  Darden  v.  Burden,  Id.  548.  But 
husband  living,  it  appearing  that  the  wife  had  where  a  man  was  induced  to  marry  a  woman 
admitted  that  s!ie  knew  such  former  husband  by  her  repre  renting  to  him  that  a  child  she 
was  living  wlien  the  second  marriage  was  cm-  iiad  was  his,  and  tliat  as  to  all  the  world  but 
tracted,  it  M-as  held  insufficient  to  warrant  a  him  slie  was  virtuous,  and  after  the  marriage 
decree  of  nullity,  the  other  evidence  as  to  his  he  discovered  the  child  was  black,  it  was  held 
being  alive  being  unsatisfactory:  Le  Brim  v.  that  he  was  entitled  to  a  divorce  if  the  color 
Le  Briin,  55  Md.  430.  For  other  autliorities  on  was  so  indistinct  as  to  mislead  ordinarydiligenca 
this,  sec  the  note  to  Gaihings  v.  Williams,  44  or  the  child  iiad  been  kept  out  of  sight:  Id.; 
Am.  Dec.  54.  Scoft  v.  Shi'/cit,  5  Paige,  43.  See  also  Hoffman 
Subd  3.  Insanity. — A  marriage  is  not  to  v.  H.'ffman,  30  Pa.  St.  417.  Wlierc  a  !)ushand 
be  declared  void  because  of  the  mental  incapaci-  represented  that  liis  former  wife  was  deceased, 
ty  of  one  of  the  parties,  except  upon  the  clear-  when  in  reality  she  was  living  and  lie  Iiad  been 
est  and  most  dctinite  evidence,  and  but  little  divorced  from  her,  it  was  held  tliat  these  repre- 
weight  should  be  given  to  the  opinion  of  a  sentations,  even  thougli  fraudulent,  and  though 
physician  v/ho  did  not  at  the  time  of  the  mar-  the  plaintiff  would  not  have  married  liim  had 
riagc  see  or  know  of  the  mental  condition  of  she  known  the  truth,  furnished  r.o  reason  for 
the  party  claimed  to  be  insane:  Slais  v.  Slais,  granting  her  a  decree  declaring  the  marriage 
9  Mo.  App.  90.  A  valid  marriage  cannot  be  null:  Clarke  v.  Clarke,  11  Abb.  Pr.  228.  Those 
contracted  by  an  insane  person,  nor  by  a  luna-  frauds  which  invalidate  a  marriage  are  usually 
tic,  except  during  a  lucid  interval,  since  he  can-  such  as  negative  any  consent  to  be  married  at 
not  consent  to  any  contract;  but  mere  weakness  all,  without  reference  to  previous  inducements, 
of  intellect,  unless  iL  amounts  to  derangement,  and  are  commonly  duress,  surprise,  or  strata- 
is  not  sufficient  to  avoid  the  marriage:  J'awdoii  gem  in  procuring  the  marriage;  and  the  fraud 
V.  Rawdov,  28  Ala.  505;  Crump  v.  Mornav,  3  must  be  nearly,  if  not  absolutely,  coincident  in 
Ircd.  Eq.  91 ;  and  the  same  degree  of  mind  which  tiTue  with  the  marriage,  and  operate  to  destroy 
will  enable  a  ]:arty  to  make  ft  valid  deed  or  will  that  intelligent  consent  which  is  required  for 
will  be  sufficient  to  enable  him  to  contract  mat-  the  marriage  itself,  rather  than  the  preliminary 
rimony:  Atkinson  v.  Medford,  40  Me.  510;  and  engage r.ient:  L-avi't  v.  L'-avHf,  13  Mich.  452. 
a  court  cannot  declare  a  marriage  null  and  void  Gubd.  5.  Consaut  obtainGd  by  force:  See 
for  weakness   of  intellect  not  amounting  to  sec.  53,  aw^'e.  aud  note. 

29 


8§  83-85 


PERSONAL  KELATIONS. 


Piv.  I,  Part  III, 


Subd.  6.  Pliysical  Incapacity. — It  was 
held,  ill  Smi'h  v.  Morchead,  (>  Jones  Efj.  SCO, 
that  impotency  in  ft  Imahand  did  not  rciidtr  a 
marriage  hy  liim  void  ah  inillo,  but  only  void- 
able by  sentence  of  separation,  and  tliat  until 
Buch  sentence  it  was  dtemcd  valid  mid  subsist- 
ing. Impotency,  in  order  to  constitute  aground 
of  divorco,  must  exist  at  the  time  of  the  mar- 
riage and  be  incurable:  Baacoiub  v.  Bnwomb, 


25  N.  H.  2G7;  Devnvbnrjh  v.  fJfvanhnfjh,  5 
Paige,  G4;  0  Id.  17.3;  Bame  principle:  Krilh  v. 
Krith,  Wright,  518;  but  see  Burt  a  v.  Bttrtis, 
Hopk.  Ch.  5.17.  And  a  provision  for  annulling 
marriage  for  "physical  incapacity"  does  not  in- 
chideoasesof  incapacity  resulting  from  sickness: 
Morrcll  v.  Morrell,  17  Ilun,  .3-24.  And  impotency 
arising  from  idiocy  is  no  grounil  of  divorce  ia 
Vermont:  Norton  v.  Norton,  2  Aik.  188. 


83.   Action  for  vull'dy,  when  and  by  lohom  commenced. 

Sec.  83.  An  action  to  obtain  a  decree  of  nullity  of  marriage,  for  causes  men- 
tioned in  tbe  preceding  section,  must  be  commenced  within  the  periods  and  by 
tbe  parties  as  follows: 

1.  For  causes  mentioned  in  subdivision  one:  by  tbe  party  to  the  marriage 
who  was  married  under  the  age  of  legal  consent,  within  four  years  after  arriving 
at  the  age  of  consent;  or  by  a  parent,  guardian,  or  other  person  having  charge 
of  such  nonaged  male  or  female,  at  any  time  before  such  married  minor  has 
arrived  at  the  age  of  legal  consent; 

2.  For  causes  mentioned  in  subdivision  two:  by  either  party  during  the  life 
of  the  other,  or  by  such  former  husband  or  wife; 

3.  For  causes  mentioned  in  subdivision  three:  by  the  party  injured,  or  rela- 
tive or  guardian  of  the  party  of  unsound  mind,  at  any  time  before  the  death  of 
either  party; 

4.  For  causes  mentioned  in  subdivision  four:  by  the  party  injured,  within 
four  years  after  the  discovery  of  the  facts  constituting  the  fraud; 

5.  For  causes  mentioned  in  subdivision  five:  by  the  injured  party,  within 
four  years  after  the  marriage; 

G.  For  causes  mentioned  in  subdivision  six:  by  the  injured  party,  within  four 
years  after  the  marriage.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4, 188;  took  effect  July  1, 1874.] 


ing  the  sxibject  of  statirtes  limiting  the  periods 
within  which  suit  may  be  brought,  says:  "A 
statute  of  tliis  nature  is  an  absolute  bar.  The 
knowledge  of  the  offense  in  the  plaintiff's  mind 
is  matter  to  be  shown  by  the  defendant  who 
sets  up  such  a  statutory  bar:"  2  Bishop  on 
Mar.  &  Div.,  sec.  107. 


Action  to  annul  marriage. — The  statute, 
2  N.  Y.  R.  S.  133,  sec.  3.3,  providing  that  a  suit 
to  annul  marriage  for  physical  incompetency 
shall  be  brought  within  two  years  from  the  sol- 
emnization is  a  statute  of  limitations,  to  which 
applies  the  rule  that  the  same  is  not  available 
iniless  pleaded:  Kaiser  v.  Kaiser,  IG  Hun,  002, 
Davis,  P.  J.,  dissenting.     Bishop,  in  discusa- 

84.    Children  of  annulled  marriage. 

Sec.  84.  Where  a  marriage  is  annulled  on  the  ground  that  a  former  husband 
or  wife  was  living,  or  on  the  ground  of  insanity,  children  begotten  before  the 
judgment  are  legitimate,  and  succeed  to  the  estate  of  both  parents. 


Cliildren  of  nullified  marriage A  marriage 

legal  in  form,  Imt  void  by  reason  of  some  iin- 
pediment,  is  a  marriage  "null  in  law,"  and  the 
children  are  legitimate:  SoeGruhamv.  Bennett, 
2  Cal.  50.3,  containing  a  discussion  of  the  rights 
and  liabilities  of  such  children  and  of  t.ieir 
parents.  A  child  begotten  of  a  mother  who 
had  married  in  good  faith,  and  before  any 
doubt  had  arisen  in  her  mind  as  to  the  existence 
of  any  legal  impediment  to  her  marriage,  is  en- 
titled to  all  the  rights  of  a  legitimate  heir  of 
the  mother:  ILirrincjton  v.  Bdrfield,  30  La. 
Ann.  pt.  2,  1297.  By  the  Spanish  law, 
children  begotten  after  both  parties  know  with 


certainty  of  the  existence  of  an  impediment  to 
their  marriage  are  illegitimate;  allter,  as  to 
children  begotten  while  both  or  one  of  the 
parties  was  ignorant  of  such  impediment,  or 
while  a  doubt  existed  in  the  mind  of  either  a? 
to  the  fact  of  any  impediment:  Patton  v.  Phil- 
adelphia  and  New  Orleans,  1  La.  Ann.  98.  As 
to  construction  of  particular  stiitutes  concern- 
ing legitimacy  of  chiLlren  where  the  marriage 
is  a  nullity,  see  PrtUt  v.  Pratt,  5  Mo.  App. 
539;  Liiici'cum  v.  Lincecum,  3  Mo.  441. 

Legitimate  children,  vrho  aic:  See  sees. 
193-195.  See  also,  when  the  qnesdon  arises  in 
divorce  cases  for  adult«ry,  sees.  14-i,  145. 


85.    Custody  of  children. 

Sec.  85.     The  court  must  award  the  custody  of  the  cliildren  of  a  marriage 
annulled  on  the  ground  of  fraud  or  force  to  the  innocent  parent,  lOid  may  also 

30 


TrrLE  I,  CuAP.  11.] 


DIVORCE. 


86-91 


provide  for  their  education  and  maintenance  out  of  the  property  of  the  guilty 
party. 

Custody  of  chfldren  in  divorce  causes:  See  sec.  138,  post. 

86.    Effect  of  judgment  of  nullily. 

Sec.  8G.     A  judgment  of  nullity  of  marriage  rendered  is  conclusive  only  aa 
against  the  parties  to  the  action  and  those  claiming  under  them. 

CJoncluaivene83  of  decree  for  divorce:  See  sec.  91,  pot<t,  and  note. 


ARTICLE  II. 

DISSOLUTION    OF   MABUIAQE, 

90.  Marriage,  how  dissolved. 

Sec.  90.     MaiTiage  is  dissolved  only: 

1.  By  the  death  of  one  of  the  parties;  or, 

2.  By  the  judgment  of  a  court  of  competent  jurisdiction  decreeing  a  divorce 
of  the  parties.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
189;  took  effect  July  1,  1874.] 

Jury  trial  iu  divorce  causes  cannot  be  de-        History  of  tlie  law  of  divorce:  Consult- 1 
manJed  as  a  constitutional  riglit:  Cassidy  v.     Bishop  on  Mar.  &  Div.,  sees.  21  et  seq. 
Sullivan,  G4  Cal.  2G6. 

91.  Divorce,  effect  of  judgment. 

Sec.  91.  The  effect  of  a  judgment  decreeing  a  divorce  is  to  restore  the  parties 
to  the  s'ate  of  unmarried  persons.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  189;  took  effect  July  1,  1874.] 


Effect  of  judgment  of  divorce. — By  a  de- 
cree gvantiug  a  divorce  a  vinculo,  the  rights  of 
the  parties  under  the  law  thf^n  in  force  are 
fixed,  .and  tlicnct  forth  remain  uncliar.gcd: 
M'hitsellv.  2iills,  0  Ind.  229;  from  the  time  of 
the  decree  tlie  wife  owes  no  marital  duties: 
Forrest  v.  Forre-t,  .3  Bosw.  GGl.  Uuder  Ken- 
tucky statutes,  the  wife  separated  by  a  decree 
for  alimony  may  mr.ke  binding  contracts:  J'aj/- 
lor  V.  .SV';//;/,so»,  .'>  J.  J.  Marsh.  GG9;  but  a  di- 
vorce a  mciixa  et  ihoro  does  not  destroy  the 
relation  of  marriage  so  as  to  enable  the  w.fe 
thus  divorced  to  maintain  an  action  against  her 
Imsband:  Darhcrw  Larber,  1  Chand.  2S0.  A 
decree  of  divorce  a  vinculo  in  favor  of  the  wife 
defeats  and  detcrnu'ntsall  the  rights  and  inter- 
ests of  her  husband  in  and  to  her  lauds,  and 
restores  Lcr  riglits  precisely  as  her  husband's 
death  would  have  restored  them:  Boyldn  v. 
Rain.  28  Ala.  :5:]2;  Starr  v.  Pease,  8  Comi.  i}41; 
Wood  V.  Summons,  20  Mo.  303;  and  a  lease  by 
the  husband  of  binds  held  in  right  of  his  wife 
cannot  inure  .ngainst  his  wife  after  a  divorce  a 
vinculo  as  evidence  of  lessee's  right  of  posses- 
sion, but  on'y  of  his  right  of  entry  for  emble- 
ments: Gould  V.  Webiler,  1  Tyler,  409;  but  in 
Barker  V.  Cobb,  30  N.  II.  344,  it  was  held  that 
a  divorce  did  not,  ipso  facto,  cut  off  the  riglits 
of  the  husbanil  in  the  real  estate  of  the  wife, 
but  it  required  the  decree  of  tlie  court  to  dis- 
cumber  tlin  estate  from  the  husband's  riglits. 
A  divorccil  woman  has  no  interest  as  survivor 
in  the  estate  of  her  former  husband:  Chenon-ifh 
V.  Ch'-nowilh,  14  Ind.  2;  McCafferiy  v.  McCaf- 
Jertij,  8  Bkckf.  218;  Cunningham  v.  Cunning- 
ham, 2  Ind.  233.  And  a  wife  divorced  for  her 
fault  has  no  claim  to  dower  by  virtue  of  the 
formal  marital  rehition:  McCraney  v.  McCraney, 
6  Iowa,  232;  but  if  the  husband's  adultery  was 
the  grouml  of  the  divorce,  the  wife  is  not  de- 
prived of  her  right  of  dower  in  his  real  estate: 


Wait  V.  Wait,  4  N.  Y.  95.  And  in  North  Caro- 
lina she  is  not  deprived  of  her  last  year's  pro- 
vision by  her  adultery,  as  she  is  of  her  dower: 
Wallers  V.  Jordan,  12  Ired.  L.  170. 

The  recitals  in  a  decree  of  divorce  are  con- 
clusive against  the  party  who  sought  it:  Pres- 
cott  v.  Fisher,  22  111.  390;  but  a  decree  dismiss- 
ing a  libel  lilcd  by  a  wife  against  her  husband, 
after  having  left  his  house,  for  a  divorce  from 
bed  and  board  for  extreme  cruelty,  is  not  con- 
clusive evidence  of  her  having  unjustifiably 
left  his  house,  in  an  action  by  a  tliird  person 
against  him  for  necessaries  furnished  the  wife: 
Burden  v.  Shannon,  3  Gray,  387.  A  decree 
dismissing  a  libel  for  divorce  upon  a  hearing  of 
the  merits  is  a  bar  to  any  future  libel  for  the 
same  cause;  otherwise,  if  the  libil  is  dismissed 
for  defect  of  proper  allegations,  or  for  want  of 
prosecution,  or  on  motion  of  the  libelant: 
Brown  v.  Brown,  37  N.  H.  53G;  see  Vance  v. 
Vance,  17  Jle.  203.  A  judgment  upon  the 
merits,  dismissing  a  libel  for  divorce  from  bed 
and  board  on  the  ground  of  cruelty,  is  a  bar  to 
a  sul)scqucnt  libel  filed  after  live  years,  for 
a  divorce  from  the  bonds  of  matrimony  for 
the  same  cause,  although  there  is  evidence  of 
other  acts  of  cruelty  previous  to  the  fornur 
libel  than  those  testified  to  at  the  trial:  Fcra 
v.  Fera,  98  Mass.  155;  see  Vinxant  v.  Vinsant, 
40  Iowa,  G39;  but  where,  in  a  wife's  action 
for  sejiaration  seven  years  after  it  was  insti- 
tuted, an  order  was  made  allov.ing  an  amend- 
ment of  the  complaint,  changing  it  to  a  suit  for 
an  absolute  divorce,  and  tliis  without  pei-soual 
notice  to  the  liusband,  though  her  application 
showed  that  she  knew  his  whereabouts,  the  di- 
vorce granted  on  such  amendment  must  be  set 
aside:  Hobertsonv.  Uohertson,  9  Daly,  44;  but  it 
was  held  that  the  Nebraska  statute,  sec.  536, 
which  provides  for  opening  judgments  rendered 
upon  constructive  service  had  not  application  to 


81 


192 


PERSONAL  RELATIONS. 


[DiT.  I,  Part  III, 


actions  for  divorce:  O'Convrll  v.  O'Conndl,  10 
Ncli.  'AOO.  A  jiul'^mciit  of  divorce  aguiust  a 
wifi!,  wlicrii  tiio  ajipoarancc  of  an  attorney  wixs 
v/ilhout  licr  knowledge  or  consent,  i:j  not  void, 
hut  voiilaMc  at  lier  instance,  and  it  cannot  l>e 
nttackcd  l)y  her  hushand  or  liia  grantei  :  Eill'lt 
V.  Woldfrom,  f),!  C\\\.  3S4.  An  nncxcused  de- 
hiy  of  nine  J'e;.r3,  and  until  after  the  death  of 
tho  oUier  p;irty,  in  attacking  a  decree  of  di- 
vorce, is  fatal  to  a  proceeding  to  set  itasiile  for 
tlie  purpose  (jf  ohUiiiiing  an  interest  in  Ihe  de- 
cedent's estate:  Zoc/lncr  v.  Zocllncr,  46  Jlieh, 
511;  hut  upon  a  suilicient  cause  shown,  a  de- 
cree of  divoi'ce  may  he  vacated,  aUhough  the 
libelant  is  dead,  ard  more  than  twelve  years 
have  elapsed  since  t!ie  decree  was  made:  Fidel- 
ity I  m.  i'o.'s  ATpe'il,  do  Pa.  .St.  242.  As  to 
■when  a  decree  of  divorce  will  or  will  not  be  set 
aside  on  t!ie  ^Tound  of  fraud,  see  liager  v. 
IlecJccl,  85  N.  Y.  4Sr!;  S.  C,  21  Ilun,  480; 
Simons  v.  Simons,  47  Midi.  2o3;  Webstrr  v. 
Webster,  54  Iowa,  153;   Wannviaker  v.  Wana- 

92.    Grounds  of  action  for  divorce. 

Sec.  92.     Divorces  may  be  granted  for  any  of  the  following  causes: 

1.  Adultery;  , 

2.  Exti'erae  cruelty; 

3.  Willful  desertion; 

4.  Willful  neglect; 

5.  Habitual  intemperance; 

6.  Conviction  of  felony.     \ Amendment,  approved  March  30, 1874;  Amendments 
1873-4,  189;  took  effect  Juhj  1,  1874.] 


maker,  10  Phila.  4G6;  Orttijs  v.  Getfifx,  3  Lea, 
2G0;  De  Oraw  v.  De  Oraw,  7  Mo.  Ap]).  121. 

Parol  testimony  is  not  admissible  to  change 
tlie  terms  of  a  decree  of  divorce,  or  vary  the 
ri  ^'hts  of  the  parties  thereunder:  IVitson  v.  IVil- 
no)/,  45  Cal.  .39^. 

In  the  absence  of  a  statement  in  the  decree 
that  tho  parties  are  divorced  a  v'nculo,  ib  does 
n  >t  make  the  divorce  one  simply  a  raansa  et 
thorn;  the  word  "divorced"  is  to  be  tal^en  in 
its  l)rond  sense:   MiHnr  v.  Miller,  33  Cal.  353. 

Foreign  divorces,  validity  of:  See  note  to 
Tnlcn  V.  Tolen,  21  Am.  Dec.  747.  A  divorce 
obtained  in  another  state  against  a  non-resident, 
for  whom  an  attorney  appeared  without  au- 
tlioritv,  is  voidable:  ElLott  v.  Woldfrom,  55 
Cal.  3S4. 

S3Cond  marriage. — The  court,  on  decreeing 
a  dissolution  of  tiio  marriage,  has  no  |)ower  to 
i'.npose  restrictions  upon  .n,  second  marriage  of 
either  party:  Barber  v.  Barber,  10  Cal.  378. 


Pleading  in  divorce  causes. — Ordinary 
rules  of  pleading  are  not  rendered  by  statute 
any  the  less  necessary  to  be  observed  in  divorce 
causes:  Conant  v.  Vonaitt,  10  Cal.  249.  In  fact, 
nothing  can  be  taken  by  admission  or  default: 
Id. ;  the  object  being  to  prevent  collusion.  But 
it  seems  that  the  marriage  may  be  admitted: 
Fox  v.  Fox,  25  Id.  587. 

Eesidenee  and  nvrriar/e. — The  plaintiff  must 
aver  and  prove  the  residence  in  good  faith  dur- 
ing the  statutory  period,  -whether  denied  or 
not:  Bennett  v.  Bcnne't,  28  Cal.  590;  Coidlhnrst 
v.  CouUhnrst,  58  Id.  239;  Maxwell  v.  Maxu-e/l, 
53  Ind.  3G3;  Powell  v.  Powell,  Id.  513;  JJuston 
Huston,  C3  Jle.  181;  Burns  v.  Burns,  13  Fla. 
3G9;  must  allege  and  prove  tlie  m.arriage:  Ilas- 
l-ell  V.  Hasten,  54  Cal.  2G2;  Coultlmrst  v.  Coul- 
thurst,  53  Id.  230;  Brinkley  v.  Brinkley,  50  N. 
Y.  134,  193;  Collins  v.  Collins,  80  N.  Y.  1;  2 
F>i3hop  on  INIar.  i  Div.,  sec.  2C2;  Stewart  ou 
Mar.  &  Div.,  sec.  354. 

Residence  and  marriage  are  essential  ele- 
ments of  t'.ie  cause  of  action  in  suits  for  divorce, 
and  it  several  causes  of  action  are  set  up  in  tho 
sauie  complaint  for  a  divorce,  each  count  must 
contain  all  the  facts  necessary  to  constitute  a 
cause  of  action,  or  must  make  allegations  in 
prior  counts  a  part  thereof  by  ppeciil  reference: 
Haskell  v.  Hash  II,  54  Cal.  2G2.  Cut  it  seems 
from  tlie  same  decision  that  even  a  referenco 
will  be  insuflicient  if  the  matters  thus  sought 
to  be  made  a  part  of  a  count  relate  to  the 
gravamen  of  the  action.  The  necessity  of 
making  each  cause  of  action  complete  in  pro- 
ceedings for  divorce  is  further  illustrated  by 
the  filing  a  croas-complaint  praying  a  divorce 
on  the  ground  of  the  plaintiff's  cruelty.     De- 


rendered  the  pleading  materially  defective, 
it  could  not  be  helped  out  by  averments  in 
other  pleadings  in  the  cause:  Coalthurst  v.  Coul- 
thurst,  58  Cal'.  239. 

Grounds  of  divorce. — In  alleging  adidtery 
of  the  defendant,  it  should  be  charged  with 
reasonable  certainty  as  to  time  and  place,  so 
that  the  defen<lant  may  be  prepared  to  meet  it: 
Conant  v.  Conant,  10  Cal.  249;  to  allege  adul- 
tery committed  "at  the  city  of  San  I'rancisco, 
at  divers  times  with  jiersons  to  tlie  ])laintiflf 
unknown,"  is  demurrable,  but  an  ol)jcclion 
waived  by  not  demurring:  Id.  And  sec  Stew- 
art on  Mar.  &  Div.,  sec.  244. 

Where  the  application  for  divorce  is  made 
on  tho  ground  of  willful  neglect,  it  w  ill  not  ba 
sufficient  to  allege  simply  "  willful  neglect,"  as 
section  105  of  the  Civil  Code  contains  a  state- 
ment of  two  sets  of  facts  diffei'ing  from  each 
other  included  in  that  expression,  and  the  use 
of  this  general  term  does  not,  therefore,  inform 
the  defendant  of  the  ultimate  facts  on  which  tho 
plaintiff  relies:  Devoc  v.  Devoe,  51  Cal.  543. 
Such  a  complaint  would  be  bad  on  general  de- 
murrer: Id.  If  the  willful  neglect  urgeil  is  the 
failure  of  the  husband  to  provide  necessaries, 
he  having  the  ability  to  do  so,  it  must  ailirm- 
atively  appear  in  the  complaint  that  ho  was 
the  owner  of  sufficient  property  to  ]jrovide  the 
necessaries  of  life  and  neglected  so  to  do: 
Washburn  v.   Washburn,  9  Cal.  470. 

Community  propfrfy. — In  tlie  absence  of  an 
allegation  in  the  complaint  that  there  is  com- 
munity property,  the  presumption  would  be 
that  there  is  none:  Knshaw  v.  Kashaiv,  3  Cal. 
312;  and  see  Dije  v.  Dye,  11  Id.  10.3.  It  is 
proper  to  declare  in  what  the  common  property 


fendant  pleaded  the  cruelty,  but  omitted  to    consists,   and   its  value:  Kashaw  v.   Kasliaw, 
allege  marriage  and  residence      The  omission    supra.     An  objection  that    such   community 

32 


Title  I,  Ciiap.  IT.] 


DIVOHCE. 


§§  D3,  94 


property  is  not  sufficiently  described  must  be 
raised  by  demurrer  or  it  will  be  waived:  Gim- 
my  V.  Glmmii,  22  Cal.  033. 

Demurrer. — While  the  design  of  the  code  is 
to  prevent  co'lusive  divorces  (see  sec.  130),  and 
requires  proof  of  the  facts  essential  to  warrant 
«,  decree,  yet  there  are  some  facts  not  going  to 
the  fjravameii  of  the  action,  a  faulty  pleading 
of  which  must  bo  objected  to  by  demurrer  or 
the  objection  will  be  deemed  waived.  For 
example,  an  insuliicient  description  of  alleged 
community  property:  Gimvvj  v.  Gimrny,  22 
Cal.  C33.  So  also  the  insuliicient  pleading  of 
matters  vital  to  the  action  may  be  waived,  if 
the  facts  themselves  are  alleged,  and  the  fault 
is  in  the  manner  only  of  setting  them  out. 
Thus  adultery  must  be  pleaded  wi.li  reasonable 
certainty  as  to  time  and  place,  but  if  these  speci- 
fications arc  not  made,  the  want  of  fullness  in 
this  particular  will  be  waived,  if  not  pointed 
out  by  demurrer:  Conanl  v.  Conant,  10  Id.  249. 

A  demurrer  interposed  generally  to  the 
whole  complaint,  -which  contains  more  than 
one  count,  will  be  overruled,  if  cither  count  is 
good:  Cassidy  v.  Cassldy,  G3  Cal.  352. 

Jury  trial. — The  constitutional  guaranty  in 
re;rard  to  the  right  to  trial  by  jury  applies  only 
to  those  cases  where  tliat  right  existed  at  com- 
mon law,  and  does  not  extend  to  divorce  causes: 
Cassidy  v.  Sullivan,  G4  Cal.  2G0. 

93.    Adulter]!  defined. 

Sec.  93.     Adultery  \s  the  voluntary  sexual  intercourse  of   a  married' persoa.- 
with  a  person  other  than  the  offender's  husband  or  wife. 


Findings:  See  generally  upon  this  topic, 
Code  Civ.  Pi'oc,  sees.  G31  et  seq.  The  (ind- 
iugs  nmst  respond  to  all  the  material  issues 
made  by  the  pleadings:  Cassidy  v.  Ca,isidy,  G3 
Cal.  352.  And  the  court  must  find  upon  the 
issue  raised  by  the  recriminatory  pleading:  Id. 
To  find  that  "all  the  material  allegations  set 
forth  in  iilaintiff's  complaint  are  sustained  and 
proved  by  the  evidence"  will  not  uphold  a 
judgment.  The  appellate  court  cannot  de- 
termine what  the  trial  court  deemed  "mate- 
rial:" Id. 

A  finding  that  the  defendant  has  been  guilty 
of  willful  neglect  by  failing  "to  provide  for 
the  plaintilTthe  common  necessaries  of  life,  ho 
having  the  ability  to-  do  so,"  is  not  responsive 
to  a  complaint  alleging  willful  neglect  in  not 
providing  the  common  necessaries  of  life  "by 
reason  of  profligacy  and  dissipation: "  Dtvoe  v. 
Devof,  51  Cal.  543. 

In  a  proceeding  for  divorce  on  the  ground  of 
haljitual  intemperance,  a  new  trial  will  be 
ordered  if  there  is  no  finding  that  the  habitual 
intemperance  continued  for  a  year:  Dunn  v. 
Duvv,  G2Cal.  176. 

AUmony:  See  sees.  136,  "pont,  et  seq. 

Community  property,  and  its  disposltiou.. 
imder  proceedings  for  divorce:  Sees.  HI,  /^os},. 
et  seq. 


Adultery  as  ground  for  divorce. — "Adul- 
tery i.j  almost  universally,  in  this  country,  a 
f  round  of  divorce  from  the  bond  of  matrimony, 
t  is  the  voluntary  sexual  intercourse  of  one  of 
the  married  parlies  with  a  j)erson  other  than 
the  husband  or  wife.  *  *  *  q^he  offense 
•which  leads  to  the  remedy  of  divorce  can,  of 
course,  he  committed  only  by  a  married  per- 
son; and  it  is  immaterial  whether  the  particeps 
crimiiits  is  married  or  single:"  1  Bishop  on 
Mar.  &  Div.,  sec.  703.  A  divorce  a  vinculo, 
though  adultery  be  fully  proved,  is  not 
granted  of  course  in  all  cases:  Williamson  v.  Will- 
iainson,  1  Johns.  Ch.  4S8.  If  it  was  committed 
by  a  wife  while  she  was  insane,  it  would  he  no 
ground  for  divorce  on  the  ajiplication  of  the 
husband:  H'rav  v.  Wray,  19  Ala.  522.  And  a 
wife  who  has  willfully  and  utterly  deserted  her 
husband  for  a  period  of  five  years,  without 
fault  on  his  part  during  that  time,  cannot  main- 
tain a  libel  for  divorce  against  him  on  account 
of  his  subsequent  adultery:  JIall  v.  IlaU,  4 
Allen,  31);  nor  can  the  adultery  of  a  wife,  com- 
mitted by  her  after  a  separation  caused  by  the 
default  of  her  husband,  avail  him  to  dissolve 
the  1  ouds  of  matrimony,  in  North  Carolina: 
Tew  v.  Tew,  80  N.  C.  31G;  and  in  the  same 
state  it  was  held  that  where  a  husband  and 
wife  arc  living  in  a  voluntary  state  of  separa- 
tion, the  court  may  grant  a  divorce  from  bed 
and  board  for  the  cause  of  adultery  during 
such  separation,  but  in  no  case  would  they  de- 


cree a  divorce  a  vinculo  tinder  such  circum- 
stances  unless  she  alleged  and  proved,  on  the 
trial  of  issues  under  her  petition,  that  she  was 
compelled  to  such  separation  by  the  violent  or 
outrageous  conduct  of  her  husband,  in  which 
case  it  should  bo  deemed  that  he  separated 
himself  from  her:  Woody.  Wood,  5  Ired.  L.  G74; 
and  see  J\Ioss  v.  j\Ios.%  2  Id.  55.  And  where  the 
husband  had  absented  himself  for  more  than 
five  years  without  being  known  by  her  to  be 
living  within  that  time,  a  marriage  by  her, 
with  cohabitation  accordingly,  is  not,  under  the 
statute,  such  adultery  as  will  authorize  .a  divorce 
in  New  York:  Valleau  v.  Vallean,  5  Paige, 
207.  After  condonation  of  the  adultery  of  a 
husband,  if  he  should  be  convicted  of  a  felony, 
the  right  of  the  wife  to  sue  for  divorce  on  the 
ground  of  adultery  is  revived:  lloffmire  v. 
IJoffmire,  3  Edw.  Ch.  173.  And  where  a  ims- 
band  was  guilty  of  adultery,  but  had  been 
forgiven  for  years,  he  should  not  be  thereby 
compelled  to  submit,  without  redress,  to  the 
faithlessness  and  unrestrained  profligacy  of  his 
wife:  Jones  v.  Jones,  18  N.  J.  Eq.  33.  The 
plaintiff  in  an  action  for  divorce  on  the  ground 
of  adultery  may  bring  a  second  action  for  a 
divorce  for  subsequent  acts  of  adultery  with 
the  person  with  whom  the  defendant  is  charged 
with  adultery  in  the  first  action;  althougii  he 
might  have  resorted  to  a  supplementary  com- 
plaint in  the  first  action,  he  is  not  compelled  to 
do  so:  Cordier  v.  Cordier,  2G  How.  Pr.  187. 


94.   Extreme  cruelty,  what. 

Sec.  94.  Extreme  cruelty  is  the  infliction  of  grievous  bodily  injury  or  griev^ 
ous  mental  suffering  upon  the  other  by  one  partj'  to  the  marriage. 

Cruelty  as  a  ground  for  divorce  is  such  safety  of  the  other,  or  creates  in  the  other  such 
conduct  in  one  of  the  married  parties  as  rcndcis  rcasunahle  ai>prcliensions  of  bodily  hann  aa 
further  cohahitation  dangerous  to  the  physical    naturally  interfere  with  the  discharge  of  maritai 

Civ.  Code— 3  33 


g§  Ob,  OG 


PERSONAL  RELATIONS. 


[t>iT.  I,  Part  ni. 


duties:  Pomchon  v.  PowrUoj},  22  Cal.  3,"S.  The 
■  exti'ciiio  cnicltj' in  our  divorce  act  nicciiig  the 
eanio  thiii;^  us  tho  -sfeviici  or  cruelty  of  tlio 
,  ICngHsh  C'cch-s:.isti':al  couita;  it  I'lay  be  <le!:iie:l 
generally  to  lie  Miy  conduct  in  one  of  tho 
married  parties  Avhicii  furnishes  reasonable 
apjjichensiou  (hat  the  continuance  of  tho  co- 


more  than  one  occasion  inflicts  violence  wpon 
the  person  of  liis  wife  so  that  the  marks  thereof 
remain,  he  U  guilty  of  extreme  cruelty,  which 
is  not  excused  by  the  fact  that  his  v.ife  has  a 
bad  temper  and  fecokls  the  huslxand:  Eilrw 
mullcr  \\  EklfiimidinU  *'>1  Cal.  ?>G4;  butadivorce 
for  this  ground  is  not  generally  gr.mtcd  wlien 


habitation  would  1)C  atttnilcd  witli  bodily  li;irin     the  cruelty  is  caused  by  the  misconduct  of  tho 


to  tlie  oLlicr;  courts  grant  divorces  in  such  canes 
uot  to  jiunisii  an  ofTcnse  already  committed,  but 
to  relieve  tiic  complaining  party  of  apprehended 
danger,  and  the  divorce  may  follow  even  in  the 
absence  of  any  actual  violence;  but  if  tlicre  has 
been  actual  violence,  it  must  be  attended  with 
.  danger  to  life,  limb,  or  iiealLh,  or  be  sucli  as  to 
,  cause  reasonable  apprehension  of  future  dan/Tcr: 
Monin  V.  Morris,  14  Id.  70.  Any  conduct 
BuUiciently  aggravated  to  produce  ill  health  or 


v.'ifo  who  applies:  Johnmn  v.  John-on,  11  Id, 
450.  Sec,  as  to  misconduct  of  pUiiutifT  as  a 
provocation  of  tho  defendant's  coaduct,  the 
note  to  Pierce  v.  Pierce,  1.5  Am.  Dec.  210. 
Adultery  or  habitual  int<.'mperancu  do  not  in  a 
legal  sense  constitute  extreme  cruelty,  but  the 
lattcrisdifTurcnt  from  any  other  cause  of  divorce, 
and  constitutes  a  senarate  and  distinct  cause  of 
action:  llaslcll  v.  )lnsl:eU,  54  Cal.  232,  The 
acts  of  cruelty  need  not  bo  persistent,  nor  be- 


bodily  pain,  though  operating  primarily  upon  come  a  fixed  habit,  before  relief  and  safety  can 

the  mind  only,  is  legal  cruelty;  and  where  it  be  had  by  divorce:  Mahone  v,  MaJione,  19  Id. 

appears  that  the  defendant  was  in  the  habit  of  G2G;  as  to  the  sulBciency  of  evidence  to  estab- 

using  towards  his  wife  vile  and  abusive  Ian-  lish  extremo  cruelty,  see  Mai  thai  v,  MaUhai, 

.guage,  falaely  charging  her  with  adultery,  and  49  Id.  90,  and  Christie  v.  Christie,  53  Id.  26. 

that   slie  was  a   weak,  nervous   woman,    and  Tiie  subject  of  cruelty  as  a  ground  of  divorce, 

modest  in  her  disposition,  and  that  the  conduct  and  the  cases,  English  and  American,  are  cited 

of  the  defendant  caused  her  much  mental  suljfcr-  in  a  note  to  Poor  v.  Poor,  29  Am.  Dec.  0^14. 


ing,  producing  fits  of  illness,  and  threatening 
permanent  injury  to  her  health,  she  is  entitled 
to  a  divorce  on  the  ground  of  extreme  cruelty: 
.Povchonv.  PoweUo?),  22  Id.  ?,')S;  Kelhi  v.  Kelly, 
1  West  Coast  Rep.  143.     And  if  a  husband  on 


It  is  not  extreme  cruelty  on  the  part  of  the 
wife  to  abandon  her  husband,  go  to  Germany 
for  the  purpose  of  studying  painting,  and  re- 
m.r.in  away  four  months:  Smith  v.  Smiih,  62 
Cal,  466. 


85.   Desertion,  ichaf. 

Sec.  95,  "Willful  desertion  is  the  voluntary  separation  of  one  of  the  married 
parties  from  the  other  with  intent  to  desert. 

Willful   desertion.  —Desertion    consists  of    separated  from  her  husband  while  proceedings, 

at  his  instance,  were  pending  against  her  in 


..an  actual  cessation  of  matrimonial  cohabita- 
tion between  the  parties,  coupled  with  the  in- 
tent  to   desert  in   the  mind  of  the  ofTending 

■party:  /lardeiibc)-;/ v.  Jlardcnherr/,  14  Cal.  034; 
Morrison  v.  Morrison,  20  Id.  431;  Latham 
v.  Lctlham,  30  Gratt,   307;   Stein   v.  Stein,   5 

'  Col,  55.  To  establish  it,  three  things  must 
be  provcil:  I.  Cessation  of  cohabitation;  2. 
An  intention  in   the   mind   of  the   defendant 


this  court  for  a  divorce  on  tho  ground  of  adul- 
tery: Marsh  V.  Marsh,  14  N.  J.  Eq.  315.  It 
was  held  in  RiLckman  v.  Ruchnnn,  58  How.  Pr. 
273,  that  to  justify  a  judgment  for  a  limited 
divorce  on  the  ground  of  abandonment,  such 
circumstances  must  appear  as  manifest  a  set- 
tled and  determined  purpose  in  the  husband 
to  withdraw  from   the  wife  permanently  his 


to   desert;    and    3.    That    the    desertion    was     society  and  jirotection,  and  to  withhold  from 

■  against  the  will  of  the  complainant:  AVr^r'/i^v.     '         '  "      "  -     - 
Ser'jrut,  33  N.  J.   Eq.  204.     "  Willfurdescr- 
tlon "  signifjvos   an   intentional  desertion,   and 
does  not  imply  malice:  Bniheit  x.  Dcnlert,  32 

•  Cal.  4G7.  And  to  constitute  desertion  on  her 
part,  she  must  absent  herself  from  her  hus- 
band of  her  own  accord,  without  his  consent, 

■  and  against  his  will:  Moorvs  v.  Moores,  10 
N.  J.  Eq.  275;  Jenninrjs  v.  Jemriiii/s,  1.3  Id, 
38;  McCormich  v.  McCormich,  19  Wis.  172; 
and  he  could  not  claim  a  divorce  where 
during  the  period  of  separation  he  has  re- 
mitted his  wife  not  less  than  forty  dollars 
each  month:  liaUton's  Appeal,  93  Pa.  St.  133. 
And  a  wife   living  apart   from   her   husband 


her  the  means  necessary  for  her  support,  but 
th.e  intention  to  desert  will  be  presumed  from 
the  proof  of  the  fact  of  prolonged  abandon- 
ment without  apparent  cause:  Morrison  v. 
Morrison,  20  Cal.  431.  And  it  is  material 
■nliat  were  the  circumstances  attending  the 
separation,  if  the  wife  is  in  no  manner  charge- 
able with  it:  Pesch  v.  Besch,  27  Tex.  .390.  The 
evidence  fails  to  establish  a  ground  for  divoz'ce 
on  the  ground  of  desertion,  where  it  shows  that 
the  parties  had  lived  separate  for  four  yeai-s — 
the  plaintifT  at  the  home  of  her  parents;  that 
the  defendant  ha-d  at  various  intervals  con- 
tributed one  hundred  and  fifty-three  dollars 
in  money,  and  other  supplies  from  the  store, 


under  a  judgment  requiring  him  to  pay  her  a  for  the  support  of  the  plaintilT,  and  that  the 

monthly  allowance  for  her  separate  maintenance  plaintifT  had  never  applied  for  anything  fur- 

isnot  guilty  of  desertion:  fVeldv.  Weld,  27  Jlinn.  ther:  Christie  v.  Christie,  53  Cal.  26. 
330.     Nor  would  she  be  where  she  voluntarily 

'98.    Desertion,  how  manifested. 

Sec.  96.  Persistent  refusal  to  have  reasonable  matrimonial  intercourse  as 
husband  and  wife,  when  health  or  physical  condition  does  not  make  such 
refusal  reasonably  necessary,  or  the  refusal  of  either  party  to  dwell  in  the  same 
house  with  the  other  party,  when  there  is  no  just  cause  for  such  refusal,  ia 
desertion. 


Title  I,  Chap.  II.] 


DIVOr.CE. 


§§  07-100 


Refusing  matrimonial  intercourse. — A  re- 
fusal witliout  cause  to  occupy  her  husband's 
bed  on  the  marriage  ni'^lit,  and  leaving'  liis 
house  next  morning  without  the  intention  of 
returning,  constitutes  desertion:  /'ili/rhn  v. 
Pilrjiim,  57  Iowa,  1^70;  but  where  a  husband 
and  wife  have  never  lived  together,  and  the 
wife  evinces  a  strong  disinclination  to  live  with 
her  huiband  at  all  and  repulses  his  advances 
towanls  a  reconciliation,  and  there  is  a  con- 
sequent separation,  tiie  liusband  is  not  guilty 
of  desertion:  Iicece  v.  I'eece,  34  N.  J.  Eq.  32, 


Actual  cessation  of  cohabitation,  however,  be- 
tween the  parties  for  one  year,  which  is  inten- 
tional on  the  jiart  of  the  wife,  and  without 
reasonable  cause,  entitles  the  husband  to  a 
divorce,  though  she  has  during  the  year  visited 
his  house  to  look  after  his  children,  and  while 
there  engaged  in  domestic  duties:  J'ie  v.  Hie, 
34  Ark.  37.  But  in  Massachusetts,  refusal  of 
sexual  intercourse  for  five  years  consecutively, 
although  not  justified  by  considerations  of 
health,  is  not  "desertion:"  Southwkk  v.  South' 
wick,  07  Mass.  327. 


97.  In  case  of  stratagem  or  fraud,  who  commits  desertion. 

Sec.  97.  When  one  party  is  induced,  by  the  stratagem  or  fraud  of  the  other 
party,  to  leave  the  family  dwelling-place,  or  to  be  absent,  and  during  such 
absence  the  offending  party  departs  with  intent  to  desert  the  other,  it  is  deser- 
tion by  the  party  committing  the  stratagem  or  fraud,  and  not  by  the  other. 

98.  In  case  of  cruelty,  where  one  parly  leaves  the  other,  who  commits  desertion. 
Sec.  98.     Departure  or  absence  of  one  party  from  the  family  dwelling-place, 

caused  by  cruelty  or  by  threats  of  bodily  harm  from  which  danger  would  be 

reasonably  apprehended  from  the  other,  is  not  desertion  by  the  absent  party, 

but  it  is  desertion  by  the  other  party. 

Cruelty  driving  from  the  home. — If  a  hus- 
band drives  his  wife  away,  or  treats  her  so 
brutally  as  to  compel  her  to  Oee  for  safety,  or  is 
80  cruel  and  maligant  towards  her  as  to  show 
that  he  means  to  force  her  from  his  home, 
thougli  she  leaves  the  matrimonial  mansion,  he 
in  law  deserts  her:  SLoaii  v.  Skean,  33  N.  J. 
Eq.  14S;  and  compelling  her  by  cruelty  to 
leave  him  is  as  much  an  abandonment  as  ac- 
tual desertion  on  his  part:  Lcveritij  v.  Lever- 
ing, IG  Md.  213.  And  it  is  in  accordance  with 
the  soundest  principles  of  public  policy  and  of 
morclitj",  that  a  wife  while  living  in  a  state  of 
separation  from  her  husband,  in  silent  submis- 
sion to  her  wrongs,  shall  not  be  debarred  liy  any 
lapse  of  time  from  the  protection  to  which  s!ie 
otherwise  would  be  entithd  whenever  the  hus- 
band shall  disturb  her  peace  by  an  attempted 


exercise  of  his  marital  rights:  Cummins  v.  Cum- 
mins, 15  N.  J.  Eq.  138.  But  although  a  wife 
leaves  her  husband's  house  through  his  fault,  yet 
if  he  afterwards  sincerely  solicits  her  to  return, 
and  she  deliberately  and  persistently  refuses  to 
do  so,  her  conduct  constitutes  desertion,  within 
the  meaning  of  the  New  Jersey  divorce  act: 
Hooper  V.  Hooper,  34  Id.  93.  And  in 
some  states  it  has  been  held  that  in  a  suit  for 
divorce,  the  desertion  of  one  party,  caused  by 
and  justified  by  the  misconduct  of  the  other,  is 
not  the  desertion  of  the  other:  Fern  v.  Feva, 
OS  Mass.  155;  Pidrje  v.  Pidye,  3  Met.  257;  Jles- 
ter  V.  Hester,  Wright,  210. 

The  code  commissioners  say  of  this  section 
that  it  "is  intended  to  settle  a  f|uestion  dis- 
cussed as  doubtful  in  Bishop  on  Mar.  &  Div., 
sees.  787,  791,  794." 


99.    Separation  by  consent  not  desertion. 

Sec.  99.     Separation  by  consent,  with  or  without  the  understanding  that  one 
of  the  parties  will  apply  for  a  divorce,  is  not  desertion. 


Separation  by  consent  is  not  a  desertion 
by  cither  of  the  parties:  Benkert  v.  Beii1:ert,  32 
Cal.  407;  McGoicen  v.  MrUoiceii,  52  Tex.  657, 
606;  Cox  V.  Cox,  35  JNlich.  4G1 ;  Pudd  v.  Hudd, 
33  Id.  101;  McCormickw  McCormick,  19  Wis. 
172;  Latham  v.  Latham,  30  Gratt.  307;  Simp- 
son V.  Simpnon,  31  Mo.  24;  Hanlinson  v.  Haiilc- 
inson,  33  N.  J.  Eq.  66.  Nor  need  the  consent 
be  expressed:  it  may  be  inferred  from  conduct: 
Oral)  V.  Gray,  15  Ala.  779,  784;  (Jilliuwater  v. 


Oillinwater,  28  Mo.  60;  as  where  a  husband 
acts  as  though  he  wished  his  wife  would  remain 
away  long  enough  to  make  it  a  ground  for 
divorce:  Cornish  v.  Cornish,  23  N.  J.  Eq.  208. 
And  compare  sec.  113,  po.it. 

The  absccce  of  any  understanding  in  regard 
to  getting  a  divorce  makes  no  difTereuce:  Benkert 
V.  Benkert,  32  Cal.  467. 

Consent  revocable:  See  infra,  sec.  101. 


100.   Separation^  when  becomes  desertion. 

Sec  100.  Absence  or  separation,  proper  in  itself,  becomes  desertion  when- 
ever the  intent  to  desert  is  fixed  during  such  absence  or  separation.  [Amend' 
ment,  approved  March  30,  1874;  Amendments  1873-4,  189;  look  effect  July  1, 
1874.1 

Intent  to  desert  is  an  essential  element  of 
desertion,  and  will  turn  an  alwence,  proper  in 
itself,  into  desertion  when  the  intent  is  fixed: 


Peed  V.   Peed,  Wright,  224;   see  Stewart  oo 
Mar.  &  Div.,  sec.  254. 


35 


§3  101-108  PERSONAL  RELATIONS.  [Div.  I,  Pakt  III, 

101.  Consent  to  separate  revocable. 

Sec.  101,  Consent  to  a  separation  is  a  revocable  act,  and  if  one  of  the  parties 
afterwards,  in  good  faith,  seeks  a  reconciliation  and  restoration,  but  the  other 
refuses  it,  such  refusal  is  desertion. 

Consent  revocable. — The  consent  to  a  sep-  Id.  .3G3.  And  if  the  other  party  refuses  to 
arai'ion  h  rev  ocaUlo :  Bndrrt  V.  Ben  Ice  rf,  ^2  CclL  renew  cohabitation,  it  is  desertion  hy  him: 
467;  Crow  v.  Crow,  2.')  Ala.  58.3;  J/ankinson  v.  llnnk'maon  v.  Ilankinson,  supra;  McAllister  v. 
JIankinson,  .33  N.  J.  Eq.  CG;  Schanck  wSchanck,    McAllister,  10  Heisk.  345. 

102.  Desertion,  how  cured. 

Sec.  102,     If  one  party  deserts  the  other,  and  before  the  expiration  of  the 

Btatutory  period  required  to  make  the  desertion  a  cause  of  divorce,  returns  and 

offers  in  good  faith  to  fulfill  the  marriage  contract,  and  solicits  condonation, 

the  desertion  is  cured.     If  the  other  party  refuse  such  offer  and  condonation, 

the  refusal  shall  be  deemed  and  treated  as  desertion  by  such  party  from  the 

time  of  refusal.     [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 

190;  tooh  effect  July  1,  1874.] 

Offer  to  return  liy  the  deserting  party,  after    accepted,  nor  will  it  defeat  the  action  for  di- 
tho  expiration  qf  the  statutoi-y  time  making  tiie     vorce:  Brnkert  v.  Benkert,  32  Cal.  4G7. 
absence  a  ground   for  divorce,    need   not   be 

103.  Wife  must  abide  by  husband's  selection  of  home,  or  it  is  desertion  on  her  part. 
Sec.  103.     The  husband  may  choose  any  reasonable  place  or  mode  of  living, 

and  if  the  wife  does  not  conform  thereto,  it  is  desertion. 

Husband  may  fix  residence:  See  the  Ilanlenberg,  14  Cal,  654;  same  principle,  sec, 
authorities   colleotcd   in   Stewart  on   Mar,    &     I.IG,  pout. 

Div.,  sees.  221,  2oV,  and  tlic  discussion  in  2  Soparato  domicile  for  purposes  of 
Bishop  on  Mar.  &  Div,,  sec,  124;  JJardenberj  v,     divorce  proceeding:  See  infra,  sec,  129, 

104.  If  the  place  is  unfit,  and  ivife  refuses  to  conform,  it  is  desertion  by  the  /ms- 
bnnd. 

Sec  104.  If  the  place  or  mode  of  living  selected  by  the  husband  is  un- 
reasonable and  grossly  unfit,  and  the  wife  does  not  conform  thereto,  it  is 
desertion  on  the  part  of  the  husband  from  the  time  her  reasonable  objections 
are  made  known  to  him. 

See  reference  to  text-books  in  note  to  last  section. 

105.  Willful  neylect,  what. 

Sec.  105.     "Willful  neglect  is  the  neglect  of  the  husband  to  provide  for  hig 

■wife  the  common  necessaries  of  life,  he  having  the  ability  to  do  so;  or  it  is  the 
failure  to  do  so  by  reason  of  idleness,  profligacy,  or  dissipation. 

"Willful  neglect, — This  section  makes  two  is  not  willful  neglect:    U'axhburn  v,  Washburn, 

distinct  classes  of  conduct  constituting  willful  9  Cal.  475;  Rjcraft  v,  Rijcraft,  42  Id.  444.   The 

neglect.     If  the  complaint  declares  on  one  and  theory  of  these  cases  is  that  the  earnings  (»f  the 

the  court  finds  tlie  other,  the  ilecree  cannot  be  wife  are  community  property,  that  the  luisband 

supported:  Dcvoe  v.  Devoe,  51  Cal,  543.  has  control  of  the  com  nunity  property,   and 

UavliKj  abiliti/  to  provide  necessaries,  as  used  that  his  not  preventing  the  wife  from  using  her 

by  tlie  statute  prior  to  the  code,  one  similar  iu  earnings  for  her  own  maintenance  is  in  law  an 

this  pa.rticular  to  the  above  provision  refers  to  applicaaon  by  the  liusbaud  of  the  same  for  her 

the  possession  by  the  husband  of  the  means  in  support,  and  therefore  not  neglect.     This  rea- 

propcrty  to  provide  such  necessaries,  and  not  soniag  would   lose  its   most   important  factor 

to  his  capacity  of  acquiring  such  means  by  where  the  parties  are  living  sejjarate:  Sec  sec. 

labor:    Waxhburn  v.  IVofihbiu-n,  9  Cal.  475.  163,  infra;  for  then  the  earnings  would  be  tho 

If  (he  wife\f  lamimji  are  sufficient  for  her  separate  property  of  t!ie  wife,  giving  therefore 

support,  and  the  husband  allows  her  to  apply  no   opportunity   for   this   constructive  control 

them  to  that  purpose,  his  refusal  to  contribute  ovej*  them  by  the  husband. 

106.  Ilabitual  intemperance,  what. 

Sec.  lOG.  Habitual  intemperance  is  that  degree  of  intemperance  from  the  use 
of  intoxicating  drinks  which  disqualifies  the  person  a  great  portion  of  the  time 
from  properly  attending  to  business,  or  which  would  reasonably  inflict  a  course 
of  great  mental  anguish  upon  an  innocent  party. 

36 


Title  I,  Chap.  II.]  DIVORCE.  §§  107-115 

Habitual  intemperance. — This  section  cov-  tion  94  in  regard  to  the  mental  suffering  occa- 
ers  two  classes  of  conduct,  each  of  which  will  Bioiied  hy  "extreme  cruelty;"  and  consult  //cw- 
constitute  habitual  intemperance.  The  first  ir/ v.  y/«4r//,  54  Cal.  2G2,  showing  that  intoxi- 
olass,  referring  to  the  inability  to  attend  to  busi-  cation  of  defcmlant  may  be  used  as  the  basis  of 
ness  hy  reason  of  intoxication,  has  thus  been  proceedinL,'s  for  divorce  on  the  ground  either  of 
defined:  "  If  there  is  a  fixed  habit  of  drinking  extreme  cruelty  or  of  liai)itual  intemperance, 
to  excess,  to  such  a  degree  as  to  disqualify  a  Sp<:aking  of  this  clause,  the  code  coumiission- 
person  from  attending  to  his  business  during  ers  say:  "The  lust  clause  of  the  section  is  new. 
the  principal  portion  of  the  time  usually  de-  It  speaks  for  itself.  The  presence  of  an  habit- 
voted  to  business,  it  is  habitual  intemperance,  ual  drunkard  at  home  casting  reproaches  and 
althougli  the  person  nuiy  at  intervals  be  in  a  indignities  on  his  wife  ought  to  be  a  better 
condition  to  attend  to  his  business  affairs:"  cause  of  divorce  than  being  drunk  at  his  place 
Mah  lie  V.  Mahone,   19  Cal.  626,  629.  of  business." 

The  mental  anguish  occasioned  by  the        Duration  of  intemperance:  See  next  sec- 

intemperance  of  the  party — compare  with  sec-  tion. 

107.    Habitual  intemperance  for  one  year. 

Sec.  107.  Willful  desertion,  willful  neglect,  or  habitual  intemperance  must 
continue  for  one  j'ear  before  either  is  a  ground  for  divorce. 

Duration  of  cause  for  divorce. — Formerly         If  there  is  no  finding  that  the  offense  contin- 
willful  desertion  was  requireil  to  continue  for    ued  fur  the  statutory  time — here  habitual  in- 
two  years  before  it  constituted  a  ground  for     temperance — the  judgment  will  be  reversed  oa 
divorce:  Conaiit  v.  Conant,  10  CaL  249;  Benkert    appeal:  Dunn  v.  Dunn,  62  Cal.  176. 
V.  Uenkert,  32  Id.  467. 

AKTICLE  III. 

CAUSES   FOE  DENYINQ   crVORCE. 

111.  Divorces  denied,  on  showing  what. 

Sec.  111.     Divorces  must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or, 

3.  Condonation;  or, 

4.  llecrimination;  or, 

5.  Limitation  and  lapse  of  timeu 

Connivance  defined:  Sees.  112,  113.  llecrimination  defined:  Sec  122. 

Collusion  defined:  Sec.  114.  Iiimitation  of  action;  Sees,  124  et  seq. 

Condonation  defined:  Sees.  115  et  seq. 

112.  Connivance,  what. 

Sec.  112.  Connivance  is  the  corrupt  consent  of  one  party  to  the  commission 
of  the  acts  of  the  other,  constituting  the  cause  of  divorce. 

Connivance. — A  very  concise  and  complete  defined  and  explained;  section  300,  in  which 
collection  of  cases  upon  the  various  questions  the  cpiestinn  of  the  necessity  of  pleailing  it  ia 
arising  out  of  this  defense  will  be  found  in  raised;  section  301,  discussiug  tiie  proof  of  tlio 
Stewart  on  Mar.  &  Div.,  in  the  following  sec-  defense.  In  2  Bishop  on  Mar.  &  Div.,  sees.  4- 
tious:  sections  293,  29S,  w.here  connivance  is    27,  is  au  able  discussion  of  this  subject. 

113.  Corrupt  consent,  how  manifested. 

Sec.  113.  Corrupt  consent  is  manifested  by  passive  permission,  with  intent 
to  connive  at  or  actively  procure  the  commission  of  the  acts  complained  of. 

114.  Collusion,  what. 

Sec.  114.  Collusion  is  an  agreement  between  husband  and  wife  that  one  of 
them  shall  commit,  or  appear  to  have  committed,  or  to  be  represented  in  court 
as  having  committed,  acts  constituting  a  cause  of  divorce,  for  the  purpose  of 
enabling  the  other  to  obtain  a  divorce. 

Collusion  ditfers  from  connivance  in  that  be  found  to  he  collected  in  Stew.art  on  Mar.  & 
the  fonner  is  founded  upon  the  agreement  of  Div. ,  sees.  .302  et  seq.;  see  also  2  Bishop  on  Mar. 
the  parties  to  do  that  which  will  enable  one  of  &  Div.,  sees.  2S  et  seq.,  for  a  treatment  of  this 
them  to  procure  a  divorce.     The  decisions  will     branch  of  the  law  of  divorce. 

115.  Condonation,  what. 

Sec.  1 15.  Condonation  is  the  conditional  forgiveness  of  a  matrimonial  offense 
constituting  a  cause  of  divorce. 

37 


§§  116-122  PERSONAL  RELATIONS.  [Drv.  I,  Part  IH, 

Condonation  is  a    conditional    forgive-  Condonation  does  not  wipe  out  tin;  ofTe  ise  con- 

ness.     Its  reipiisitea  are  stated  ill  tlio  succeed-  doned:  licidcrt  v.  AVw/.p/V,  32  Cal.  626. 
ing  sections,  in  liannony  witli  legal  principles        Revoking  condonation:  Sec.    121,  infra. 
settled    by  judicial   decision,  as  will   apjjear        Condonation  of  recriminatory  defanse; 

from  2  Bishop  on  Mar.  A.  Div.,  sees.  33  et  b&\.;  Sec.  123,  itost. 
and  Stewart  on  Mar.  &  Div.,  aecs.  307  et  seq. 

116.  Requisites  to  condonation. 

Sec.  IIG.     The  following  requirements  are  necessary  to  condonation: 

1.  A  knowledge  on  the  part  of  the  condoner  of  the  facts  constituting  the 
cause  of  divorce; 

2.  Reconciliation  and  remission  of  the  offense  by  the  injured  party; 

3.  Restoration  of  the  offending  party  to  all  marital  rights. 

117.  Condonation  implies  what. 

Sec.  117.  Condonation  implies  a  condition  subsequent;  that  the  forgiving 
party  must  be  treated  with  conjugal  kindness. 

118.  Evidence  of  condonation. 

Sec.  118.  Where  the  cause  of  divorce  consists  of  a  course  of  offensive  con- 
duct, or  arises  in  case  of  cruelty  from  successive  acts  of  ill  treatment  which 
may,  aggregately,  constitute  the  offense,  cohabitation,  or  passive  endurance,  or 
conjugal  kindness,  shall  not  be  evidence  of  condonation  of  any  of  the  acts  con- 
stituting such  cause,  unless  accompanied  by  an  express  agreement  to  condone. 
\Ammdmmt,  approved  March  30,  1874;  Amendments  1873-4,  190;  took  effect 
July  1,  1874.] 

119.  Condonation,  when  can  he  made. 

Sec  119.  In  cases  mentioned  in  the  last  section,  condonation  can  be  made 
only  after  the  cause  of  divorce  has  become  complete,  as  to  the  acts  complained 
of.  [Am^'ndmeni,  approved  March  30, 1874;  Amendments  1873-4, 190;  took  effect 
July  1,  1874.] 

If20.    Concealment  of  facts  in  certain  cases  makes  condonation  void. 

Sec.  120.  A  fraudulent  concealment  by  the  condonee  of  facts  constituting  a 
different  cause  of  divorce  from  the  one  condoned,  and  existing  at  the  time  of 
condonation,  avoids  such  condonation. 

121.  Condonation,  how  revoked. 

Sec.  121.     Condonation  is  revoked  and  the  original  cause  of  divorce  revived: 

1.  When  the  condonee  commits  acts  constituting  a  like  or  other  cause  of 
divorce;  or, 

2.  When  the  condonee  is  guiltj'^of  great  conjugal  unkindness,  not  amounting 
to  a  cause  of  divorce,  but  sufficiently  habitual  and  gross  to  show  that  the  con- 
ditions of  condonation  had  not  been  accepted  in  good  faith,  or  not  fulfilled. 

Revoldng  condonation. — "As  to  subdivis-  judi,'e3  and  lawyers  relates  to  the  latter  [this] 
ion  2,  Mr.  Bishop,  above  cited  (2  Mar.  &  Div.,  branch  of  the  proposition.'  It  is  best  to  settle 
sec.  .'io),  says:  '  The  difference  of  opinion  among    the  question:"  Code  commissioners' note. 

122.  Recrimination,  what. 

Sec.  122.  Recrimination  is  a  showing  by  the  defendant  of  any  cause  of 
divorce  against  the  plaintiff,  in  bar  of  the  plaintiff's  cause  of  divorce. 

Recrimination "This  simple  section  set-        The  cross-complaint  setting  up  recrim- 

tles  many  eonflicLing  points  arising  from  the  inatory  matter  must  contain  allegations  of  all 
practice  of  leaving  with  the  courts  a  wide  dis-  facts  requisite  to  entitle  the  defendant  to  the 
cretion  as  to4what  degree  of  bad  conduct  or  relief  asked.  Therefore,  in  such  case,  both  res- 
vhat  degree  of  proof  of  causes  of  divorce  shall  ideiice  for  the  statutory  time  and  marriage 
Le  required  when  they  are  shown  in  recrimina-  must  bj  pleaded  by  the  cross-complainant: 
tion,  or  whether  unbko  causes  of  divorce  can  Cou^f hurst,  v.  Coul'hurx'^  58  Cal.  2.'>9. 
be  shown:  "  Code  conunissioners'  uote.  Defeudaut,    though    successful,    paying 

See  the  doctrine  of  recrimiiiatiun  discussed     alimony  to  plaint! if:  See  sec.  137,  note. 
ia  Conaiit  v.  Conant,  10  Cal.  249. 

38 


Title  I,  Chap.  II.]  DIVORCE.  §§  123-127 

123.  Condonation  as  a  recriminatory  defense. 

Sec.  123.  Condonation  of  a  cause  of  divorce,  shown  in  tlie  answer  as  a 
recriminatory  defense,  is  a  bar  to  such  defense,  unless  the  condonation  bo 
revoked,  as  provided  in  section  one  hundred  and  twenty-one,  or  two  years  have 
elapsed  after  the  condonation,  and  before  the  accruinj^  or  completion  of  the 

cause   of   divorce   against  which   the  recrimination   is  shown.     [Amendment, 

approved  3Iarck  30,  1874;  Amendments  1873-4,  190;  took  effect  July  1, 1874.] 

Condonation  of  recriminatory  defense.  In  proposing  their  amendment,  As-hich  evi- 
Theaboveamcmlment  certainly  does  not  clearly  dently  went  only  to  the  revocation  ol  the  con- 
express  what  must  have  been  intended  by  the  donation,  and  was  designed  to  make  the  section 
code  examiners.  The  history  of  the  section  is  in  this  particular  a  little  clearer,  the  cod© 
as  follows:  The  code  commissioners,  alive  to  the  examiners  overlooked  the  effect  that  such 
ditlicalties  of  the  effect  of  a  condonation  upon  change  in  the  language  would  have  on  the  last 
a  recriminatory  defense — dilEculties  which  they  clause,  whicli  they  altered  only  by  shortening 
said  would  he  elucidated  to  some  extent  by  the  period  of  time  to  elapse  since  the  condona- 
reading  2  Bishop  on  Mar.  &  Div.,  sees.  9(5-  tion.  It  cannot  be  possible  that  the  code 
100 — declared  that  "it  would  be  better  to  examiners  intended  to  say  that  a  condoned  de- 
have  some  rule,  even  if  it  some  times  works  a  fense  may  be  pleaded  if  two  years  have  elapsed 
hardshii),  than  to  have  confusion  arising  from  since  it  was  condoned.  Such  a  construction  ia 
deciding  each  case  upon  its  merits."  They  contrary  to  otlicr  provisions  of  the  code  (sees, 
therefore  proposed  this  section:  "  Condonation  124  et  seq.),  limiting  the  time  wlien  actions  for 
of  a  cause  of  divorce  shown  in  the  answer  as  a  divorce  may  be  brougiit,  and  in  effect  would  be 
recriminatory  defense  is  a  har  to  such  defense  saying  that  the  condoned  party  never  can  get 
when  the  coudonee  has  fully  performed  the  a  divorce  if  the  condoning  jiarty  will  hut  wait 
marital  duties,  and  is  without  reproach  since  two  years  from  the  condonation  before  commit- 
tlie  condonation ;  or  if  three  years  or  more  has  ting  the  act  which  otherwise  would  be  cause 
elai)sed  after  the  condonation  and  before  the  for  divorce. 

accruing  or  completion  of  the  cause  of  divorce  The  section  has  the  same  meaning  as  waa 

against   which   tlie   recrimination   is   sliown. "  boine   by   the   original    somewliat   differently 

In  oblier  words,  this  original  section  said  that  a  worded  section;  i.  e.,  a.  recriminatory  defense 

condoned  recriminatory  defense  was  not  a  bar  to  cannot  bo  set  up  as  bar  when  it  has  been  con- 

the action  if  the  condonation  had  not  been  re-  doned,  and  the   condonation  not  revoked,  or 

yoked;    and  that  if  three  years  had  elapsed  where  two  years  have  elapsed  since  the  ci;ndo- 

since  tiie  condonation,  before  the  accruing  of  nation  and  the  commission  of  the  offense  com- 

the  cause  of  divorce  sued  on,  the  condonation  plained  of  by  the  plaintiff, 
could  not  be  revoked. 

124.  Limitation  of  action  for  divorce. 
Sec.  124.     A  divorce  must  be  denied: 

1.  When  the  cause  is  adultery,  and  the  action  is  not  commenced  within  two 
years  after  the  commission  of  the  act  of  adultery,  or  after  its  discovery  by  the 
injured  party;  or, 

2.  "When  the  cause  is  conviction  of  felony,  and  the  action  is  not  commenced 
before  the  expiration  of  two  years  after  a  pardon,  or  the  termination  of  the 
period  of  sentence; 

3.  In  all  other  cases  when  there  is  an  unreasonable  lapse  of  time  before  the 
commencenjent  of  the  action.  [Amendmeid,  approved  March  30, 1S74;  Amend' 
meiiis  1873-4,  191;  took  effect  July  1,  1874.] 

125.  Lapse  of  time  establishes  certain  presumptions. 

Sec.  125.  Unreasonable  lapse  of  time  is  such  a  delay  in  commencing  the 
action  as  establishes  the  presumption  that  there  has  been  connivance,  collusion, 
or  condonation  of  the  offense,  or  full  acquiescence  in  the  same,  with  intent  to 
continue  the  maiTiage  relation  notwithstanding  the  commission  of  such  offense. 

See  Bishop  on  Mar.  &  Div.,  sec.  108. 

126     Presumptions  may  be  rebutted. 

Sec.  120.  The  presumptions  arising  from  lapse  of  time  may  be  rebutted  by  • 
showing  reasonable  grounds  for  the  delay  in  commencing  the  action. 

127.    Limitation  of  time. 

Seo.  127.  There  are  no  limitations  of  time  for  commencing  actions  for  ■ 
divorce,  except  such  as  are  contained  in  section  one  hundred  and  twenty-four.  . 

33 


Sg  128-I3t 


PERSONAL  Relations. 


[Div.  i.  Part  III, 


"  Before  the  adoption  of  this  code  there 
was  no  fipecifio  liinitation  in  divorce  cases. 
l^he  only  st.itnte  npon  the  subject  was  the  act 
of  1S50,  Stats.  1850,  p.  .'M3,  as  follows:  'An 
action  for  relief  not  hereinbefore  provided  for 
must  be  commenced  within  four  years  after 
tho  cause  of  action  shall  have  accrued.'  Tho 
New  York  civil  code  provides  four  yeai-s'  lim- 
itation in  cases  of  adultery.  Upon  a  careful 
examination  of  the  laws  of  the  dilFercnt  states 
upon  the  .subject,  it  appears  very  difficult  to 
establish  any  exact  rule  of  time,  however  de- 


sirable such  a  rf.Ie  might  be.  There  are  so 
many  instances  of  efforts  at  reformat'on — so 
much  waiting  and  ho[)ing  before  {iiiaily  at- 
tempting to  break,  judicially,  the  marriage  re- 
lation— that  any  arbitrary  rule  which  would 
force  the  party  to  commence  an  action  or  lose 
the  remedy  would  defeat  the  discharge  of  the 
most  Christian  duties  arising  from  the  relation, 
or  deprive  the  party  of  all  relief  when  all  efforts 
fail:  Peliew  v.  Pelli^W,  1  Sw.  &  Tr.  55.3;  also 
Matthews  v.  Matthews,  Id.  499:"  Code  commis- 
sioners' note. 


128.   Divorces  granted  when. 

Sko.  128.  A  divorce  must  not  be  grafted  unless  the  plaintiff  Las  been  a 
resident  of  tbe  state  for  six  mouths  next  ^preceding  the  commencement  of  the 
action. 


Residence  essential^  and  must  be  alleged 
and  proved:  See  antes  note  to  sec.  92.  To 
guard  against  fraud  upon  the  court,  it  is  requi- 
uite  that  tho  residence  be  not  temporary  merely 
and  taken  for  the  purpose  of  divorce:  Cross- 


man  v.  Grossman,  33  Ala.  486;  Way  v.  Way, 
04  111.  400;  WhUcomb  v.  WhUcom'i,  46  Iowa, 
4.37;  Serrall  v.  Scwall,  122  Mass.  150;  Datcher 
V.  Datclyr,  39  Wis.  051;  see  also  Stewart  on 
Mar.  &  Div.,  sec.  223. 


129.  Proof  of  actual  i-esidence  required — Presumptions  do  not  apply. 

Sec.  129.  In  actions  for  divorce,  the  presumption  of  law  that  the  domicile 
of  the  husband  is  the  domicile  of  the  wife  does  not  apply.  After  separation, 
each  may  have  a  separate  domicile,  depending  for  proof  upon  actual  residence, 
and  not  upon  legal  presumptions. 

"Wife  may  have  a  domicile,  for  the  pur-    fatt,  5  Cal.  280.     And  see  a  host  of  decisions 

E OSes  of  divorce  proceedings,  separate  from  her     collected  in  Stewart  on  Mar.  &  Div.,  sec.  221, 
usband,  and  may  bring  her  action  in  the  state     together  with  a  citation  of  English  decisiona 
■where  she  is  in  fact  domiciled:  Moffatt  v.  Mo/-     holding  diHex-eutly. 

130.  Divorce  not  granted  by  default,  etc. 

Sec.  130.  No  divorce  can  be  granted  upon  the  default  of  the  defendant,  or 
upon  the  uncorroborated  stafpineut,  r-dmission,  or  testimony  of  the  parties,  or 
upon  any  statement  or  finding  of  fact  made  by  a  referee;  but  the  court  must,  in 
addition  to  any  statement  or  finding  of  the  referee,  require  proof  of  the  facts 
alleged,  and  such  proof,  if  not  taken  before  the  court,  must  be  upon  written 
questions  and  answers.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4, 191;  took  efect  July  1, 1874.] 


Proof  requisite  for  divorce. — The  above 
eectiou  does  not  mean  that  admissions  and 
statements  of  the  parties  are  not  to  be  received 
ia  eviilcnce  in  divorce  jjroeeediugs,  but  simply 
prevents  granting  a  divorce  on  them  alone: 
Baker  v.  JJaLer,  13  Cal.  87;  Evans  v.  Evans,  41 
Id.  103.  Confessions  or  admissions  of  a  de- 
fendant are  admissible:  Id.  The  object  of  the 
rule  requiring  corroboration  of  defendant's  con- 
fession is  to  guard  against  collusion  *,  Baker  v. 


Baker,  supra.  For  examples  of  what  was 
deemed  sutiicient  corroboration,  see  Evans  v. 
Evans,  supra;  Matlhai  v.  Matthai,  49  Id.  90; 
Fuller  v.  Fuller,  17  Id.  005. 

Reference. — It  is  tho  duty  of  referees  in 
divorce  causes  simply  to  take,  not  to  pass  upon, 
the  testimony.  If  the  referee  find  any  fact, 
the  court  should  disregard  it  and  base  its  de- 
cree upon  testimony  alone:  Baker  v.  Baker,  10 
Cal.  527;  Benkert  v.  Benkerl,  32  Id.  467. 


ARTICLE  IV. 

GENERAL   PROVISIONS. 

136.  Relief  in  some  cases,  where  separation  denied. 

Sec.  13G.  Though  judgment  of  divorce  is  denied,  the  court  may,  in  an  action 
for  divorce,  provide  for  the  maintenance  of  the  wife  and  her  children,  or  any  of 
iliem,  by  the  husband. 

Alimony  generally:  See  next  section  and  note. 

137.  Expense  of  action  for  divorce. 

Sec  137.  When  an  action  for  divorce  is  pending,  the  court  may,  in  its  dis- 
-cretiou,  require  the  husband  to  pay,  as  alimony,  any  money  necessary  to  enable 

40 


,31.      interlocutory    Judgment.      In    actions    '<>f    <"™'«; 

l°e  "rnte^rnnarti^nf  must  t.oteupon  .e  entered 
a  co-rrnsly!  «  »  determines  that  the  d.vorce  on.^^J^  ^^ 
.ranted,  an  interlocutory  ^»^^-™  .J",',',  '„n  decide,  is 
"^Z  T.'L'rTZ  Cn:s"„  'nt'eriocutor,  Judgment 
r  rea'r  ^avT  taKen  wi.Mn  si.  montit,  ..tter  iu  en^^ry 
,„  tne  same  --".-^  ^  ^rt^elSL^cutory  /ud/ment, 
rSef  partrSn";«ve  tne  ri.Wt  to  ----;-»» 
Without  the  consent  of  the  other]  (In  effect  60  daj 
Ind  after  April  16.  1909.     Stats.  1909.  Chap.  G^.J     ^^^^^    ^^^^_ 


Title  1,-  Cuap.  Il] 


DIVORCE. 


§§  13S,  139 


the  Avife  to  snpjTort  herself  or  her  children,  or  to  prosecute  or  defend  the 
action.  Y/hen  the  husband  willfully  deserts  the  wife,  she  may,  without  apply- 
ing for^a  divorce,  maintain  in  the  superior  court  an  action  against  him  for  per- 
manent support  and  maintenance  of  herself,  or  of  herself  and  children.  During 
the  pendency  of  such  action  the  court  may,  in  its  discretion,  require  the  hus- 
band to  i^ay,  as  alimony,  any  money  necessaiy  for  the  prosecution  of  the  action, 
and  for  suj^port  and  maintenance,  and  executions  may  issue  therefor,  in  the 
discretion  of  the  court.  The  final  judgment  in  such  action  may  be  enforced  by 
the  court  by  such  order  or  orders  as,  in  its  discretion,  it  may  from  time  to  time 
deem  necessary,  and  such  order  or  orders  may  be  varied,  altered,  or  revoked  at 
the  discretion  of  the  court.  [Amendment,  approved  April  G,  1880;  Amendments 
1880,  4  {Ikin.  ed.  122);  took  effect  immediately.] 
The   original  Bectiou   contained   the   first    band's    fault,    he    may    be    compelled,    after 


Bentcuco  only 

Alimony. — The  power  to  decree  alimony 
falls  witliiii  the  general  powers  of  a  court  of 
equity.  It  exists  independent  of  statutory 
authority;  and  in  a  proper  case,  the  court  exer- 
cising this  original  and  inherent  power  may 
decree  alimony  to  the  wife  independently  of 
any  proceed  ng  for  a  divorce  or  separation: 
Gcdlaud  V.  (Jalland,  38  Cal.  2G5.  In  view  of 
this  decision,  the  provision  made  by  the  amend- 
ment or  1S7S  for  such  alimony  without  appli- 
cation for  divorce  doubtless  was  induced  by 
excess  of  caution.  The  amendment  of  187S  was 
altered  in  ISSO  simply  to  conform  the  reading 
of  the  section  to  the  new  constitution. 

The  court,  in  fixing  the  alimony,  may  re- 
gard the  earnings  of  the  husband  or  his  ability 
to  earn  money:  Eldenmuller  v.  Eideiimuller,  37 
Cal.  3G4.  And  the  payment  of  alimony  may 
be  decreed  whether  the  wife  is  plaintiff  or 
defendant:  Ev<rctt  v.  Everett,  52  Id.  383; 
althou;,'h  the  court  cannot  compel  the  husband, 
where  he  has  obtained  the  divorce,  to  pay  out 
of  his  separate  estate  moneys  for  her  sup- 
Id.     ^Yhere  the  divorce  is  for  the  hus- 


divorce,  to  provide  for  his  late  wiie's  future 
support:  Wilsoiiw  Wilson,  45  Id.  399,  and  see 
sec.  139,  iufra. 

Eisobedienoe  of  the  order  to  pay  ali- 
mony is  a  contempt  of  the  court,  and  may  be 
punished  by  imprisonment:  Ex  j>ai/e  Perkins, 
IS  Cal.  60;  Ex  ],art>'  Voltrdl,  59  Id.  417.  That 
the  husband  may  purge  himself  of  contempt  by 
showing  t'lat  he  is  unable  to  oiicy  the  order, 
and  that  his  inability  to  pay  the  sum  directed 
has  not  been  occasioned  by  his  own  act  for 
the  pui'pose  of  avoiding  payment:  Llalland  v. 
O'ldlaml,  44  Id.  475;  Ex  parte  Coltrc.'l,  59  Id. 
417.  The  question  of  aliility  to  comjily  with 
the  order  is  one  of  fact,  to  be  determined  by 
the  cour':  Ex  parte  Cottrdl,  supra. 

Counsel  fees. — The  alimony  provided  for 
by  this  section  includes  counsel  fee:  Ex  parte 
I'erLiiis,  IS  (.'al.  GO;  EidenmuUer  v.  Eidnnmdler, 
37  Id.  3G4;  Lowell  v.  Lowell,  55  Id.  31G,  where 
on  a  recriminatory  defense  made  out  the  de- 
fendant was  held  to  pay  cOunscd  fees  to 
plaintiff. 

Order  for  payment  of  alimony  appealable: 
See  Sharon  v.  Sharon,  6  West  Coast  Uep.  856. 


port: 

138.    Orders  reffpecting  custody  of  children. 

Sec  138.  In  an  action  for  divorce  the  court  may,  before  or  after  judgment, 
give  such  direction  for  the  custody,  care,  and  education  of  the  children  of  the 
marriage  as  may  seem  necessary  or  proper,  and  may  at  any  time  vacate  or 
modify  the  same. 


muller,  37  I<1.  364,  the  three  younger  children 
were  given  to  the  plaintiff,  the  mother,  and 
the  two  older  to  the  father. 

The  autiiorilies  on  the  many  questions  sug- 
gested by  this  section  are  collated  in  .Stewart 
on  Mar.  &  uiv.,  sees.  400-402.  And  tiic  princi- 
ples involved  are  treated  in  2  Bisliop  on  ^lar.  & 
Div.,  sees.  525-559. 

Exclusive  control  of  child  without  dl* 
vorce:  Sec.  199,  214. 

Awarding  custody  of  child,  considerations 
that  should  guide  the  court:  ISee  po  I,  sec.  246. 


Custody  of  children:  See  Wihon  v.  Wilxon, 
45  Cal.  399,  where  custody  of  child  was 
awarded  to  the  mother;  and  in  Wand  v.  Wand, 
14  Id.  512,  where  tl)e  wife  obtained  the  divorce 
on  the  ground  of  the  husband's  extreme 
cruelty,  the  mother  was  held  entitled  to  the 
custody  of  a  female  child  of  tender  years — the 
father  having  the  right  to  visit  it.  This  case 
furnishes  a  very  excellent  discussion  of  the 
subject.  See  Mdler  v.  Miller,  33  Id.  353,  where 
the  custody  of  the  children  was  awarded  to  the 
husband  on  a  decree  of  divorce  from  his  wife 
for   her  adultery.      In  EidenmuUer    v.  Eidcn- 

133.    Support  of  wife  and  children  on  divorce  or  fteparation  granted  to  wife. 

Sec  130.  Where  a  divorce  is  granted  for  an  offense  of  the  husband,  the  court 
may  compel  him  to  provide  for  the  maintenance  of  the  children  of  the  marriage, 
and  to  make  such  suitable  allowance  to  the  wife  for  her  support,  during  her  life, 
or  for  a  shorter  period,  as  the  court  may  deem  just,  having  regard  to  the  cir- 
cumstances of  the  parties  respectively;  and  the  court  may,  from  time  to  time, 
modify  its  orders  in  these  respects. 

41 


§§  140-146  PERSONAL  RELATIONS.  [Div.  I,  Part  HI, 

Alimony  •where  ■wife  in  fault. — Tn  Everett  beyond  that  directed  to  he  paid  by  the  jndg- 

▼.  Everett,  52  Cal.  383,  an  order  directing  the  ment  entered  in  the  action,  see  Ex  j^arte  Cot- 

husband,  on  granting  him  a  divorce  for  the  ex-  trcH,  59  Cal.  417. 

treme  cruelty  of  his  wife,  to  pay  her  monthly  That  the   appellate   court  may   lessen    the 

alimony,  was  set  aside,  the  supreme  court  say-  amount  of  tlie  monthly  installment  directed  by 

ing  there  was  no  authority  for  such  an  order.  the  lower  court  to  be  paid  to  the  respondent, 

Modifying  order  for  alimony. — That  tlie  see  Eid'-nmuUer  v.  EidenmuUer,  37  CaL   3G4. 

court   may  increase  the  amount  of    alimony  Compare  with  sec.  148. 

140.  Security  for  maintenance  and  alimony. 

Sec.  140.  The  court  may  require  the  husband  to  give  reasonable  security  for 
providing  maintenance  or  making  any  payments  required  under  the  provisions 
of  this  chapter,  and  may  enforce  the  same  by  the  appointment  of  a  receiver,  or 
by  any  other  remedy  applicable  to  the  case 

141.  Court  ahall  resort  to  what,  in  executing  certain  sections. 

Sec.  141.     In  executing  the  five  preceding  sections,  the  cotirfc  must  resort: 

1.  To  the  community  property;  then, 

2.  To  the  separate  property  of  the  husband, 

142.  If  wife  has  sufficient  for  her  support,  court  may  withhold  allowance. 

Sec.  142.  "When  the  wife  has  either  a  separate  estate,  or  there  is  community 
property  sufficient  to  give  her  alimony  or  a  proper  support,  the  court,  in  its  dis- 
cretion, may  withhold  any  allowance  to  her  out  of  the  separate  property  of  the 
husband. 

143.  Community  and  separate  property  may  be  subjected  to  support  and  educate 
children. 

Sec.  143.  The  community  property  and  the  separate  property  may  be  sub- 
jected to  the  support  and  education  of  the  children  in  such  proportions  as  the 
court  deems  just. 

144.  Legitimacy  of  issue. 

Sec  144.  When  a  divorce  is  granted  for  the  adultery  of  the  husband,  the 
legitimacy  of  children  of  the  marriage  begotten  of  the  wife  before  the  com- 
mencement of  the  action  is  not  affected. 

L3gitimacy  of  children;  See  generally,  sec  193,  post,  and  references  in  note  thereto.  See 
also  the  next  section. 

145.  Same. 

Sec  145.  "When  a  divorce  is  granted  for  the  adultery  of  the  wife,  the  legit- 
imacy of  children  begotten  of  her  before  the  commission  of  the  adultery  is  not 
affected;  but  the  legitimacy  of  other  children  of  the  wife  may  be  determined 
by  the  court  upon  the  evidence  in  the  case. 

Presiimption  of  legitimacy:  See  the  references  in  note  to  last  section. 

146.  Community  property  and  homestead,  how  disposed  of  on  divorce. 

Sec  14G.  In  case  of  the  dissolution  of  the  marriage  by  the  decree  of  a  court 
of  competent  jurisdiction,  the  commuity  property,  and  the  homestead,  shall 
be  assigned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of  adultery  or  extreme  cruelty,  the 
community  property  shall  be  assigned  to  the  respective  parties  in  such  propor- 
tions as  the  court,  from  all  the  facts  of  the  case  and  the  condition  of  the 
parties,  may  deem  just; 

2.  If  the  decree  be  rendered  on  any  other  ground  than  that  of  adultery  or 
extreme  cruelty,  the  community  property  shall  be  equally  divided  between  the 
parties; 

42 


Title  I,  Chap.  II.  ] 


DIVOKCE. 


§3  147,  148 


3.  If  a  homestead  lias  "been  selected  from  the  community  property,  it  may  be 
•assigned  to  the  innocent  party,  either  absolutely  or  for  a  limited  period,  sub- 
ject in  the  latter  case  to  the  future  disposition  of  the  court,  or  it  may,  in  the 
discretion  of  the  court,  be  divided,  or  be  sold  and  the  proceeds  divided; 

4.  If  a  homestead  has  been  selected  from  the  separate  property  of  either,  it 
shall  be  assigned  to  the  former  owner  of  such  property,  subject  to  the  power  of 
the  court  to  assign  it  for  a  limited  period  to  the  innocent  party.  \Amendine)it, 
approved  March  30,  1874;  AmendmenU  1873-4,  191;  took  effect  Juhj  1,  1874.] 

Dissolution  of  marriage. — Subd.  1.     Com-    ants  in  common  with  respect  to  it:  McLeran 


munili/  projtertij,  on  a  divorce  for  adal'ery,  may 
be  all  awardcil  to  tlic  innocent  party — in  tiiis 
case  to  the  liusb:ind:  Miller  v.  Miller,  3."J  Cal. 
353.  Aiul  the  first  and  t-ecoud  subdivisions  of 
this  section,  when  read  together,  give  rise  to  the 
inference,  and  it  was  accordiaijly  so  deci  led  in 
Ediivjer  v.  L\sliii;;cr,  47  Cal.  GJ,  l54,  tliat  if  a  di- 
vorce be  granted  on  tiie  ground  of  adultery  or 
extreme  cruelty,  "the  injured  party  is  to  re- 
ceive, as  a  general  rule,  more  than  one  half  of 
the  property,  and  as  much  more  as  the  court 
shall  deem  just." 

In  Eid'.nmuUer  v.  Eidenmuller,  37  Cal.  3G4, 
the  bulk  of  the  community  projierty,  here 
the  house  and  furniture,  were  awarded  to  the 
plaintilT,  ami  a  horse  and  bugj?y  to  the  defend- 
ant, a  phj'sician,  whose  cruelty  toward  plaintiff 
was  ihe  cause  for  divorce. 

Where  the  community  property  is  awarded 
to  the  parties  equally,  they  thence  become  ten- 


neiiton,  31  Cal.  20. 

Subd.  3  and  4.  Homestead  on  a  decree  of 
divorce  when  declared  ou  the  community  prop- 
erty may  be  either  partitioned  or  set  apart  to 
one  of  the  parties  as  common  property:  Oimmy 
V.  Doane,  20  Cal.  G35.  Where  the  homestead 
is  i:artitioned  between  the  husband  and  wife  on 
a  divorce,  the  land  loses  its  homestead  charac- 
ter, and  may  be  seized  on  execution:  Shoemake 
V.  Ckalj'unt,  Al  Cal.  432. 

But  whether  or  not  the  property  is  a  home- 
stead is  a  question  which  tiie  parties  may  liti- 
gate in  the  divorce  proceeding:  Elmore  v.  El- 
more, 10  Cal.  224;  Loioeil  v.  Lou-e'l,  oo  Id.  316. 
It  is  not  necessary,  however,  to  o:ie's  right  to 
have  the  homestead  set  apart  tn  actually  pray 
therefor,  if  the  existence  of  sucli  homestead  is 
alleged  in  the  complaint:  Gimmy  v.  Gimmy, 
22  Cal.  633. 

Discretion  of  court:  See  sec.  148,  and  note. 


147.  Order  of  court  for  disposition  of  property. 

Sec.  147.     The  court,  in  rendering  a  decree  of  divorce,  must  make  such 

order  for  the  disposition  of  the  community  property,  and  of  the  homestead,  as 

in  this  chapter  provided,  and  whenever  necessary  for  that  pui-pose,  may  order 

a  partition  or  sale  of  the  property'  and  a  division  or  other  disposition  of  the 

proceeds.     [Amendment,  approved  March  30,   1874;  Ameiidmeuts  1873-4,  192; 

took  effect  July  1,  1874.] 

See  note  to  next  section.  Miller,  33  Cal.  353.     But  a  decree  of  divorce 
If    tlie   divorce   is   granted    because  of  simply  for  the  cause  of  adultery  do-is  not  do- 
adultery,  tlie  court  may  award  all  the  com-  privc  the  guilty  party  of  his  i:iterest  in  tlie  com- 
mon property  to  the  innocent  party:  Miller  v.  munity  property:  Godey  v.   Godeij,  39  Id.  157. 

148.  Order  subject  to  revision  on  appeal. 

Skc.  148.  The  disposition  of  the  community  property,  and  of  the  home- 
stead, as  above  provided,  is  subject  to  revision  on  appeal  in  all  particulars, 
includiug  those  which  are  stated  to  be  in  the  discretion  of  the  court.  [Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  192;  took  effect  July  1, 
1874.] 


Discretion  reviewable. — The  action  of  the 
court  in  dispo>^ing  of  the  community  property 
or  homestead  is  reviewable  on  appeal,  and  if  it 
has  not  awarded  a  sulliciently  large  portion  uf 
the  same  to  the  plaintiflf,  the  appellate  court 
will  increase  it:  EsUiir/er  v.  E4iiifjer,  47  Cal. 
62;  Brown  v.  Brown,  60  Id.  579."  Or  if  the 
monthly  aPowancc  decreed  to  be  paid  for  the 
support  of  the  wife  ii  thuuglit  to  Ijo  excessive, 
the  appellate  coui-t  will  reduce  it:  Eideumuller 
V.  Eidenmuller,  ?>!  Id.  3G4.  But  the  exercise 
of  the  ti'ial  court's  discretionary  power  in  this 
matter  will  not  be  interfered  with  by  the  ap- 


pellate court,  unless  it  be  abused:    Lake  V. 
Lake,  4  West  Coast  Rep.  150  (Xev.). 

In  Bovo  v.  Bovo,  G3  Cal.  77,  plaintiff  asked 
a  divorce  on  the  ground  of  the  ilefendant's 
adulti-ry,  which  she  denied,  and  filed  a  cross- 
complamt  praying  for  a  divorce  on  the  ground 
of  tlie  husband's  extreme  cruelty.  A  divorce 
was  granted— on  what  gmund,  it  docs  not  ap- 
pear— and  nearly  (mo  half  of  tlie  comnmnity 
properly  was  award'.'d  to  the  defcu'lant.  The 
appellate  court  refused  to  reverse  the  judg- 
ment for  abuse  of  discretion. 


43 


|§  155-lGO  PERSONAL  RELATIONS.  [Div.  I,  Pakt  HI, 


CHAPTER  III. 

HUSBAND  AND  WIFE. 

155.  lifufiial  obligations  of  husband  and  wife. 

Sec.  155,  Husband  and  wife  contract  towards  each  other  obligations  of 
mutual  respect,  fidelity,  and  support. 

Mother  aiding  in  support  of  children:  Husband's  support  of  wifs:  See  infra. 
Sec.   10(5,  po>:f.  Bees.    174,   175,  and  ante,  sec.    105,  wliere  the 

Wlfo's   support  of  husband;   See  infra,     failure  so  to  do  gives  ground  for  divorce. 
Bee.  17G. 

156.  Eighls  of  husband,  as  head  of  family. 

Sec.  15G.  The  busband  is  tbe  head  of  the  family.  He  may  choose  any  rea- 
sonable place  or  mode  of  living,  and  the  wife  must  conform  thereto. 

Head  of  family  for  homestead   purposes:        Husband's  selection  of  dwelling-place, 

ScL'  ;«>/,  sec.  12ul.  desertiou   if    wife  does  uot   conform   thereto: 

Parent  changing  residence  of  child:  Sec.     Sec.  103. 
213,  I'O.^t. 

157.  In  other  respects  their  interests  separate. 

Sec  157.  Neither  husband  nor  wife  has  any  interest  in  the  property  of  the 
other,  but  neither  can  be  excluded  from  the  other's  dwelling. 

158.  Husband  and  wife  may  make  contracts. 

Sec  158.  Either  husband  or  wife  may  enter  into  any  engagement  or  trans- 
action with  the  other,  or  with  any  other  person,  respecting  property,  which 
either  might  if  unmarried;  subject,  in  transactions  between  themselves,  to  the 
general  rules  which  control  the  actions  of  persons  occupying  confidential  rela- 
tions with  each  other,  as  defined  by  the  title  on  trusts. 

Married  vsroman's  contracts. —Prior  to  tlie  gage,  see  Parry  v.  Kelley,  ?>2  Cal.  334;   Wood  v. 

code,  the  wife  l^ibored  under  the  common-law  Urjbrd,  Id.  412;  Marlow  v.  Barleiv,  53  Id.  458; 

disability  in  rcLjard  to  making  contracts:  Piatt  Alexander  v.  Bonton,  55  Id.  19,  20;  Brickell  v. 

on  RiThts  of  Married  Women,  see.   19;  Bofoe  Bntchelder,  62  Id.  023. 

V.  Kii'li!e,  4  Cal.  285;  Simpers  v.  S/onn,  5  Id.         Coiitracta  between  husband  and  wife. — 

453;    Poo!  V.   Gvrard,   6   Id.    73;    Liming   v.  Where  the  husband  and  wife  enter  into  a  con* 

Brady,  10  Id.  2DS;  Shaver  v.  Bear  R.  <t  A.  W.  tract  with  respect  to  property,  it  seems  that 

<t  M.  Co.,  Id.  330;  Spear  v.  Ward,  20  Id.  059;  whatever  she  may  acquire  as  tlie  result  of  such 

MacLlai/  v.  Lovr,  25  Id.  307;  Smith  v.   Green,  contract  will  be  her  separate  prf)perty:    Wedel 

31  Id.  478;  Bdloc  v.  Davit,  38  Id.  2"0;  Drais  v.  Herman,  58  Cal.  507;  Schnler  v.  Savings  & 

V.  Uo'ja.i,  53  LI.  121.     But  the  above  section,  L.  Sondij,  1  West  Coast  Rep.  125. 
and  sections  107  and  1556,  recognize  a  married        Contracts  for  payment  of  money:    See 

woman's  \'\^^.\^  to  make  contracts.     Even  the  sec.  107. 

law  in  rcgaid  to  her  conveyances  of  realty  iiave         Charging  her  separate  estate. — Her  con- 
been  changed:  Sec  ir<'t/e/ v. //erma;;,  58  Id.  507.  tracts  need  not  express  an  intention  to  charge 

That  a  liiarricd  woman  may  mortgat^e  realty  her  separate  estate,  a  questim  which   has  re- 

etandin^  in  Iicr  individual  name,  see  A'jciar./s  V.  ceived  much  attention  in  other  courts:    Wood 

i/«^(7^(^^s■0M,  1  West  Coast  Rep.  059  (Nov.);  and  v.    Orford,  52  Cal.   412;    Cartan  v.  Davis,  3 

that  s!ie  may  biud  herself  by  a  note  and  mort-  West  Coast  Rep.  190  (Nev.). 

159.  Iloiofar  may  impair  their  h'gal  obligations. 

Sec  150.  A  busband  and  wife  cannot,  by  any  contract  with  each  other,  alter 
their  legal  relations,  except  as  to  property,  and  except  that  they  may  agree,  in 
writing,  to  an  immediate  separation,  and  may  make  provision  for  the  support 
of  either  of  them  and  of  their  children  during  such  separation.  [Amend nienl^ 
•approved  March  30,  1874;  Amendments  1873-4,  193;  took  effect  July  1,  1874.J 

Artloles  of  separation,  validity  of.  upheld:  See  Wells  v.  Stout,  9  Cal.  479. 

Subsequent  rooonoiliation  avoiding  agreement  for  separation:   Wella  v.  Stout,  supra. 

MaiTiage  settlements:  Sees.  177-lSl,  7)o.s<. 

160.  Consideration  for  agreemeid  of  separation. 

Sec.  IGO.  The  mutual  consent  of  the  parties  is  a  sufficient  consideration  for 
Buch  an  agreement  as  is  mentioned  in  the  last  section. 

44 


Title  I,  Chap.  III.] 


HUSBAND  AND  WIFE. 


§§  ICI,  1C2 


161.  ]Hay  be  joint  tenants,  etc. 

Sec.  IGl.  A  husband  aud  wife  may  bold  property  as  joint  tenants,  tenants  in 
common,  or  as  community  property. 

Tenants  by  entirety. — See  interesting  note  in  American  Decisions:  Den  v.  Jlardenbergh,  18 
Am.  Dec.  371. 

162.  Separate  property  of  the  wife. 

Sec.  162.  All  property  of  tbe  wife,  owned  by  her  before  marriage,  and  that 
acquired  afterwards  by  gift,  bequest,  devise,  or  descent,  with  the  rents,  issues, 
and  profits  thereof,  is  her  separate  property.  The  wife  may,  without  the 
consent  of  her  husband,  convey  her  separate  property. 

Separate  property  of  husband  or  wife  is  period  of  this  state's  history  that  the  legislature 
that  wliicli  is  held  both  in  its  use  and  in  its  title  could  not  declare  the  fruits  of  tlie  wife's  sep- 
for  the  exclusive  benefit  of  the  sjjouso  liulding  arate  estate  C(»mmunity  property:  Selovr  v. 
the  same:  Krdemfr  v.  Kraemer,  52  Cal.  302;  Amerlnin  li.  ('.  Co.,  7  Cal.  273;  Gcnnf  v.  Ran- 
Geonjf  V.  Rausom,  15  Id.  322.  The  \\o\\\  soin,  15  Id.  324;  Spear  v.  Ward,  20  Id.  C74; 
"separate,"  .as  used  in  section  14  of  article  11  Leiris  v.  Johns,  24  Id.  98;  IJeniidri/  v.  Fe!ch, 
of  tiie  former  constitution,  neirthcr  enlarged  nor  47  Id.  183.  But  what  is  meant  by  fruits  or 
limited  a  married  woman's  right  to  tlie  property  proceeds  is  not  definitely  determineil.  Div- 
nientioned,  but  merely  distinguished  it  from  idends  on  share  of  stock  are  profits,  and  be- 
her  common  property:  Doio  v.  O.  cC- C.  S.  M.  come  separate  estate:  George  \.  Ransom, --Hpra. 
Co.,  31  Cal.  021).  By  marriage  the  husband  ac-  And  it  lias  been  decide<l  that  the  results  of  the 
quires  no  rigiit  to  his  wife's  separate  estate:  fanning  the  wife's  land  was  her  separate  cstjite, 
Lewis  v.  Johiix,  2-1  C.\\.i)S.  Neithurthc  luisband  notwithstanding  the  husband  superintended 
nor  Iiis  creditors  can  claim  the  proceeds  of  her     tlie   farm   labor,  and  performed  work   himself 


sepirate  property:  Gforrje  v.  Ransom,  15  Id. 
322;  Sduvcr  v.  A.  P.  Com.  Co.,  7  Id.  2GG; 
Benudry  v.  relch,  47  Id.  183. 

Property  owned  before  marriage  is  the 
separate  property  after  marriage  of  the  spouse 
so  owning  it:  Snyder  v.  Webb,  3  Cal.  83;  and 
no  legal  or  beneficial  interest  in  the  use  or  en- 
joyment of  the  w  ife's  separate  estate  passes  by 
the  fact  of  marriage  to  the  husband:  Lewis  v. 
Johns,  24  Id.  98.  The  wife's  right  of  property 
is  as  complete  after  marriage  as  while  a  ffnie 
sole:  Id. 

Gift. — Property  acquired  by  gift  after  mar- 
ria,i.'e  is  the  separate  estate  of  the  donee:  Hart 
V.  R'bertson,  21  Cal.  34G;  Leii-is  v.  Johns,  24 
Id.  98;  Pvek  v.  Vandenherg,  30  Id.  11;  Dow  v. 
O.  <l-  C.  S.  M.  Co.,  31  Id.  629;  Woo</s  v.  Whit- 
ney.  42  Id.  35S;  lliggins  v.  Iliggins,  4(5  Id.  2.>9. 

The  husband  can  make  a  gilt  to  the  wife  of 
either  his  .separate  or  of  the  community  j)rop- 
erty,  and  it  will  become  lier  separate  property: 
Kohnrr  v.  Ashenaner,  17  Cal.  582;  Pick  v. 
Brununaijim,  31    Id.    445;  Kane    v.    De^vi'ind, 


Len-U  V.  Johns,  snpra.  Accnmnlations  arising 
out  of  the  indu.stry  and  skill  of  tbe  husband 
expended  upon  his  land  are  his  separate  prop- 
perty:  Estate  of  lliggins,  3  West  Coast  Rep. 
358.  .So  property  purchased  during  coverture, 
with  funds  forming  part  of  the  hu.sband's  or 
wife's  separate  estate,  will  be  separate  jn-operty: 
Id. ;  Ramsdell  v.  Fidler,  28  Cal.  37.  Where  the 
luisband  manages  the  wife's  separate  pioperty, 
lie  must  manage  it  as  her  separate  estate,  and 
she  is  entitled  to  enjoy  the  income:  WdiOii  v. 
Wilson,  3G  Id.  447. 

The  wife  may,  with  her  separate  funds,  buy 
from  the  husband  land  which  is  his  separate 
property,  and  there  will  ari.se  no  prcsumi)tion 
that  such  land  becomes  community  property: 
Jhtsseii  V.  Caslle,  41  Cal.  239. 

Conflict  of  laws  as  to  cliaracter  of  prop- 
erty.— A  luisband  and  wife  may  be  married  in 
one  state,  move  to  another,  and  finally  reside 
in  another,  or  they  may  be  married  in  a  state 
where  they  do  not  reside,  or  where  ]iroperty 
owned   liy  either  or  both  is   not  situated,  or 


63  Id.   4(J4.      If  the  husband  voluntarily  pays     after  marriage  they  may  acquire  property  out 


out  money  in  the  construction,  of  a  house  on 
the  land  of  his  wife,  the  house  becomes  her 
eeparaie  estate:  Reck  v.  Briinnnagim,  31  Id. 
440;  so  valid  gifts  from  liusb.md  to  wife:  Barker 
y.  Konernan,  13  Id.  9;  lliissey  v.  Castle,  41  Id. 
241;  Kane  v.  J)esmond,  63  Id.  4G4.  A  deed 
from  a  third  person  to  the  wife  for  a  considera- 
tion i)aid  by  the  husband,  the  deed  reciting  the 
projierty  to  be  "  her  se[>arate  property,  and  to 
and  for  her  sole  ami  separate  use,"  constitute 
the  priiiii.«es  her  separate  estate:  Swain  v. 
Dimne,  48  Id.  358. 

Bequest,   devise,   or  descent— Property 
ac(piir<d  by  descent  by  a  marrieil  woman  in 


of  the  state.  Questions  then  arise,  when  the 
laws  of  the  various  states  ditft-r,  which  law  is 
to  govern  in  determining  the  character  of  the 
property.  Some  of  the  points  here  suggested 
have  been  passed  upon;  and  this  rule,  .-is  sup- 
ported by  the  decisions,  may  l)e  fornndated: 
The  law  of  the  place  of  residence  aud  of  the 
ac(piisition  of  personalty  gives  it  its  separate 
or  contmunity  character,  to  be  unchanged  by 
removing  to  another  state:  Kramn'r  v.  A'rae- 
mer,  52  Cal.  302;  Dye  v.  Dye,  II  M.  I  OS;  //ill 
V.  McDn-motf,  Dallam,  422;  Kdrington  v.  May- 
field,  5  Tex.  .303.  If  the  place  of  the  acqui- 
sition of  the  property  is  not  the  residence  of 


California,    before   its   cession   to   the    United  the  parties,  the  law  of  the  domicile  govern 

States,    became    her   separate    property:   Ita-  S'ate  v.  /inrron,\Mt\.  \~^.     The  capacity  of  a 

cou'liit  V.  Sansi'vain,  32  Cal.  37G.  wife  residing  in  California  to  acipiire  proiicrty 

Rents,  issues,  and  profits. — What  is  meant  is  regulated  by  the  law  of  that  state,  and  not 

by  this  phrase  is  a  difficult  question  to  answer,  bj"-  tlie  law  of  the  place  where  the  marriage  was 

See  the  discussion  by  Professor  Pomeroy  iu  4  cclelirated:  /)ow  v.  (7., l-C.S.  M. Co., '.i\C.A.  ()'30. 
West  Coast  Rep.  193;  and  Platts' Rights  of  iMar-        Husband's  control    of   wife's    separata 

tied  Women,  sec.  14.    It  was  settled  at  an  early  property. — For  decisions  under  former  stat- 

45 


§§  1C3-1G7 


PERSONAL  RELATIONS. 


[Div.  I,  Part  HI, 


utes  of  this  state  giving  the  hnshand  control  Jnhm,  34  Id.  629;  Wihon  v.  Wihon,  36  Id.  447; 

over  and  the  niiiiiagenient  of  his  wife's  sepa-  Drain  v.  Jloijan,  50  Id.  14;  Dirkiinfon  v.  Uwenn, 

rate  property,  see  Meaijher  v.   Thom/iion,  49  11   Id.  71;    Mahoiie  v.  Oriiufhfuc,  20  Id.  176; 

Cal.  189;  O'lirieu  v.  Foreman,  46  Id.  80;  Lewis  I'latt'a  Rights  of  Married  Women,  sec.  18. 

163.    Separate  property  of  the  hunhand. 

Seo.  1G3.  All  property  owned  by  the  busband  before  marri<age,  and  tbat 
acquired  afterwards  by  gift,  bequest,  devise,  or  descent,  with  the  rents,  issues, 
and  profits  thereof,  is  his  separate  property. 

Husband's  separate  estate:  See  the  note    grantees  of  the  Mexican  government,  marries, 


to  the  previous  section  as  to  separate  i^roperty 
in  general. 

Uudur  tlie  Mexican  law  in  California,  before 
its  cession  to  the  United  States,  tlie  grant  of  a 
lot  in  a  pueljlo  by  an  alcalde  to  a  married  man 
vested  tlie  title  in  the  husband  as  his  separate 
property:  Fuller  v.  Ferijmon,  26  Cal.  546;  ll'i^ 
soil  V.  Ca<lro,  31  I<I.  420.  So  where  a  single 
man,  while  in  possession  of  a  tract  of  land, 
claiming  to  own  by  virtue  of  a  purchase  from 


if  the  grant  is  rejected,  and  the  man  is  subse- 
quently permitted  by  act  of  congress  to  pur- 
chase it  from  the  United  States,  and  does  so, 
the  land  is  his  separate  property:  Lake  v.  Lake, 
52  Cal.  428. 

Whether  if  a  husband  borrows  money  with 
the  distinct  understanding  that  his  se|jarate 
property  alone  is  liable,  and  invests  the  same 
in  lands,  they  become  his  separate  property, 
quvere:  Estate  of  llolberl,  57  Cal.  257. 


164.     Comm u n ily  property. 

Sec.  1G4.     All  other  property  acquired  after  marriage,  by  either  husband  or 
wife,  or  both,  is  community  property. 


Community  property:  See  the  definition, 
Bee.  687.  A  deed  of  land  to  a  husband,  in  con- 
sideration of  his  releasing  his  unlawful  claim 
to  the  remainder  of  the  tract  of  which  he  had 
been  in  iiossession  without  right  before  his 
marriage,  does  not  make  the  land  his  separate 
property:  Panroant  v.  Pancoant,  57  Cal.  320. 
The  presumption  is  that  all  property  ac- 
quired by  either  spouse  after  marriage,  espe- 
cially where  it  apjiears  to  have  been  obtained 
for  a  valuable  consideration,  is  community 
property,  and  the  burden  is  upon  him  who 
claims  it  to  be  the  separate  property  of  either 
to  prove  it:  Mcijer  v.  Kinzer,  12  Cal.  247; 
Smith  V.  .Sm/7/«.  12  Id.  216;  Mott  v.  Srnith,  16 
Id.  5,33,  5.")7;  Bnrtonv.  Lies,  21  Id.  87;  Aifnvin 
V.  Knowlton,  22  Id.  283;  Riley  v.  Peld,  23  Id. 
70;  Tustin  v.  Ftimjht,  Id.  241;  McDonald  \\ 
Badijer,  Id.  31)3 ;  Lavdcrs  v.  Bolloii,  26  Id. 
393,  420;  Ravisdrll  v.  Fuller,  28  Id.  37;  Pn-k 
V.  Brummajim,  31  Id.  440;  Bernal  v.  Gleim, 
33  Id.  60S;  Altlwf  y.  Conheim,  38  Id.  230; 
Moore  v.  Jone-t,  6.3  Id.  12;  Schuler  v.  Saviw/n 
d:  L.  Soriel;/,  1  West  Coast  Rep.  125;  Love  v. 
Robertson,  7  Tex.  11;  Wood  v.  Wheeler,  Id.  20; 
Houston  V.  Carl,  8  Id.  240;  Chapman  v.  Allen, 


15  LI.  278;  Cooke  v.  Bremond,  27  Id.  4.')9;  Zorn 
V.  Tnrver,  bl  Id.  390;  Pmrce  v.  Jackson,  61 
Id.  644;  Smalley  v.  Lawrence,  9  Rob.  (La.)  201; 
Fisher  V.  Oordy,  2  La.  Ann.  702;  Andrew  v. 
Brailley,  10  Id.  606;  Forbes  v.  Forbes,  11  Id. 
326. 

This  presumption  arises  whether  the  grant  or 
deed  be  made  to  them  jointly,  or  to  either  indi- 
vidually: Meyer  y.  Kinzer,  12  Cal.  247;  Pixley 
V.  Iliizzins,  15  Cal.  131;  T'lron  v.  Sntton.  13  Id. 
494;  Parker  v.  Chinee,  11  Tex.  517;  T\ickfr  v. 
Varv,  .39  Id.  98;  McDnnhlv.  Weiss,  53  Id.  259. 
There  is  no  presumption  that  property  in  the 
possession  of  husband  and  wife  belongs  to  the 
husband  rather  than  to  the  wife:  Edriugton  v. 
Mayfcld,  5  Tex.  368. 

See  Professor  Pomeroy's  articles  in  4  Wedt 
Coast  Rep.  ,357,  389,  445,  541. 

See  also  Piatt's  Riglits  of  Married  Women, 
sees.  32  et  seq. 

Community  property  liable  for  "what 
debts:  Sec.   167. 

Husband's  control  over  community 
property:  Sec.  172. 

Descent  of  commtmity  property:  Sees, 
1401,  1402,  post. 


165.  Inventory  of  separate  property  of  wfe. 

Sec.  1G5.  A  full  and  complete  inventory  of  the  separate  personal  property 
of  the  wife  ma}'  be  made  out  and  signed  by  her,  acknowledged  or  proved  in  the 
manner  required  by  law  for  the  acknowledgment  or  proof  of  a  gi'ant  of  real  prop- 
erty by  an  unmarried  woman,  and  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  parties  reside. 

166.  Filing  inventory  notice  of  wife's  title  and  prima  facie  evidence. 

Sec  IGG.  The  filing  of  the  inventory  in  the  recorder's  office  is  notice  and 
prima  facie  evidence  of  the  title  of  the  wife.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  193;  took  effect  July  1,  1874,] 

167.  Communify  property,  ivhen  not  liable  for  contracts  of , wife. 

Sec  1G7.  The  property  of  the  community  is  not  liable  for  the  contracts  of 
the  wife,  made  after  marriage,  unless  secured  by  a  pledge  or  mortgage  thereof 

46 


Title  I,  CnAP.  III.] 


HUSBAND  AND  U^FE. 


§§  16S-172 


executed  by  the  husband.     [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  103;  took  effect  July  1,  1874.] 


Under  this  section  as  originally  enacted 
a  married  uoman  could  not  make  a  contract 
for  the  payment  of  nioricy:  Butler  v.  Babcr,  54 
Cal.  ITS;  Unrlell  v.  Batrhddor,  02  Id.  G23. 

Commuuity  property  liable  for  what 
debts  of  ■wife. — The  communiiy  i)roperty  is 
liable  for  the  anteuuptial  debts  ol'  the  wife: 
Van  Mnrcn  v.  Johnson,  l.j  Cal.  oOS;  Vlautin  v. 
Bumpua,  33  Id.  214.     But  the  above  section 


makes  certain  express  limits  upon  the  wifeV 
power  to  charge  the  community  property  •with 
her  post-nil ntial  debts:  See  Greiuer  v.  Greiner, 

5SCai.  iio,  na. 

Debts  of  wife:  See  sees.  170,  171,  174. 

Conimunity  property  la  liable  for  Ims- 
bands  debts:  Sec.  17"2;  Ai/amn  v.  Kiioivltou, 
22  Cal.  283;  Estate  of  Tomjdins,  12  M.  114. 

Necessaries  fTimished  wif e :  See  sec.  174. 


168.  Earnings  of  wife  not  liable  for  debts  of  husbayid. 

Sec.  ICS.  The  earnings  of  the  -wife  are  not  liable  for  the  debts  of  the  hus- 
band. 

Earnings  of  'wife  are  not  liable  for  the  hus-  whetlier  her  earnings  are  liable  for  any  debts 
band's  debts:  Finnigan  v.lIioeniiaH.  d:  L.  Sac,  not  peculiarly  of  her  contracting,  as  for  exam- 
63  Cal.  301.  Wiiether  they  are  licr  separate  pie,  whether  they  could  be  chai'ged  with  com- 
pro]iertj-,  under  other  circumstances  than  those  nuinicy  debts,  see  Professor  Pomeroy's  article, 
mentioned  in  the  next  section,  see  the  remark  4  West  Coast  Hep.  306. 
of  Marlow  v.    Barleiv,  53  Id.   456,   459;   and 

169.  Earnings  of  wife,  when  living  separate,  separate  property. 

Sec.  1G9.  The  earnings  and  accumulations  of  the  wife,  and  of  her  minor 
children  living  ■with  her  or  in  her  custody,  while  she  is  living  sepax'ate  from  her 
husband,  are  the  separate  property  of  the  wife. 


Earnings  and  accumulations  of  ■wife,  sep- 
arate pro[eny:  Sec  "Separate  rro[ieity,  Cen- 
erally,"  in  sec.  102,  and  note.  Comparing  this 
eection  with  108,  we  find  that  thj  earnings  of 
the  wife  wiiile  living  with  her  husband  are  not 
liable  for  his  debts;  yet  tiie  earnings  must  be 
community  property  wlien  they  aie  living  to- 
gether,and  the  husband  controls  the  community 
property:  Sec.  172.    See  the  article  by  I'rofessor 

170.    Liability  for  debts  of  wife  contracted  before  marriage. 

Sec.  170.     The  separate  i:)roperty  of  the  husband  is  not  liable  for  the  debts 
of  the  wife  contracted  before  the  marriasfe. 


Pomeroy,  refei-red  to  in  the  previous  note  on 
this  question;  consult  also  Murloic  v.  Barlew, 
53  Cal.  451),  in  which  earnings  were  spoken  of 
as  separate  Tiroperty  generally. 

Sole  tradera— As  to  married  women  be- 
coming sole  traders,  and  their  rigiits  and  liabil- 
ities as  such,  see  Code  Civ.  Proc,  sees.  ISll- 
1821,  inclusive. 


"At  common  la-w,  the  husband,  during 
covt.'rture,  Vi  as  liable  for  the  debts  of  his  wife 
contiacted  ))efore  tiie  marriage.  Sections  170 
f.ml  1 7 1  liiddify  the  common  law  in  two  respects. 
They  lender  the  separate  pi-opcrty  of  the  wife 
liable,  and  exempt  the  separate  property  of  the 
husband.  iJcyond  this  exemption  of  liis  sepa- 
rate pi'operty,  the  liability  of  the  husband  ex- 
ists— tiiat  is,  he  is  liable  to  the  extent  of  the 
common  property:  Va7i  Maren  v.  Jolinson,   15 


Cal.  308;  Pachard  v.  AreUanef>,  17  Id.  537; 
Kai/s  V.  Phelan,  19  Id.  128.  In  a  suit  against 
tlic  husband  for  services  rendered  l>y  the  plaint- 
iff to  the  wife  before  her  marriage,  judgment 
may  be  entered  against  both  defendants,  with 
a  direction  that  it  be  enforced  against  the  sepa- 
rate property  of  the  wife  and  tiie  common 
l)ropeity  of  both:  Van  M<iren  v.  Johnson,  15 
Id.  308;  Kaysv.Phdan,  19  Id.  128;  Corcoran 
V,  Doll,  32  Id.  90: "  Commissioner's  note. 


171.  Wife's  property  not  liable  for  debts  of  husband,  but  liable  for  her  own  debts. 
Sec  171.     The  separate  property  of  the  wife  is  not  liable  for  the  debts  of  her 

husband,  but  is  liable  for  her  own  debts,  contracted  before  or  after  luairiage. 
See  note  to  sec.  170. 

172.  Power  of  husband  over  community  property. 

Sec  172.     The  husband  has  the  management  and  control  of  the  community 
property,  with  the  like  absolute  power  of  disposition  (other  than  testamentary) 

as  he  has  of  his  separate  estate. 


I.Imagement  of  the  community  prop- 
erty.— "  I'rior  to  the  adoption  of  the  codes,  the 
title  to  the  common  property  vested  in  the 
husband.  He  could,  during  the  coverture,  dis- 
pose of  sue!)  property  absolutely  as  if  it  were 
liis  own  separate  property.  The  interest  of  the 
wife    during    the   same    period    was  a   mere 


e.xpectancy,  like  the  interest  wliich  an  heir  may 
possess  in  the  property  of  his  ancestor:  Van 
Maren  v.  Johnson,  15  Cal.  312;  De  G«dey  v. 
Qodey,  39  Id.  104.  It  is  true  that  the  husbami 
could  not  deprive  her  of  it  by  iiiswill:  Beard 
V.  Knox,  5  Id.  256.  The  same  is  true  under 
the  Civil  Code:"  Qrtiner  v.  Greiner,  58  CaL 


47 


Ss  173-178  PERSONAL  RELATIONS.  [Drv.  I,  Part  III, 

115,  110,  citing  this  section.  Tlie  husband,  geMionn  in  Greiner  v.  GrehiPr,  r)S  Ca.\.  ]\'i,  both 
having  tlie  control  of  and  tlio  le:,'al  title  to  tlic  as  to  the  remedy  where  the  friiudiilcnt  transfer 
common  property,  may  even  give  the  same  h:is  l)ecn  accomplished  and  wiiere  it  is  alleged 
away,  if  not  done  with  a  view  to  defraud  tlie  to  he.  hut  contemplated  or  threatened, 
wife;  but  it  seems  tliat  this  power  of  voluntary  Testamsntary  control  over  community 
disposition  must  he  limited  to  an  amount  property:  See  sees.  1401  and  UOJ, //o.^/,  which 
reasonable  when  compared  witli  the  property  prescribe  the  course  of  descent  of  common  prop- 
retained:  Lord  V.  Ifoir/h,  43  Cal.  581.  And  erty,  and  limit  the  power  of  testamentary  dis- 
see  Paiimidv.  Jones,  1  Cal.  514;  Srnifhx.  Smith,  position  over  the  same. 

12  Id.  22o;  Fuller  v.  FerQiison,  20  Id.  507;  Be  Comraunity     property     generally:     See 

Ooiley  v.   Godey,    snpra;    Wrhjht  v.    Hays,    10  supra,  sec.  1G4,  and  note.     Sec  also   tlie   very 

Tex.  I"."?;  Srott  V.  Ma>inard,  Dallam,  543.  full  discussion  and  collection  of  cases  in  Platt'a 

"Wife's  rsmedy  for  husband's  A?irfonsful  Rights  of  Married  Women,  sees.  37  et  seq. 

disposal  of  community  property. — On  ihis  Dissolution  of   the  commuaity   by    di- 

imiKjrtaut  matter  there  are  some  valuable  sug-  vorce:  See  sees.  147,  148. 

173.  Courtesy  and  dower  not  allowed. 

Seo.  173.  No  estate  is  allowed  the  husband  as  tenant  by  courtesy  upon  the 
death  of  his  wife,  nor  is  any  estate  in  dower  allotted  to  the  wife  upon  the  death 
of  her  husband. 

174.  Unhand  liable  for  support  of  wife. 

Sec.  174.  If  the  husband  neglect  to  make. adequate  provision  for  the  sup- 
port of  his  wife,  except  in  the  cases  mentioned  in  the  next  section,  any  other 
person  may,  in  good  faith,  suppl}--  her  with  articles  neces.sary  for  her  support, 
and  recover  the  reasonable  value  thereof  from  the  husband.  \A)nendmeni, 
approved  March  30,  1874;  Amendments  1873-4,  193;  took  effect  July  1,  1874.] 

Husband's    liability    for    ■vyife's    neces-  The  questions  suggested  by   section    175  also 

B£iries:     See  a  careful  statement  of  the  law  on  receive  attention  in  that  note.      Van  Marrn  v. 

this  subject,  now  well  settled,  with  citations  Johnsoii,  15  Id.  308,  supports  tlie  principle  de- 

from  tlie  decisions  of  various  courts,  in  the  note  clared  in  the  above  section.     See  next  section 

to  CunuiiKjIiam  v.  Irwin,  10  Am.  Dec.  458,  4G2.  aud  note. 

175.  When  not  liable. 

Sec.  175.  A  husband  abandoned  by  his  wife  is  not  liable  for  her  support 
■until  she  offers  to  return,  unless  she  was  justified,  by  his  misconduct,  in  aban- 
doning him;  nor  is  he  liable  for  her  support  when  she  is  living  separate  from 
him  by  agreement,  unless  such  support  is  stipulated  in  the  agreement. 
[Amendment,  approved  March  30, 1874;  Amendments  1873-4, 193;  toolc  effect  July 
1,  1874.] 

Husband's  liability  for  wife's  support:  citeil  and  held  not  applicable  to  the  facts  of  the 
See  reference  in  note  to  last  section.     Section     case  in  IleiLcy  v.  Sargent,  54  L'al.  3'J7. 

176.  When  wife  must  support  husband. 

Sec.  17G.  The  wife  must  support  her  husband,  wlien  he  has  not  deserted  her, 
out  of  her  separate  property,  when  he  has  no  separate  property,  and  there  is  no 
community  property,  and  he  is  unable,  from  infirmity,  to  support  himself. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  194;  took  effect 
July  1,  1814:.] 

Mutual  obligations  of  support:  See  sec.  155. 

177.  Hiyhts  of  husband  governed  by  what. 

Sec  177.  The  property  rights  of  husband  and  wife  are  governed  by  this 
chapter,  unless  there  is  a  marriage  settlement  containing  stipulations  contrary 
thereto, 

178.  Marriage  settlement  contracts,  how  executed. 

Sec.  178.  All  contracts  for  marriage  settlements  must  be  in  writing,  and 
executed  and  acknowledged  or  proved  in  like  manner  as  a  grant  of  land  is 
required  to  be  executed  and  acknowledged  or  proved. 

4S 


Title  II,  Chap.  I.] 


CHILDREN  BY  BIRTH. 


§§  179-194 


Marriage  settlements Where  a  man  and 

woman  entered  into  an  agi-eemeiit  whereby 
they  nuitually  pi-omisecl  to  intermarry  within 
a  reasonable  time,  and  the  man  promised  to 
give  certain  bonds  to  the  woman  on  or  before 
the  day  of  their  marriage,  such  an  agreement 
cannot  be  avoided  by  his  neglecting  to  marry 


the  woman.  It  is  his  duty  to  seek  iier,  not 
liera  to  seek  him,  and  upon  his  refusal  to  marry 
her  after  waiting  a  reasonable  time  she  cnn  re- 
cover the  bonds:  Connor  v.  Stanley,  Adm'r,  2 
\Yest  Coast  Rep.  749. 

See  a  comprehensive  note  to  MfrrUt  v.  Scott,- 
50  Am.  Dec.  471,  diseusaing  this  subject. 


179.  To  he  acknotoledged  and  recorded. 

Sec.  179.  Wben  such  contract  is  acknowledged  or  proved,  it  must  be 
recorded  in  tlie  office  of  the  recorder  of  every  county  in  which  any  real  estate 
may  be  situated  which  is  granted  or  afTected  by  such  contract. 

180.  Effect  of  recording. 

Sec.  180.  The  recording  or  non-recording  of  such  contract  has  a  like  eflect 
as  the  recording  or  non-recording  of  a  grant  of  real  property. 

181.  Minors  may  make  marriage  selllements. 

Sec.  181.  A  nainor  capable  of  contracting  marriage  may  make  a  valid  marriage 
Bettlemeut. 


TITLE    II. 

PARENT  AND  CHILD. 

Chapter  I.    By  Bibth 193 

IL    J3t  Adoption 221 


CHAPTEE  I. 

CHILDREN  BY  BIRTH. 

193.    LegHimacxj  of  children  horn  in  wedlock. 

Sec.  193.     All  children  born  in  wedlock  are  presumed  to  be  legitimate. 


"Children." — Speaking  of  this  word,  the 
court,  in  Esiutp  of  Wankll,  57  Cal.  484,  491, 
eay  that  its  meaning  "has  been  greatly  en- 
lai'ged  from  what  it  was  at  coinniou  law.  If 
courts  weic  now  to  restrict  the  word  to  its 
common-law  meaning,  all  children  horn  of  an 


which  siie  had  been  excluded,  the  will  not 
mentioning  her.  She  waa  permitted  to  uuico 
in  and  iiilierit. 

Cliild  born  in  "w^edlock  is  presnuied  to  be 
the  child  of  the  husband,  and  where  a  maa 
marries  a  woman  with  cliild,  he  knowing  that 


nnlawfnl  marriage,  all  children  by  adoption  or     fact,  he  is  presumed  to  be  the  father:  Baker  v, 
ai  knowletlgiiient  vi  their  father,  and  all  chil-     Baker,  I.S  Cal.  87. 


dreii  who.so  parents  intermarried  subse(|uent  to 
their  birth,  wduM  be  excluded  from  rights  of 
inheritance  or  succession.  But  by  statute  law, 
the  odspring  of  marriages  null  in  law  (Civ. 
Code,  sec.  .ShI),  cliildren  born  out  of  lawful  wed- 
lock wli(jse  parents  snlisoquently  intermarried 
(111.,  sec.  "ii.'.),  and  cliililren  by  aciiuowledg- 
mentorudoption  of  tlieir  father  (Id.,  sees.  'IIA, 
2J7,  'J"iS,  •»»:{()),  are  all  legitimate.  These, 
although  iiic;i|iacitatrd  at  connuon  law  trom 
Buccecding  to  any  riglits  of  tlieir  father,  are 
regarded  tor  ail  purjioses  as  legitimate  from 
the  time  of  tluir  birth."  Thi.s  was  said  in  a 
cause  involving  the  right  of  an  illegitiniato 
child  to  iidiurit  part  of  her  mother's  estate  from 


Legitimacy  of  children  of  nullified  mar- 
riage: See  ante,  sec.  84. 

Legitimacy  in  cases  of  adultery :  See  ante, 
sec^.  144,  14."). 

Rebuttiug  presumption  of  legitimacy: 
Sec.  111.'),  infra. 

Legitimating    children    by  marriage    of 

paieuts:  See  sec.  21."),  post. 

Father  legitimating  child  by  acknowl- 
edging  it:  Sec.  230;  and   compare  sec.  1387i 

JiO^t. 

Illegitimate's  earnings:  See  sec.  200. 

Illegitimates,  heirs  to  whom:  Soc.  1.^87, 
poHf.  Mother  succeeds  to  estate  of  illegiti- 
mate: Sec.  loSS,  j)Ost. 


194.    Lrgilimaei/  of  children  horn  after  dii^i^oUition  of  marriage. 

Sec.  104.  All  children  of  a  woman  who  has  been  married,  born  within  ten 
months  after  the  dissolution  of  the  marriage,  are  presuincd  to  be  legitimate 
children  of  that  marriage.  [Amendment,  approved  March  30, 1874;  AmendmenU 
1873-4,  194;  took  effect  July  1,  1874.] 

Legitimacy  generally:  See  references  in  note  to  sec.  193. 
Civ.  Code— 4  49 


§§  10i>-199  PERSONAL  RELATIONS.  [Div.  I,  Paet  IH, 

195.  WJio  may  dispute  legitimacy  of  child. 

Sec.  195.  The  presumption  of  legitimacy  can  be  disputed  only  by  the  hus- 
band or  wife,  or  the  descendant  of  one  or  both  of  them.  Illegitimacy,  in  such 
case,  may  be  proved  like  any  other  fact. 

Affiliation  of  bastards  discussed  in  note  to  Bastards,  rights  of  In  generail,  discussed 
Wtatktij'ord  V.  Weaiher/ord,  56  Ain.  Dec.  210.     in  note  to  Simmons  v.  Bull,  56  Ani.  Dec.  257. 

196.  Obligation  of  parents  for  support  and  education  of  children. 

Sec.  19G.  The  parent  entitled  to  the  custody  of  a  child  must  give  him  sup- 
port and  education  suitable  to  his  circumstances.  If  the  support  and  education 
which  the  father  of  a  legitimate  child  is  able  to  give  are  inadequate,  the  mother 
must  assist  him  to  the  extent  of  her  ability. 

Action  to  enforce  parental   duty:   Sec.  Illegitimate  child.— The  mother  is  entitled 

203,  iiijhi.  to   the  custody  of  an  illegitimate   unmarried 

Third    person    supplying     necessaries:  minor:    Sec.    200.     As  section   196   makes  no 

Sees.  207,  208,  infra.  provision  for  the  support  of  an   illegitimate 

Willful  failure  to  support  child  is  a  mis-  chihl  by  any  one  other  than  the  one  entitled  to 

demeanor:  I'en.  Code,  sec.  270.  its  custody,  it  would  seem  that  the  father  can- 
Deserting   child  is  a  felony:   Pen.   Code,  not  be  compelled  to  support  it  by  reason  of  this 

sec.  271.  section  alone. 

Supporting  poor  relatives:  See  sec.  206,  Injiiry  to  child,  action  for:  See  Code  Civ. 

infra.  Proc,  sec.  376. 

J197.    Custody  of  legitimate  child. 

Sec.  197.     The  father  of  a  legitimate  unmarried  minor  child  is  entitled  to  its 

tcustody,  services,  and  earnings;  but  he  cannot  transfer  such  custodv  or  ser- 
vices to  any  other  person,  except  the  mother,  without  her  written  consent,  un- 
less she  has  deserted  him,  or  is  living  separate  from  him  by  agreement.  If  the 
father  be  dead,  or  be  unable  or  refuse  to  take  the  custody,  or  has  abandoned 
his  family,  the  mother  is  entitled  thereto.     [Amendment,  approved  March  30, 

;1874;  Amendments  1873-4,  194;  took  effect  July  1,  1874.] 

Relinquishing  right  to  child's  earnings:  Sec.  211,  hifra. 

Property  of  child,  parent,  as  such,  has  no  control  of:  Sec.  202,  infra. 

Guardian,  appointment  of:  See  j)os<,  sees.  241  et  seq. 

193.    Husband  and  wife  living  separate,  neither  to  have  superior  right  to  custody 

of  cJiildren. 

Sec.  198.     The  husband  and  father,  as  such,  has  no  rights  superior  to  those 

of  the  wife  and  mother,  in  regard  to  the  care,  custody,  education,  and  control 

of  the  children  of  the  marriage,  while  such  husband  and  wife  live  separate  and 

-apart  from  each  other. 

Custody  of  child:   See  the  subject    dis-        Same  in  divorce  causes:  See  ante,  sec. 
•  cussed  generally  in  a  note  to  Slaie  v.  Smith,  20     138. 
Am.  Dec.  330. 

.  199.    When  husband  or  wife  may  bring  action  for  exclusive  control  of  children. 

Sec.  199.  Without  application  for  a  divorce,  the  husband  or  the  wife  may 
bring  an  action  for  the  exclusive  control  of  the  children  of  the  marriage;  and 
the  court  may,  during  the  pendency  of  such  action,  or  at  the  final  hearing 
thereof,  or  afterwards,  make  such  order  or  decree  in  regard  to  the  support, 
care,  custody,  education,  and  control  of  the  children  of  the  marriage,  as  may 
be  just,  and  in  accordance  with  the  natural  rights  of  the  parents  and  the  best 

Interests  of  the  children,  and  may  at  any  time  thereafter  amend,  varj%  or  modify 
such  order  or  decree,  as  the  natural  rights  and  the  interests  of  the  parties,  in- 

■^■cluding  the  children,  may  require. 

Compare  with  section  214.  infra.  Awarding  custody  of  child. — Considera- 

Coutrol  of  children  pendiag  divorce  pro-  tions  that  should  govern  the  court:  Sec.  246, 
^ceediugs:  See  ante,  sec.  138.  post. 

60 


Title  II,  Chap.  I.]  CHILDREN  BY  BIRTH.  §§  200-207 

230.    Custody  of  an  illegitimate  child. 

Sec.  200.    The  motber  of  an  illegitimate  unmarried  minor  is  entitled  to  its 

custody,  services,  and  earnings. 

Mother  the  heir  of  lUegitimata  ohild:  in  the  note  to  Simmons  v.  Bull,  56  Am.  Dec. 
Seo.  l.SSN,  post.  257. 

Bastards,  rights  of  in   general,  discussed        Duty  to  support  child:  Sec.  196. 

£01.   Allnwavce  to  parent. 

Skc.  201.    The  proper  court  may  direct  an  allowance  to  be  made  to  the  parent 

of  a  child,  out  of  its  propex-ty,  for  its  past  or  future  support  and  education,  on 

Buch  conditions  as  may  be  proper,  whenever  such  direction  is  for  its  benefit. 

Allowance  out  of  child's  property  for  its  support:  See  the  subject  treated  in  note  to 
Myers  v.  Mi/ers,  IG  Am.  Dec.  GGl. 

202.  Parent  cannot  control  property  of  child. 

Sec.  202.    The  parent,  as  such,  has  no  control  over  the  property  of  the  child. 

Sample  principle:  Sec.  242,  j^ost. 

Guardian  of  minor's  estate :  See  sec.  241,  post,  et  seq. 

203.  Remedy  for  parental  abuse. 

Si:;c.  203.  The  abuse  of  parental  authority  is  the  subject  of  judicial  cogni- 
zance in  a  cinl  action  brought  by  the  child,  or  by  its  relative  within  the  third 
degree,  or  by  the  supervisors  of  the  county  where  the  child  resides;  and  when 
the  abuse  is  established,  the  child  may  be  freed  from  the  dominion  of  the  parent, 
and  the  duty  of  support  and  education  enforced.. 

Parental  duty:  See  sec.  19C,  ante. 

204.  When  parental  authority  ceases. 

Sec.  204.    The  authority  of  a  parent  ceases: 

1.  Upon  the  appointment,  by  a  court,  of  a  guardian  of  the  person  of  a  child; 

2.  Ujjon  the  marriage  of  a  child;  or, 

3.  Upon  its  attaining  majority.  . 

205.  Remedy  when  parent  dies  without  providing  for  support  of  child. 

Sec.  205.  If  a  parent  chargeable  with  the  support  of  a  child  dies,  leaving  it 
chargeable  to  the  county,  and  leaving  an  estate  sufficient  for  its  sujjport,  the 
supervisors  of  the  county  may  claim  provision  for  its  support  from  the  parent's 
estate  by  civil  action,  and  for  this  i^urpose  may  have  the  same  remedies  as  any 
creditors  against  that  estate,  and  against  the  heirs,  devisees,  and  next  of  kin  of 
the  parent. 

206.  Reciprocal  duties  of  parents  and  children  in  maintaining  each  other. 

Sec.  20G.  It  is  the  duty  of  the  father,  the  mother,  and  the  children  of  any 
poor  person  ■who  is  unable  to  maintain  himself  by  work,  to  maintain  such  per- 
son to  the  extent  of  their  ability.  The  pi'omise  of  an  adult  child  to  pay  for 
necessaries  previously  furnished  to  such  parent  is  binding. 

Mother  supporting  children:  Sec.  197.  Wife  supporting  husband:  Sec.  176. 

207.  When  parent  is  liable  for  necessaries  supplied  to  child. 

Sec.  207.     If  a  parent  neglects  to  provide  articles  necessary  for  his  child  who 

is  under  his  charge,  according  to  his  circumstances,  a  third  person  may  in  good 

faith  supply  such  necessaries,  and  recover  the  reasonable  value  thereof  from  the 

parent. 

Parent  liable  for  necessaries  furnished  Infant  liable  on  contract  for  necessaries; 
infant:  See  Scbouler  ou  Dom.  ilel.,  sees.  241  See  sec.  3G,  ante,  and  Schouler  on  Dom.  Kcl., 
et  seq.  sees.  411  et  scq. 

51 


§§  208-215  PERSONAL  RELATIONS.  Piv.  I.  Paet  m, 

208.  When  parent  not  liable/or  support  furnished  child. 

Sec.  208.  A  parent  is  not  bound  to  compensate  the  other  parent,  or  a  rela- 
tive, for  the  voluntary  support  of  his  child,  without  an  agreement  for  compen- 
sation, nor  to  compensate  a  stranger  for  the  support  of  a  child  who  has 
abandoned  the  parent  without  just  cause. 

209.  Husband  not  bound  for  support  of  wife's  children  by  former  marriage. 
Sec.  209.     A  husband  is  not  bound  to  maintain  his  wife's  children  by  a  for- 
mer husband;  but  if  he  receives  them  into  his  family  and  supports  them,  it  is 
l^resumed  that  he  does  so  as  a  parent,  and  where  such  is  the  case,  they  are  not 
liable  to  him  for  their  support,  nor  he  to  them  for  their  services. 

Step-father'3   rights  and  liabllitdea  with     to  a  person  standing  in  loco  parentis  generally, 
regard  to  step-children:  See  the  note  to  Will-     see  noto  to  Weaver  v.  Bachert,  44  Id.  1G7. 
iams  V.   Hutchinson,  53  Am.  Dee.  30G;  and  as 

210.  Compensation  and  support  of  adult  child. 

Sec.  210.  Where  a  child,  after  attaining  majority,  continues  to  serve  and  to 
be  supported  by  the  parent,  neither  party  is  entitled  to  compensation,  in  the 
absence  of  an  agreement  therefor. 

211.  Parent  may  relinquish  services  and  custody  of  child. 

Sec.  211.  The  parent,  whether  solvent  or  insolvent,  may  relinquish  to  the 
child  the  right  of  conti'olling  him  and  receiving  his  earnings.  Abandonment 
by  the  parent  is  presumptive  evidence  of  such  relinquishment. 

212.  Wages  of  minors. 

Sec.  212.  The  wages  of  a  minor  employed  in  service  may  be  paid  to  him 
until  the  parent  or  guardian  entitled  thereto  gives  the  employer  notice  that  he 
claims  such  wages.  [Amendment,  approved  March  30,  187^;  Amendments  1873- 
4,  194;   took  effect  July  1,  1874.] 

213.  Plight  of  parent  to  determine  residence  of  child. 

Sec.  213.  A  parent  entitled  to  the  custody  of  a  child  has  a  right  to  change 
his  residence,  subject  to  the  power  of  the  proper  court  to  resti'aiu  a  removal 
which  would  prejudice  the  rights  or  welfare  of  the  child. 

Residence,  husband's  right  to  change:  See  mde,  sec.  156. 

214.  Wfe  in  certain  cases  may  obtain  custody  of  minor  children. 

Sec.  214.  When  a  husband  and  wife  live  in  a  state  of  separation,  without 
being  divorced,  any  court  of  competent  jurisdiction,  upon  application  of  either, 
if  an  inhabitant  of  this  state,  may  inquire  into  the  custody  of  any  unmarried 
minor  child  of  the  maiTiage,  and  may  award  the  custody  of  such  child  to  either, 
for  such  time  and  under  such  regulations  as  the  case  may  require.  The  decis- 
ion of  the  court  must  be  guided  by  the  rules  prescribed  in  section  two  hundred 
and  forty-six. 

Custodyof  child  without  divorce  of  parents:  See  a?(/p,  sec.  199. 
Custody  of  cjild  penduig  d:vor.:;e  proceedings:  See  sec.  138. 

215.  (Jhild  legitimized  Inj  marriage  of  parents. 

Sec.  215.  A  child  born  before  wedlock  becomes  legitimate  by  the  subsequent 
marriage  of  its  parents.  [Xew  sect  tun,  approved  March  30,  181  ■i;  Amendmenla 
V6l-d-4,  195;  tou/c  effect  July  1,  1874.J 

52 


Trnj5  n,  Ckat.  H.]  ADOPTIOIT.  S§  221-22ff 

CHAPTER  H 

ADOPTION. 

221.  Child  may  be  aaopted. 

Sec.  221.  Any  minor  child  may  be  adopted  by  any  adult  persoiij  in  the  casea 
and  subject  to  the  rules  prescribed  in  this  chapter. 

222.  Who  may  adopt. 

Sec.  222.  The  person  adopting  a  child  must  be  at  least  ten  years  older  than 
the  person  adopted.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  195;  took  effect  July  1,  1874.  J 

223.  Consent  necesmry. 

Si.c.  223.  A  married  man,  not  lawfully  separated  from  his  wife,  cannot  adopt 
a  child  without  the  consent  of  his  wife;  nor  can  a  married  woman,  not  thus 
separated  from  her  husband,  without  his  consent,  provided  the  husband  or  wife, 
not  consenting,  is  capable  of  giving  such  consent.  [Amendment ^  approved 
Mardi  30,  1874;   Amendments  1873-4,  195;  took  effect  July  1,  1874.] 

224.  Consent  of  child's  parents. 

Sec.  224.  A  legitimate  child  cannot  be  adopted  without  the  consent  of  its 
parents,  if  living,  nor  an  illegitimate  child  without  the  consent  of  its  mother,  if 
living,  except  that  consent  is  not  necessary  from  a  father  or  mother  deprived  of 
civil  rights,  or  adjudged  guilty  of  adultei-y  or  of  cruelty,  and  for  either  cause 
divorced,  or  adjudged  to  be  an  habitual  drunkard,  or  who  has  been  judicially 
deprived  of  the  custody  of  the  child  on  account  of  cruelty  or  neglect. 

225.  Consent  of  child. 

Sec.  225.  The  consent  of  a  child,  if  over  the  age  of  twelve  years,  is  necessary 
to  its  adoption. 

226.  Proceedings  on  adoption. 

Sec.  22G.  The  person  adopting  a  child,  and  the  child  adopted,  and  the  other 
persons,  if  within  or  residents  of  this  state,  whose  consent  is  necessary,  must 
appear  before  the  judge  of  the  superior  court  of  the  county  where  the  person 
adopting  resides,  and  the  necessary  consent  must  thereupon  be  signed,  and  an 
agreement  be  executed  by  the  jjerson  adopting,  to  the  e£fect  that  the  child  shall 
be  adopted  and  treated  in  all  respects  as  his  own  lawful  child  should  be  treated. 
If  the  persons  whose  consent  is  necessaiy  are  not  within  or  are  not  residents 
of  this  state,  then  their  written  consent,  duly  proved  or  acknowledged  accord- 
ing to  sections  eleven  hundred  and  eighty-two  and  eleven  hundred  and  eighty- 
three  of  this  code,  shall  be  filed  in  said  superior  court  at  the  time  of  the  appli- 
cation for  adoption.  [Amendment,  approved  April  G,  1880;  Amendments  1880,  4 
{Hun.  ed.  122);  took  effect  immediately.] 

2.21.    Judge's  order. 

Sec.  227.  The  judge  must  examine  all  persons  appearing  before  him  pursu- 
ant to  the  last  section,  each  separately,  and  if  satisfied  that  the  interests  of  the 
child  will  be  promoted  by  the  adoption,  he  must  make  an  order  declaring  that 
the  child  shall  thenceforth  bo  regarded  and  treated  in  all  respects  as  the  child 
of  the  person  adopting. 

228.    Effect  of  adoption — Eights  and  duties. 

Sec.  228.  A  child,  when  adopted,  may  take  the  family  name  of  the  person 
adopting.     After  adoption,  the  two  shall  sustain  towards  each  other  the  legal 

53 


S§  229-238 


PERSONAL  RELATIONS. 


Ptv.  I,  Paut  in. 


relation  of  parent  and  child,  and  have  all  the  rights  and  be  subject  to  all  the 
duties  of  that  relation.     [Amend mejit,  approved  March  30,  1874;  AmendmerU* 
1873-4,  195;  loofc  ejfecl  Juhj  1,  1874.] 
Effect  of  adoption:  See  under  •'Children"  in  note  to  sec  193. 

229.  Eff'ect  on  former  relations  of  child. 

Seo.  229.  The  parents  of  an  adopted  child  are,  from  the  time  of  the  adox)- 
tion,  relieved  of  all  parental  duties  towards,  and  all  responsibility  for,  the  child 
BO  adopted,  and  have  no  right  over  it. 

230.  Adoption  of  illegitimate  child. 

Sec.  230.  The  father  of  an  illegitimate  child,  by  publicly  acknowledging  it 
as  his  own,  receiving  it  as  such,  with  the  consent  of  his  wife,  if  he  is  married, 
into  his  family,  and  otherwise  treating  it  as  if  it  were  a  legitimate  child,  thereby 
adopts  it  as  such;  and  such  child  is  thereupon  deemed  for  all  purposes  legiti- 
mate from  the  time  of  its  birth.  The  foregoing  provisions  of  this  chapter  di) 
not  apply  to  such  an  adoption. 


Legitimating  child  by  aclinovyledgment. 
Coinijare  the  abnve  section  with  section  1387, 
which  provides  for  legitimating  a  child  by 
making  an  acknowledgment  in  writing  that 
such  child  is  the  declarant's.  The  writing  must 
be  in  itself  sufficient;  must  state  that  the  child 
is  illegitimate,  and  that  the  father  acknowl- 
edges his  paternity:  Piita  v.  Peck,  31  Cal.  359. 

Section  230  applies  only  to  the  case  of  a 
minor  child:  See  Estate  of  Pico,  52  Cal.  84; 
S.  C,  5()  Id.  413.  Section  1387  reaches  the 
cases  of  adults:  E.flate  of  Pico,  supra.  Section 
230  is  not  retroactis'e:  Id. 

In  their  draft  of  this  code  the  commissioners 
say:  "  This  provision,  like  the  rest,  is  new,  but 
is  so  manifestly  just,  and  the  present  state  of 
the  law  is  so  unmerciful  to  innocent  chihlren, 
that  it  is  presumed  that  no  objection  will  be 
made  to  the  change.     The  seducer  cau  make 


reparation  to  the  mother  of  his  child,  tliough 
she  is  more  or  less  culpable,  but  can  at  present 
make  absolutely  none  to  the  child,  though  per- 
fectly innocent.  By  the  law  of  France,  and  of 
almost  every  European  nation,  and  in  thia 
country  by  the  laws  of  Maine,  Vermont,  Mas- 
sachusetts, Connecticut,  Ohio,  Illinois,  Indiana, 
Maryland,  Virginia.  Georgia,  Alabama,  Missis- 
sippi, Louisiana,  Kentucky,  and  Missouri,  a 
child  is  legitimized  by  the  marriage  of  its  pa- 
rents after  its  birth.  Privacy  is  an  indispensa- 
ble element  of  such  an  adoption.  To  compel 
the  father  to  appear  before  a  judge,  or  in  any 
way  to  place  the  matter  upon  record,  would 
brand  the  child  with  the  very  stigma  which  a 
repentant  father  would  desire  to  save  it." 
"Our  statute  of  1870  was  simply  adopting  thia 
chapter  of  the  New  York  civil  code  iu  ad* 
vance." 


TITLE  III. 
GUARDIAN  AND  WAED. 

"Under  this  heaa  are  placed  not  only  the  pro-  and  care  of  persons  of  unsound  mind.  Tha 
visions  of  law  relatiiig  to  the  guardianship  of  'committee'  of  a  lunatic  is  here  termed  a 
minors,  but  also  those  relating  to  the  custody     'guardian:'"  Commissioners'  note. 

23G.    Guardian,  what. 

Sec.  230.  A  guardian  is  a  person  appointed  to  take  care  of  the  person  or 
property  of  another. 

237.    Ward,  what. 
Sec.  237.    The  person  over  whom  or  over  whose  property  a  guardian  is 

appointed  is  called  his  ward. 

233.    Kinds  of  guardians. 

Sec  233.     Guardians  are  either: 

1.  General;  or, 

2.  Special. 

"CDmmoa-law  guardians. — Bouvier,  tit. 
Guardian,  dedues  guar  liau  to  bj  one  who 
legally  has  the  care  and  inaui'jemTUt  of  t'le 
person  or  the  estate,  or  b  ith,  of  a  ohdd  daring 
Its  minority:  Reeve's  Doin.  IIjI.  311.     Such  a 


person  is  known  in  the  civil  law  by  the  nam« 
of  c'.irator:  1  Sec.  El  da  Droit  Civ.  Ri)m.  241. 
There  wjro  four  kinds  of  guardians  at  common 
law,  calle  1  re3;')ectively  guardians  by  nature, 
guardians  for  nurture,  guardians  in  socage,  and 


54 


Title  III.l  GUARDIAN  AND  WARD.  §§  23£)-243 

guardians  in  chivalry.     The  guardians  by  na-  twenty-one  years  if  a  male,  and  sixteen  if  a 

ture  were    tlie    father,   and  in  some  cases  the  female,  and  related  to  both  person  and  estate, 

mother,  of  the  children;  guardians  for  nurture  witliout   any   obligations    to   account   for  tho 

•were  also  the  father  or  mother,  and  continued  profits  of  tlie  latter:   1  Bla.  Com.,  c.  17;  2  Id. 

until  the  child  attained   tiie  age  of  fourteen  c.  5.     These  guardians  were  a])poiiited  or  desig- 

years;  guardianship  in  socage  took  place  only  nated  by  tlie  coinmon   law  itself,  except  that 

when  the  infant  was  entitled  to  an  estate  in  the  chancellor,  by  virture  of  his  autJiority  as 

lands  by  descent,  and  the  next  of  kin,  to  whom  representative  of  the  king,  who  was  tlie  parem 

the  estate  could  not  possibly  descend,  became  /ja^/v'ct,  and  as  such  the  guardian  of  all  the  infanta 

the  guardian  in  socage.     Guardianship  in  soc-  in  the  kingdom,  was  allowed  to  appoint  guar- 

age,  like  that  for  nui  ture,  continued  only  until  dians  to  such  infants  as  were  without  guardianii 

the  infant  was  fourteen  years  of  age,  at  which  at  common  law:  Lord  v.  llouijh,  37  Cal.  GGO:"* 

age  he  was  pre.';umed  to  have  attained  sufficient  Cotnmissioners'  note. 

discretion  and  judgment  to  choose  a  guardian        Testamentary  gucirdians:  See  sec.  241,  and 

for  himself,  and  therefore  was  allowed  to  do  so,  note. 

subject,  however,  to  the  approval  of  the  court         Guardian  de  son    tort. — One   wrongfully 

of  chancery,     (hiardianship  in  socage  included  intermeddling  with  tlie  property  of  an  infant  ia 

the  custody  .and  care  of  both  the  person  and  sometimes  in  equity  held    a  guardian  de  «o» 

estate  of  tlie  infant.     Guardianship  in  chivalry  tori  for  the  jiurpose  of  an  accounting,  but  he 

was  a  feature  of  the  feudal  system,  and  took  acquires   none   of    the   rights   of  a  guardian: 

place  when  lands  came  to  an  infant  by  descent  Aldridi  v.    II  t/i/.s,  55  Cal.  81. 
•which  were  held  by  knight  service.      It  con-         Guardians  ad  litem:  See  Code  Civ.  Proc, 

tinued   until  the   infant  attained  the  age  of  sees.  37'-,  373. 

239.  General  guardian,  what. 

Sec.  239.  A  general  guardian  is  a  guardian  of  the  person  or  of  all  the  proj)- 
erty  of  the  ward  "within  this  state,  or  of  both. 

240.  Special  guardian,  what. 

Sec.  240.     Ever^^  other  is  a  special  guardian. 

2'41.    Appointment  of  guardian  by  will  or  by  deed. 

Sec.  241.  A  guardian  of  the  person  or  estate,  or  of  both,  of  a  child  born,  or 
likely  to  be  born,  may  be  appointed  by  will  or  by  deed,  to  take  effect  upon  the 
death  of  the  parent  appointing: 

1.  If  the  child  be  legitimate,  by  the  father,  with  the  written  consent  of  the 
mother;  or  by  either  parent,  if  the  other  be  dead  or  incapable  of  consent; 

2.  If  the  child  be  illegitimate,  by  the  mother.     [Amendment,  approved  March 

30,  1874;  Amendmenls  1873-4,  195;  took  effect  July  1,  1874.] 

Testamentary   guardian. — An  interesting  law    of    testamentary    guardianship    will    bo 

eketcli  of  the  orii^iii  of  this  species  of  guardian  found. 

is  given  by  Judge  Sanderson  in />or</ V.  //o?<f/A,         A   testamentary  guardian   cannot  act  until 

37  Cal.  6t)7,  in  which  he  upheld  the  mother's  he  receives  his  letters:    Aldrich   v.    WUlis,  55 

right   to   the  guardianship  of   the   child,  she  Cal.  81;    Wad-nvorth  v.   Comtell,   104    111.   369. 

'being  a  proper  person   therefor,  as  against  a  But  see  Xorris  v.  Harris,  15  Id.  22G;  and  see. 

testamentary    appointment    of     the     father's  1747,  Cotle  Civ.  Proc. 

mother.     In  a  note  to  Matter  of  Van  J/outm,        Bond   of   testamentary   guardian:    Code 

29  Am.  Dec.  712,  a  valuable  summary  of  the  Civ.  l^roc,  sec.  1758. 

242.  No  pemon  guardian  of  estate  without  appointment. 

Siic.  242.     No  person,  whether  a  parent  or  otherwise,  has    any  power   aa 

guardian  of  property',  except  by  appointment,  as  hereinafter  provided. 

Guajdlaushlp  by  nature  extends  only  to  Coast  Rep.  421.    Same  principle  is  expressed  in 

the  custody  of  the  jierson,  and   does   not  as  section  202,  ante.    And  as  to  power  of  guardian 

such  entitle  the  guardian  to  manage  the  prop-  appointe<l  by  the  court,  see  sec.  247,  infra. 
erty:  /vV<.(/a// v.  iV/Z/rr,  9  Cal.  591.    The  mother        Guardian  do  son  tort:  See  aujjra,  iu  note . 

has  no  jiower  as  natural  guardian  to  sell  her  to  sec.  238. 
child's  realty :  McNeil  v.  First  Cou'j.  Soc. ,  4  West 

243.  Appointment  of  guardian  by  court. 

St'.c.  243.     A  guardian  of  the  person  or  property,  or  both,  of  a  person  residing; 
in  this  state,  who  is  a  minor,  or  of  unsound  mind,  may  be  appointed  in  all? 
cases,  other  than  those  named  in  section  two  hundred  and  forty-one,  by  the  ■ 
superior  court,  as  provided  in  the  Code  of  Civil  Procedure.     \  Amendment,  ap- 
proved April  G,  188U;  Amendments  1880,  4  {Ban.  ed.  123);  took  effect  immediately .\ 


f§  244-249  PERSONAL  RELATIONS.  [Biv.  I,  Part  III, 

Judicial  appointment  Of  guardian  of  mi-  sane  or  incompetent  persons:  See  Code  Civ. 
tl6r:  Set!  (Jo<le  Civ.  I'roc,  sec.  1747.  I'roc,  sec.  17(i3. 

Judicial  appointment  of  guardian  of  in- 

244.  Same. 

;  Sec.  244.  A  guardian  of  the  property  within  this  state  of  a  person  not  residing 
therein,  who  is  a  minor,  or  of  unsound  mind,  may  he  appointed  by  the  superior 
court.  [Anumdment,  approved  April  G,  1880;  Amendinenki  1880,  4;  {Ban.  ed. 
123);  t<Jok  effect  immediald;/.] 

Non-resident  -wards,  appointment  of  guardian:  See  Code  Civ.  Proc,  sees.  1793  et  seq. 

245.  Jurisdiction. 

Stc.  245.  In  all  cases  the  court  making  the  appointment  of  a  guardian  haa 
exclusive  jurisdiction  to  control  him. 

•  "Tile  pi-dliate  court  formerly  could  not  com-  support:  Sirift  v.  Swiff.,  40  Cal.  456.  But  it  is 
pel  a  guard ian  to  advance  out  of  the  estate  of  otherwise  now:  See  Code  Civ.  Proc,  sec.  1771:" 
tlie  ward  the  sums  necessary  for  the  ward's     Commissioner's  note. 

246.  Iiules  for  awarding  custody  of  minor. 

Sec.  24G.  In  awarding  the  custody  of  a  minor,  or  in  appointing  a  general 
^ardian,  the  court  or  officer  is  to  be  guided  by  the  following  considerations: 

1.  Jjj  what  appears  to  be  for  the  best  interest  of  the  child  in  respect  to  its 
temporal  and  its  mental  and  moral  welfare;  and  if  the  child  be  of  a  sufficient 
age  to  form  an  intelligent  preference,  the  court  may  consider  that  preference  in 
-determining  the  question; 

2.  As  between  parents  adversely  claiming  the  custody  or  guardianship, 
neither  parent  is  entitled  to  it  as  of  right;  but,  other  things  being  equal,  if  the 
child  be  of  tender  j^ears,  it  should  be  given  to  the  mother;  if  it  be  of  an  age 
to  require  education  and  preparation  for  labor  and  business,  then  to  the  father; 

.  3.  Of  two  persons  equally  entitled  to  the  custody  in  other  respects,  prefer- 
ence is  to  be  given  as  follows: 

1.  To  a  parent; 

2.  To  one  who  was  indicated  by  the  wishes  of  a  deceased  parent; 

3.  To  one  who  already  stands  in  the  position  of  a  trustee  of  a  fund  to  be 
applied  to  the  child's  support; 

4.  To  a  relative.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  196;  took  effect  July  1,  1874.] 

Custody  of  children  generally,  pending  divorce:  See  sec.  13S;  without  divorce,  see  sec3. 
199,  214. 

247.  Powers  of  guardian  appointed  by  court. 

Sec  247.     A  guardian  appointed  by  a  court  has  power  over  the  person  and 
property  of  the  ward,  unless  otherwise  ordered. 
Property  of  v^ard,  control  over:  See  sec.  242,  and  note. 

248.  Duties  of  guardian  of  the  person. 

Sec  248.  A  guardian  of  the  person  is  charged  with  the  custody  of  the  ward, 
and  must  look  to  his  support,  health,  and  education.  He  may  fix  the  residence 
of  the  ward  at  any  place  within  the  state,  but  not  elsewhere,  without  permission 
of  the  court. 

Compare  sec.  251. 

249.  Duties  of  guardian  of  estate. 

Sec  249.  A  guardian  of  the  property  must  keep  safely  the  property  of  his 
ward  He  must  not  permit  any  unnecessary  waste  or  destruction  of  the  real 
property,  nor  make  aay  sale  of  such  property  without  the  order  of  the  superior 
court,  but  must,  so  far  as  it  is  in  his  power,  maintain  the  same,  with  its  build- 

-)« 


Title  HT.]  GUARDIAN  AND  WARD,  §§  250-255 

ings  and  appurtenances,  out  of  the  income  or  other  property  of  tLe  estate,  and 
deliver  it  to  the  ward  at  the  close  of  his  guardianship  in  as  good  condition  as 
he  received  it.  [Amendment,  approved  April  6, 1880;  Amendments  1880,  5  {Ban, 
ed.  123);  toolc  effect  immediatehj.] 

S-ilo  of  award's  estate:  See  Code  Civ,  Proc,  Dec.  657,  where  decisions  and  principles  are 
sees.  1777  it  seij.  collated.    See  also  similar  provision.  Cod©  Civ. 

Guardian  using  principal  as  well  as  in-    Proc,  sec.  1770. 
comc:  See  a  note  in  Villard  v.  Robert,  49  Am, 

250.  Rdfdion  confidential. 

Sec.  250.     The  relation  of  guardian  and  ward  is  confidential,  and  is  subject  to 
the  provisions  of  the  title  on  trust. 
Trusts:  See  po.s<,  sees.  2215  et  seq. 

251.  Guardian  under  direction  of  court. 

Sec  251.     In  the  management  and  disposition  of  the  person  or  property  com- 
mitted to  him,  a  guardian  may  be  regulated  and  controlled  by  the  court. 
Residence  of  vsrard:  See  sec.  24S,  ante. 

252.  Death  of  a  joint  guardian. 

Sec.  252.     On  the  death  of  one  of  two  or  more  joint  guardians,  the  power 
continues  to  the  survivor  until  a  further  appointment  is  made  by  the  court. 
Survival  of  trust:  See.  sec.  22S8,  2>os<. 

253.  liemoval  of  guardian. 

Sec.  253.     A  guardian  may  be  removed  by  the  superior  court  for  any  of  the 

following  causes: 

1.  For  abuse  of  his  trust; 

2.  For  continued  failure  to  perform  its  duties; 

3.  For  incapacity  to  perform  its  duties; 

4.  For  gross  immorality; 

5.  For  having  an  interest  adverse  to  the  faithful  performance  of  his  duties: 
C.  For  removal  from  the  state; 

7.  In  the  case  of  a  guardian  of  the  property,  for  insolvency;  or, 

8.  When  it  is  no  longer  proper  that  the  ward  should  be  under  guardianship. 
[Amendment,  approved  April  G,  1880;  Amendments  1880,  5  {Dan.  ed.  123);  took 
effet  t  im  m  ediutehj.  ] 

Removal  of  guardian. — The  power  of  re-  provide  for  tlieir  support  and  education,  is  not 
moving  a  gnaidi  n  is  given  both  by  this  section  a  suitable  person,  and  should  be  renioved:  lie 
and  by  scclion  ISOl  of  the  Code  of  Civil  IVo-     tiw[ft,  47  Cal.  GJ9. 

cedure.  Tliis  jowcr  may  be  exercised  at  cliani-  After  removing  a  guardian  tlie  court  may 
bers:    Warder  v.  Elkins,  SS  Cal.  442.  settle  his  accounts:  Gntff  v.  Me-isner,  52  Cal. 

A  fatluT  who,  as  guardian  of  his  minor  chil-     G^iG. 
dren,  is  in  receipt  of  an  annual  income  of  two         Presumptions  are  in  favor  of  the  regularity 
thousand  dol'ai'S  from  their  propeily,  and  who     of  tiie  probate  court  iu  reinoviiig  a  guardian: 
refuses,  through  a  period  of  several  years,  to     Brodribb  v.  Tibbils,  G3  Cal.  SO. 

2o4.    Guardian  appointed  bij  parent,  hoio  superseded. 

Sec  254.     The  power  of  a  guardian  appointed  by  a  parent  is  superseded: 

1.  By  his  removal,  as  provided  by  section  two  hundred  and  fifty-three; 

2.  By  the  solemnized  mamage  of  the  ward;  or, 

3.  By  the  ward's  attaining  majority. 

Mauriaso  of  wsird  terminates  guardianship:  Code  Civ.  Proc.,  sec.  1802. 

255.    Guardian  appointed  by  court,  li>no  suspended. 

Sec  255.     The  power  of  a  guardian  appointed  by  a  court  is  suspended  onlyi 

1.  By  order  of  the  court;  or, 

2.  If  the  appointment  was  made  solely  because  of  the  ward's  minority,,  by  his 
attaining  uiajurity;  or, 

57 


<§§  256-264  PERSONAL  RELATIONS.  [Biv.  I,  Part  m, 

3.  The  guardianship  over  the  person  of  the  ward,  by  the  marriaj'e  of  the 
•ward.  [Anicndm'cnt,  approved  March  30,  1874;  Amendments  1873-4,  197;  look 
effect  Jahj  1,  1874.) 

Marriage  of  ward  termiuates  guardianship:  Code  Civ.  Proc,  sec.  1802. 

256.  Belease  by  ward. 

Sec.  256.  After  a  ward  Has  come  to  his  majority,  he  may  settle  accounts 
-with  Lis  guardian,  and  give  him  a  release,  which  is  valid  if  obtained  fairly  aud 
Avitliout  undue  influence. 

Release  by  -weird. — The  niles  concerning  that  the  ward  had  full  opiwrtunity  to  examine 

dealings  between  f^uardian  and  ward  are  very  the  accounts,  either  by  himself,  if  ho  was  able 

«tringeut.     So  intimate  is  their  relation  that  to  understand  them,  or  by  the  aid  of  some  coni- 

ruany  authorities  pronounce  voidable  all  trans-  potent  adviser  or  attorney:  Id.,  in  note;  Fixh  v. 

actions  between  them  that  are  for  the  guardian'3  Miller,  1  Hoffm.  Ch.  267;  In  re  Van  J  tome,  7 

benefit:    See  2  Pomeroy's  Eq.  Jur.,  sec.  961.  Paige,  46;  Stanley's  Appeal,  B>  Ta.  St.  4.'il;  Say 

Especially  is  this  so  in  the  case  of  settlements  v.  Barnes,  4  Serg.  &  R.  112;    Waller  v.  Armi- 

by  the  guardian  with  his  ward.     The  guardian  siead,  2  Leigh,  11;  Garvin  v.  Williams,  44  Mo. 

must  prove  not  only  an  absence  of  undue  influ-  465. 
«Qce,  and  perfect  fairness  and  good  faith,  but 

257.  Gaardian's  discharge. 

Sec.  257.  A  guardian  appointed  by  a  court  is  not  entitled  to  his  discharge 
Tintil  one  year  after  the  ward's  majority. 

Resignation  of  guardian:  See  Code  Civ.  Proc,  sec.  1801. 

258.  Insane  persons. 

Sec.  258.  A  person  of  unsound  mind  may  be  placed  in  an  asylum  for  such 
persons,  upon  the  order  of  the  superior  court  of  the  county  in  which  he  resides, 
as  follows: 

1.  The  court  must  be  satisfied,  upon  examination  in  oi)en  court,  and  in  the 
presence  of  such  persons,  from  the  testimony  of  two  reputable  physicians,  that 
such  person  is  of  unsound  mind,  and  unfit  to  be  at  large; 

2.  After  the  order  is  granted,  the  person  alleged  to  be  of  unsound  mind,  his 
or  her  husband  or  wife,  or  relative  to  the  third  degree,  or  any  citizen,  may 
demand  an  investigation  before  a  jury,  which  must  be  conducted  in  all  respects 
as  under  an  inquisition  of  lunacy.  [Amendment,  approved  April  G,  1880;  Amend' 
merits  1880,  5  [Ban.  ed.  124);  took  effect  immediately.] 

Guardianship  of  lunatic  :  See  Code  Civ.  Imprisonment  of  insane  persons :  See 
Proc,  sec.  1703.  Cooley  on  Torts,  sees.  176  et  seq. 


TITLE  IV. 

MASTER  AND  SERVANT. 

At  the  conclusion  of  this  title  the  commis-  last  two  sections,  which  provided  for  special 

sioners   appended    a   note,  which  read  as  fol-  remedies." 

lows:    "This  title  [Master  and  Servant]  is  a  Employer  and  enq>loyee:  See,  generally^ 

literal  copy  of  the  statutes  of  1858,  save  the  sees.  1965  et  sec^. 

264.   Mbwrs  may  apprentice  tliemselves. 

Sec.  2G4.  Every  minor,  with  the  consent  of  the  persons  or  ofiBcers  herein- 
after mentioned,  may,  of  his  own  free-will,  bind  himself,  in  writing,  to  serve  as 
clerk,  apprentice,  or  servant,  in  any  profession,  trade,  or  employment,  during 
Lis  minority;  and  such  binding  shall  be  as  valid  and  effectual  as  if  such  minor 
was  of  full  age  at  the  time  of  making  the  engagement. 

Contracts  of  apprenticeship  must  be  exe-  ive  rights  and  duties  of  master  and  apprentice 
cuted  ill  accorilauce  with  tlie  requisites  of  the  wi!l  be  found  inSchoulerou  Dom.  llel.,  3ded., 
fitatute:  I'helpx  v.  PilUbuiyh  etc.  li.  R.  Co.,  99    sec.  437. 

Pa.  St.  IDS.     A  very  comprehensive  statement        Master  and  servant  generally:  See  post, 
of  some  of  the  priuciples  aii'ecting  the  respect-     sec.  20J9. 

58 


Title  IV.]  MASTER  AND  SERVANT.  ^  26&-270 

265.  Covsenf  of  pnrent-i,  etc.,  requviile. 
Sec.  2G5.  Such  consent  shall  be  given: 

1.  By  the  father  of  the  minor.  If  he  be  dead,  or  be  not  of  legal  capacity  to 
give  his  consent,  or  if  he  shall  have  abandoned  or  neglected  to  provide  for  his 
family,  and  such  fact  be  certified  by  a  justice  of  the  peace  of  the  township  or 
county,  or  sworn  to  by  a  credible  witness,  and  such  certificate  or  afiidavit  be 
indoi'sed  on  the  indenture;  then, 

2.  By  the  mother.  If  the  mother  be  dead,  or  be  not  of  legal  capacity  to 
give  such  consent  or  refusal;  then, 

3.  By  the  guardian  of  such  infant.  If  such  infant  have  no  parent  living,  or 
none  in  a  legal  capacity  to  give  consent,  and  there  be  no  guardian;  then, 

4.  By  the  supervisors  of  the  county,  or  any  two  justices  of  the  peace,  or  the 
judge  of  the  superior  court  of  the  county; 

5.  If  such  minor  be  an  oi'phan,  under  the  care  and  control  of  any  orphan 
asylum  in  this  state,  then  by  the  board  of  managers  thereof.  [Amendment, 
approved  April  G,  1880;  Amendments  1880,  5  {Ban.  ed.  124);  took  effect  immediately.] 

An  Act  to  authorize  Che  managers  of  orphan  asylums  to  give  their  consent  to  the  adoption  of  certain 

children  uudfr  their  care. 
[Approved  April  1.  1878;  1877-S.  963.) 
Atithoriziiig  mawMjers  to  consent  to  adoption  of  children. 

Section  I.  The  managers  of  the  several  orpljan  asylums  in  this  state  are  hereby  authorized 
and  empowered  to  consent  to  the  ado^jtion  of  any  orplian  child,  or  child  abandoned  by  its 
parents,  in  tlie  aanie  manner  that  parents  are  Ity  law  authorized  to  consent  to  tlie  adoption  of 
their  cliildren;  jirovided,  however,  that  such  orphan  cliild,  or  child  abandoned  by  iis  parents, 
shall  have  hcen  in  the  charge  and  under  the  management  of  the  managers  of  such  orplian  asylum 
for  the  j)t'riod  of  one  year  prior  to  such  adoption,  and  during  that  period  supported  wholly  at 
tlie  e.  jieuse  of  said  asylum. 

Sec.  2.     This  act  sliall  take  effect  from  the  date  of  its  passage. 

266.  Writ/en  consent. 

Sec.  2G6.  Such  consent  shall  be  signified  in  writing  by  the  person  entitled 
to  give  the  same,  by  certificate  at  the  end  of,  or  indorsed  upon,  the  indentures. 

267.  Executors  may  bind. 

Sec.  2G7.  The  executors  of  any  last  will  of  a  parent,  who  shall  be  directed  in 
sucli  will  to  bring  up  his  or  her  child  to  some  trade  or  calling,  may  bind  such 
child  to  sei-vice  as  a  clerk  or  apprentice,  in  like  manner  as  the  father  might 
have  done  if  living.  If  there  is  a  surviving  mother,  her  consent  also  is 
necessary. 

268.  Supervisors  may  hind  out. 

Sec.  2G8.  The  supervisors  of  the  county  may  bind  out  minors  who  are  or 
shall  become  chargeable  to  such  county,  to  be  clerks,  apprentices,  or  servants, 
which  binding  shall  be  as  efi'ectual  as  if  such  minors  hud  bound  themselves 
with  the  <'onseut  of  their  father. 

269.  Town  officers. 

Sec.  2G9.  In  every  town  or  city  the  presiding  officer  of  the  first  council  or 
legislative  board  thereof,  if  there  be  more  than  one,  or  any  public  officer  or 
officers  appointed  to  provide  for  the  poor,  may  in  like  manner  bind  out  any 
child  who,  or  whose  parents  are,  chargeable  to  any  such  town  or  city. 

270.  Age  of  apprentice  to  he  inserted  in  indentures. 

Sec  270.  The  age  of  eveiy  infant  so  bound  shall  be  inserted  in  the  inden- 
tures, and  shall  be  taken  to  be  the  true  age;  and  whenever  public  officers  are 
authorized   to  execute  any  indentures,   or   their   consent  is  required   to   the 

59 


'§§  'Ti  1-276  PERSONAL  RELATIONS.  [Div.  I,  Part  m, 

validity  of  tlie  same,  it  shall  be  their  duty  to  inform  themselves  fully  of  the 
infant's  age. 

271.  Indeittures,  conditions  in. 

Sec.  271.  Every  sura  of  money  paid  or  agreed  for,  with  or  in  relation  to  the^ 
binding  out  of  any  clerk,  apprentice,  or  servant,  shall  be  inserted  in  the  inden- 
tures. 

272.  Same. 

Sec.  9,12.  The  indenture  shall  also  contain  an  agreement,  on  the  part  of  the 
person  to  whom  such  child  shall  be  bound,  that  he  will  cause  such  child  to  be 
instructed  to  read  and  write,  and  to  be  taught  the  general  rules  of  arithmetic, 
or,  in  lieu  thereof,  that  he  will  send  such  child  to  school  three  months  of 
each  year  of  the  period  of  indenture. 

273.  Deposit  of  indenture. 

Sec.  273.  The  counterpart  of  any  indenture  executed  by  any  county,  or  city, 
•or  town  officers  must  be  by  them  deposited  in  the  office  of  the  county  clerk. 
[Ame)idinerit,  approved  April  6,  1880;  Amendments  1880,  6  {Ban.  ed.  121);  took 

■effect  immediately.] 

274.  Alien  minors. 

Sec  274.  Any  minor  capable  of  becoming  a  citizen  of  this  state,  coming 
■from  any  other  country,  state,  or  territory,  may  bind  himself  to  service  until  his 
majorit}',  or  for  any  shorter  terra.  Such  contract,  if  made  for  the  purpose  of 
raising  money  to  pay  his  passage,  or  for  the  payment  of  such  passage,  may  be 
for  the  term  of  one  year,  although  such  term  may  extend  beyond  the  time  when 
fiuch  person  will  be  of  full  age,  but  it  shall  in  no  case  be  for  a  longer  term. 

275.  Contract  under  preceding  section  to  be  acknowledged. 

Sec  275.  No  contract  made  under  the  preceding  section  shall  bind  the  ser- 
vant, unless  duly  acknowledged  by  the  minor,  before  some  public  magistrate  or 
other  officer  authorized  to  administer  oaths,  nor  unless  a  certificate,  showing 
that  the  same  was  made  freely,  on  private  examination,  be  indorsed  upon  the 
contract. 

278.    Causes  for  annulling  indentures. 

Sec.  27G.     Such  indentures  of  apprenticeship  may  be  annulled  for: 

1.  Fraud  in  the  contract  of  indenture; 

2.  When  such  contract  is  not  made  or  executed  in  accordance  with  the  pro- 
visions of  this  title; 

3.  For  willful  non-fulfillment,  by  such  master,  of  the  provisions  of  such 
indenture; 

4.  Cruelty  or  maltreatment  of  such  apprentice  by  the  master.  In  such  case, 
the  apprentice  may  recover  for  his  services. 

An  Act  relative  to  apprenticen  and  masters. 
[Approved  April  3, 1870;  1875-C,  842.] 
Minors  may  he  apprenticed. 

Skction  1.     A  1  minors,  at  the  age  of  fourteen  years,  may  be  bound  by  covenant  or  inden- 
ture, ill  conformity  witli  t'.ie  stipulations  herein  speciaed,  to  any  mecliaiiical  tra^le  or  art,  or  the 
occupation  of  farming,  as  apprentices;  males  to  tke  age  of  tweuty-oue  years,  and  females  to  the 
age  of  eighteen. 
Minors  mail  hr  apprenticed,  by  whom. 

Sec.  "2.  Minors,  at  or  above  tiie  age  of  fourteen  years,  may  be  bound  by  the  father,  or  in  case 
of  his  (leatli,  incompetency,  or  where  he  shall  have  willfully  abandoned  his  family  for  one  year, 
without  mikiuf^  suitable  provision  for  their  support,  or  lias  become  an  lial)itual  <lrunkard, 
vagrant,  etc.,  then  by  their  mother,  or  by  their  legal  guardian;  and  if  illegitimate,  they  may  be 
bound  by  their  mother;  aud  if  they  have  no  parent  competent  to  act,  and  no  guardian,  they 

60 


Title  IV.]  MASTER  AND  SERVANT.  §276- 

may  lincl  themselves,  with  the  approbation  of  the  superior  court  of  the  county  where  they 
reside;  hut  the  [)Ower  of  a  mother  to  bind  her  children,  whether  legitimate  or  illegitimate,  shall 
cease  upon  Iier  subseciuent  marriage,  and  shall  not  be  exercised  by  herself  or  her  husband,  at 
any  time  during  hei-  marriage,  without  liie  approval  of  the  superior  court  of  the  county  whcreia 
she  or  he  ri_siiifs.  [A  nuiidmenl,  approved  April  9,  ISbO;  AmendmeiUn  1880,  28  (Ban.  ed.  177); 
took  effect  iinmed'intely.\ 
C<ynnpjit  of  minor  necessary. 

Sec.  3.  In  all  cases  the  consent  of  the  minor,  personally,  ia  required  as  a  party  to  the  cove- 
nant, and  should  be  so  expressed  iu  the  indenture,  and  testified  by  his  or  her  signing  the  same. 
Ind'Htwes, 

Rkc.  4.  Indentures  shall  be  signed,  sealed,  and  delivered,  in  duplicate  copies,  in  the  presence 
of  all  the  parties  concerned;  and  when  made  witii  tiie  approbation  of  the  superior  court,  or  th© 
judge  thereof,  in  vacation,  such  approbation  shall  be  certified  in  writing',  indorsed  upon  each 
copy  of  the  indenture.  One  copy  of  the  indenture  shall  be  kept  for  the  use  of  the  "minor  by  his 
parent  or  guardian  (when  executed  by  them  respectively),  but  when  made  with  the  r-pprobation 
of  the  court,  it  shall  be  dejiosited  in  the  safe-keci)ing  of  the  clerk  of  said  court  for  the  use  of 
the  minor.  The  other  copy  shall  be  held  by  the  master,  and  delivered  up  by  him  to  the  appren« 
tice  at  the  expiration  of  his  term  of  service.  [Ainendment,  approved  Aprd  9,  1880;  Amend' 
meiita  1880,  28  (Bun.  ed.  178);  look  effect  imniediuleli/.] 
Same. 

Sec.  5.     No  indenture  of  apprentice,  made  in  pursuance  of  this  act,  shall  bind  the  minor  after 
the  death  of  his  master;  but  the  apprenticeship  shall  be  thenceforth  discharged,  and  the  minor 
may  be  bound  out  anew. 
Bame. 

Skc.  6.  Facts  of  incapacity,  desertion,  drunkenness,  vagrancy,  etc.,  shall  he  decided  in  the 
eaid  court  by  a  jury,  before  the  indenture  shall  take  efTect,  and  an  indorsement  on  liie  inden- 
ture, under  seal  of  the  court,  that  the  charge  or  c  larges  are  proved,  shall  be  suiBcient  evidence 
of  the  mother's  power  to  give  such  consent;  but  if  the  jury  do  not  find  the  char:,'e  or  charges  to 
be  true,  the  persim  at  whose  instance  such  proceedings  may  have  been  had  shall  pay  all  costs 
attending  the  same.  [Amendment,  approved  April  9,  1880;  Amendments  1880,  28  (Ban.  ed. 
178);  look  effect  immediately. \ 
Executor  may  hind. 

Sec.  7.     Tlic  executor,  who  by  the  will  of  a  father  is  directed  to  bring  up  his  child  to  a  trade 
or  calling,  shall  have  power  to  bind  such  by  indenture  iu  like  manner  as  the  father,  if  living, 
might  have  done. 
Snjierior  court  mny  hind. 

Sec.  8.  When  any  minor  who  is  poor,  homeless,  chargeable  to  the  county,  or  nn  outcast, 
has  no  visible  means  of  obtaining  an  honest  livelihood,  it  shall  be  lawful  for  the  said  court  to 
bind  such  apprentice  until,  if  a  male,  he  arrives  at  tlie  a'^e  of  twenty-one,  an<l  if  a  fc  nale,  to 
the  age  of  eig!iteen.  [Amendment,  approved  April  9,  1880;  Amendments  1880,  23  (Ban.  ed. 
178);  iHik  effect  i  m7n€diately.] 
Obli'j"fi'>n$  of  via^ters. 

Se(;.  9.  It  i^hall  be  unlawful  for  any  master  to  remove  an  apprentice  out  of  this  state;  and  in 
all  indentures  liy  the  said  court  for  binding  out  an  orphan,  or  homeless  minor,  as  an  apprentice, 
there  shall  bo  inserted,  among  other  coven. ;nts,  a  clause  to  the  following  effect:  That  the  master 
to  whom  such  m  nor  shall  be  bound  shall  cause  the  same  to  be  taught  to  read  ami  writo.  and  the 
grouu  I  rules  of  arithmetic,  and  the  ratio  and  proporiion,  and  shall  give  him  rccpiisite  instruc- 
tion in  the  diireicnt  branches  of  liis  trade  or  calling,  and  at  the  expiration  of  his  term  of  service 
ehall  give  him  two  full  new  suits  of  clothes  au<l  the  sum  of  fifty  dollars,  gold;  and  if  a  f«male, 
she  shall  have  two  line  new  suits  of  clothes  and  the  sum  of  lifty  dollars,  gohi;  the  two  new  suits 
in  either  case  lo  bo  worth  at  least  sixty  d>llars,  gold.  [Amendment,  approved  Aprd  ^d,  i^SXi', 
AmendnKvti  18S0,  2'.)  (Ban.  ed.  178);  tuok  effect  inimnllately.'\ 
Money  con-^itlera/iou-'^  and  clothes  the  property  of  appreut'ice. 

Sec.  10.     All  considerations  of  money  <>r  clothes  paid  or  allowed  by  the  master,  in  conformity 
wit'i  tlie  foregoing  section,  are  the  solo  properly  of  the  apprentice,  and  to  whom  the  mister  ia 
accountable  l<>r  the  same,  and  he  shall  pay  or  donate  into  the  hand  of  the  appreutiue  alone. 
Treatment  of  n/iprentice-i. 

Sec.  1 1.  Parents  and  guardians  and  the  said  court  shall,  from  time  to  time,  inqnire  into  the 
treatment  of  tlie  children  bound  by  them,  respectively,  or  with  their  approbation;  and  the 
judges  of  the  said  courts  shall  i>e  respousihlo  for  the  charge  of  indentured  :ipprentices  bound  by 
the  approljation  of  their  predecessors  in  oUice,  ami  defend  them  from  all  cruelty,  neglect,  In-cach 
of  contract,  or  ndsconduct  on  the  part  of  tlu-ir  masters.  [Amendment,  a^jprootd  April  9,  1880; 
Amendments  1880,  29  (Ban.  ed.  178);  took  effect  immediately.] 
Age  to  hi'  staled.     , 

Sec.  12.  The  age  of  every  apprentice  shall  be  inserted  in  the  indenture;  and  all  indentures 
entered  into  otherwise  than  as  is  herein  provided  shall  be,  as  to  all  apprentices  under  age, 
utterly  void. 

Court  to  hear  complaints. 

Sec.  1.3.  The  superior  court  shall  hear  the  complaints  of  apprentices,  who  reside  within  the 
county,  against  their  masters,  alleging  undeserved  or  immoderate  correction,  insullicient  allow- 
ance of  food,  rai  nent,  or  lodging,  want  of  instruction  in  the  different  branches  of  their  tr.ule  or 
callmg,  or  that  they  are  in  danger  of  being  removed  out  of  the  state,  or  any  violation  of  th© 

CI 


8  276  PERSONAL  RELATIONS.        [Div.  I,  Part  III,  TiTte  IV. 

indenture  of  apprenticeship;  and  the  court  may  hear  and  determine  such  cases,  and  tnake  such 
order  therein  as  will  relieve  tiie  party  in  the  future.     [Amendment,  approved  April  9,  18S0; 
Amendments  ISSO,  29  (Ban.  ed.  170);  took  eject  immediately.] 
Court  mnij  dlnrhnrf/e  apprentice.  _      ,  t    , 

Sec.  14.  Tlie  superior  court  shall  have  power,  where  circumstances  require  it,  to  discharga 
an  api)rentice  from  his  apprenticeship,  and  in  case  any  money,  or  other  thing,  has  heen  paid  or 
contracto(.l  to  he  paid  hy  either  party  in  relation  to  such  apprenticeship,  the  court  sliail  make 
such  order  concerning  the  same  as  shall  seem  just  and  reasonahle.  If  the  apprentice  so  dis- 
charged shall  have  heen  originally  hound  hy  the  superior  court,  it  shall  he  the  duty  of  the  court, 
if  found  necessary,  again  to  hind  such  apprentice,  if  underage.  [Ameudmeut,  approotd  AprU 
9,  1880;  Amendiiients  1880,  29  (Ban.  ed.  179);  took  effect  immediately.] 
Liah'dity  of  wtxf&r. 

Sue.  15.  Every  master  shall  he  liahle  to  an  action  on  the  indenture  for  the  breach  of  any 
covenant  on  his  part  therein  contained;  and  all  <laniage3  recovered  in  such  action,  after  deduct- 
ing the  necessary  charges  in  prosecuting  the  same,  shall  be  the  property  of  the  mmor,  and  shall 
be  applied  and  appropriated  to  his  use  hy  the  person  who  shall  recover  the  same,  and  shall  be 
paid  to  the  minor,  if  a  male,  at  the  age  of  twenty-one  years,  and  if  a  female,  at  the  age  of 
eighteen  years.  If  such  action  is  not  brought  during  the  minority  of  snch  apprentice,  it  may 
be  comnienceil  in  his  own  name  at  any  time  within  six  months  after  coming  of  age,  but  not  later 
than  two  j'ears. 
Action  aijainut  apprentice  for  neglect,  misdemeanor,  etc. 

Sec.  ]<).  An  apprentice  who  shall  be  guilty  of  any  gross  misbehavior,  or  refusal  to  do  his 
duty,  or  willful  neglect  thereof,  shall  render  liiinself  liable  to  the  complaint  of  the  master  in  the 
superior  court  of  the  county  wherein  he  resides,  which  complaint  shall  set  forth  the  circum- 
stances of  the  case;  and  to  said  complaint  shall  he  attached  a  citation,  signed  by  the  clerk  of 
said  court,  requiring  the  apprentice,  and  all  i)ersons  who  have  covenanted  in  liis  behalf,  to 
appear  anil  answer  to  such  complaint,  which  complaint  and  citation  shall  be  serveil  on  them  m 
the  usual  manner  of  serving  civil  process.  {Amendment,  approved  April  9,  1880;  Amendment* 
1880,  29(/?a«.  ed.  179);  took  effect  immediately.} 
Court  may  di^solre  apprenticeship. 

Sec.  17.  The  court  shall  proceed  to  hear  an<l  determine  the  cause,  and  after  a  full  hearing  of 
the  parties,  or  if  the  adverse  party  shall  neglect  to  appear  after  due  notice,  the  court  may  ren- 
der judgment  or  decree  that  the  master  be  d  scharged  from  the  contract  of  apprenticesliip,  and 
for  the  costs  of  suit;  such  costs  to  be  recovered  of  the  parent  or  guard  an  of  the  ininor,  if  there 
be  any  who  signed  the  indenture,  and  execution  therefor  issued  accordingly;  and  if  (here  be  no 
parent  or  guardian  liable  for  such  costs,  execution  may  be  iisued  tiierefor  against  the  minor,  or 
the  amount  thereof  may  be  recovered  in  an  action  against  him  after  he  shall  arrive  at  full  age. 
Liability  of  parties  to  indenture. 

Sec.  18.     The  parties  to  an  indenture  shall  also  be  liahle  to  the  master  in  an  action  on  the 
indenture,  for  the  breach  of  any  covenant  on  their  part  therein  contained,  committed  before  the 
master  was  so  discharged  from  such  indenture. 
Misdemeanor. 

Sec.  19.  It  shall  be  Unlawful  for  any  person  to  entice,  counsel,  or  persnade  to  run  away  any 
apprentice,  or  employ,  harbor,  or  conceal  such,  knowing  said  apprentice  to  be  a  runaway;  and 
the  parties  so  oirending  shall  be  guilty  of  a  mi  ■  'emeanor,  and  be  subject  to  fine  of  not  less  than 
fifty  and  not  more  than  one  hundred  dollars,  to  be  recovered  by  the  master  in  any  court  haying 
jurisdiction  thereof. 
When  master  removes  from  this  state. 

Sec.  20.  Whenever  any  master  of  an  apprentice  shall  wish  to  remove  ont  of  this  state,  or  t» 
quit  his  trade  or  business,  he  shall  appear  with  his  apprentice  before  the  superior  court  of  th© 
proper  county,  and  if  the  court  be  satislied  that  the  master  has  done  justice  to  the  said  appren- 
tice for  the  time  he  has  had  charge  of  the  same,  such  court  shall  have  power  to  discharge  such 
apprentice  from  the  service  of  such  master,  and  again  bind  him,  if  necessary,  to  some  other 
person.  [Amendment,  approved  April  9,  1880;  Amendments  1880,  30  (Ban.  ed.  170);  look  effect 
immedialeli/.  ] 

Sec.  21.  All  acts  and  parts  of  acta  in  conflict  with  the  provisions  of  this  act  are  hereby 
repealed. 

Sec.  22.    This  act  ahall  take  effect  and  be  in  force  from  and  after  ita  passage. 

62 


Tabt  IV,  Title  I.]  FORMATION  OF  CORPORATIONS.  §  2SS 

PART  rv. 

CORPORATIONS. 

Title  I.  General  Provisions  Applicable  to  All  Cobporatioxs 283 

II.  Insurance  Corporations 414 

HI.  Railroad  Corporations 454 

IV.  Street-railroad  Corporations 497 

V.  Wagon-ro.vd  Corporations 512 

VI.  Bridge,  Ferry,  Wh.\rf,  Chute,  and  Pier  Corporations 528 

VII.  Telegraph  Corporations 53(> 

VIII.  Water  and  Canal  Corporations 548 

IX.  Homestead  Corporations 557 

X.  Savings  and  Loan  Corporations 571 

XI.  Mining   Corporations , 584 

XII.  Religious,  Social,  and  Benevolent  Corporations 593 

XIII.  Cemetery  Corporations-. 608 

XIV.  Agricultural-fair  Corporations 620 

XV.  Gas  Corporations 628 

XVI.     Land  and  Building  Corporations  ...    631) 

TITLE   I. 
GENERAL  PROVISIONS  APPLICABLE  TO  ALL  CORPORATIONS. 

Chapter  I.     Formation  of  Corporations 283 

II.     Corporate  Stock 822 

HI.     Corporate  Powers 354 

IV.     Extension  and  Dissolution  of  Corporations 399 

CHAPTER  L 

FORMATION  OF  CORPORATIONS. 

Abticle  I.    Corporations  Definkd  and  how  Organized , 283 

II.     By-laws,  Directors,  Elections,  and  Meetings » 301 

ARTICLE  I. 

corporations  defined,  and  now  organized. 

283.    Corporation  defined. 

Sec.  283.     A  corporation  is  a  creature  of  tbe  law,  having  certain  powers  and 

duties  of  a  natural  person.     Beiu^  created  by  the  law,  it  may  continue  for  any 

lenp^th  of  time  which  the  law  prescribes. 

An  Act  to  define  co-operative  business  corjwrnthmji,  avd  to  provide  for  the  organization  and  gov- 

erniiieiit  thrrrof. 
[Approved  AprU  1,  1878;  1877-8,883.] 
Co-operntivp  business  corporation  defined 

Section  1.  A  cooperative  business  curpor.-ition  ia  a  corporation  formerl  for  the  pnrpose  of 
comliKMiii;^  any  lawful  business  and  of  tlivi  lin;^  a  iiortion  of  its  profits  among  persons  other  than 
its  stockholiU'rs.  Cooperative  business  corjn  nations  shall  be  fornietl  untlcr  ami  governed  by 
Division  First,  fart  IV.,  Title  I.,  of  tiic  Civil  Code  of  this  state,  and  when  so  formed,  may,  in 
their  by-laws,  iu  addition  to  the  matters  enumerated  in  section  three  hundred  and  three  of  said 
code,  provide: 

1.  I'or  tlie  number  of  votes  to  which  each  stocklioldcr  shall  be  entitled;  and, 

2.  The  amount  of  profits  which  shall  be  dixikd  among  persons  otlier  than  the  stockholders, 
and  tlie  maniur  in  which  and  the  ]>ersous  amon_'  whom  such  division  shall  be  made. 

Sec.  2.     Tliis  act  shall  be  in  force  from  and  after  its  passage. 

63 


§1284 


CORrOHATlONS. 


[Div.  I,  Part  IV, 


A  corporation  is  dsfined  by  Chief  Justice  to  manage  its  own  affairs,  ami  to  liold  prop- 

Marsliall,   in    tlie  JJartmouth   CoUegp.   CVwc,   4  erty   without    the   perplexing  intricacies,   tiio 

Wheat.  030,  to  he  "an  artificial  being,  iiivisi-  hazardous  autl  endless  necessity  of  jK-rpetual 

ble,  intan,.,'iblc,    and   existing  only  in   contem-  conveyances,  fur  the  purpose  of  tiansmittiiig  it 

plation  of  law.     lieing  the  mere  creature   of  from  iiand  to  hand.     It  is  chiefly  for  tiio  pur- 

tlie   law,    it   jiosseswis    only   those    properties  pose  of  clothing  bodies  of  men  in  succession 

whicli    the    ciiarter    of    its    creation    confers  with  these  ([ualities  and  capacities  that  corpo- 

npon  it,  cither  expressly  or  incidental  to  its  ratiorae  were   invented   and  are  in  use."     For" 

very  existence.     Tiiese  are  such  as   are   sup-  otherdefinitionsof  a  corporation,  see  Bon  v.  j^w 

posed   best  calculated   to  effect  the  object  for  Diet.,  tit.  Corporation;  Abbot,  Id. ;  Charter  v. 

which  it  was  created.     Among  the  most  im-  .S'.  /'. /Sw/a?- f 'o.,  19  Cal.  219;  Angell  &  Anieson 

portant  are  immortality,  and,  if  the  expression  Cori>.,  sees.  1-11;  2  Kent's  Com.  21)7,  268. 
may  be  allowed,   individuality— properties  by         Powers  of  corporatlona:    See  yost,   sec3. 

which  a  iierpetual  succession  of  many  persons  354  et  seq. 

are  consideied  us  tlie  same,  and  may  act  as  a         Esdstence  of  corporations  limited  to  fifty 

single  individual.     They  enable  a  corporation  years:  Sees.  290,  401,  pout. 

284.    Corporations^,  public  and  private  cliKtinguishefl. 

Sec.  2S4.  Coi-porations  are  either  public  or  private.  Public  corporations  aref 
formed  or  organized  for  the  government  of  a  portion  of  the  state;  all  other  cor- 
porations are  private.  [Amendment,  approved  Uarch  30,  1874;  Amendments 
1873-4,  197;  took  effect  July  1,  1874.]. 

The  original  section,  instead'  of  "all  otlier  people's  agent,  the  legislature,  to  assist  in  carry- 
corporations  are  private,"  had  the  words  ing  on  the  administration  of  piiMic  afTairS, 
"private  corporations  are  formed  for  the  pur-     and   witli    the  exception    of  cert;iin   constitu- 


pose  of  ndigion,  benevolence,  education,  art, 
Hterature.  or  prolit." 

Classes  of  corporations, — The  general 
classes  into  which  corporations  are  usually 
divided  by  the  text-writers,  and  in  the  minds 
of  the  courts,  are  corporations  sole,  and  cor- 
porations aggregate.  The  latter  resolve  them- 
selves into  the  divisions  specified  in  tlie  above 
section,  public  and  private.  By  the  common 
law,  corporations  were  again  distinguislied  as 
ecclesiastical  or  lay.  In  the  common-law  sense, 
ecclesiastical  corporations  do  not  exist  among 
us;  tliey  ate  known  as  religious  corporations, 
and  have  no  temporal  jiower  to  enforce  their  de- 
cisions and  ordinances.     Lay  corporations  are 


tioiial  limitations,  may  be  created,  mollified, 
or  destroyed  by  the  legislature  at  ple.TSure: 
Angell  &  Ames  on  Corp.,  sec.  31;  1  Ddlin  on 
Mnii,  Corp.,  sec.  54.  Weflrecognized  e.cam- 
ples  of  public  corporations  are  town-^,  cities, 
counties,  parishes,  existing  for  public  iiuriiusesj 
Boiiaparti'  v.  Camden  etc.  11.  It.  6'\,  1  Baldw. 
223.  The  fact  that  the  sovereign  becomes 
a  member  or  stockholder  of  a  i)rivate  corpora- 
tion dbes  not  alter  the  character,  and  make  it 
a  public  corporation;  on  the  coiitrai'y,  to  tho 
extent  of  its  interest,  the  sovereign  becomes  a 
private  individual:  Angell-  &  Ames  on  Corp. 
32.  The  case  of  Ten  Eycky.  Canal  C".,  37  Am. 
Dec.  233,  is  often  referred  to  as  containing  a 


either  eleemosynary  or  civil,   and   the  former     very  careful  review  of  the  differences  between 


embrace  all  corporations  instituted  upon  ])rin- 
ciples  of  charity;  civil  corporations  include 
those  formed  for  other  than  charitable  or 
educational  purposes,  and  extend  to  the  vast 
variet}'  of  umUrtakings  in  which  men  may  en- 
gage: See  Angell  &  Ames  on  Corp.,  c.  1.  Cor- 
porations sole  are  recognized  by  this  code:  Sec, 
602;  and  wiiat  are  sometimes  known  as  quasi 


a  public  and  private  corporation.  And  in  the 
course  of  a  well-considered  op'nion  delivered 
on  behalf  of  the  court  in  Ii'erjetitf  of  Un'irersity 
V.  Wdliaim,  9  Gill  &  X  365,  it  is  concisely 
said:  "A  public  corporation  is  one  that 
is  created  for  political  purposes,  with  po- 
litical powers,  to  be  exercised  for  purposes 
connected  with  the  public  good  in  the  admin- 


pnljlic  corporations   liave    been    recognized  in  istration  of  civil  government:  an  instrument  of 

this  state  as  ]iublie  corporations.     These  qnaxi  the  government,  subject  to  the  control  of  tho 

public  corpoiations   have  in  view  some  pul)lic  legislature  ami    its    members,    officers  of    the 

enterpri.se,  in  which  tlie  interests  of  the  local  government,    for  the    administration    or  dis- 
or  general  public  are   involved:  Mhierx^  Ditch  .  charge   of   public   duties,   as   in    the   cases   of 

Co.  V.  Zi'l(erl,a<h,^l  Cal,  54.3.     Examjiles  are:  cities,  towns,  etc.;  so  where  a  bank  is  created 

Overseers  of  tlie  poor:  Pillslown  v.  PL'ttthitrijh,  by  the  government  for  its  own   uses,  and  th& 

18    Jolms.    407;    Palmer    v.     I'andenhenjh.    3  stock  belongs  exclusively  to  the  government,. 

Wend,    193;   Armiue    v.    S/>eiirer,    4    Id.    40C;  it  is  a  public  corporation;  and  so  of  a  hospital 


Kenren  v,  JohnMon,  ^  Denio,  183;  Coiniiy  Su- 
per viiom  V.  liartirell,  8  Johns.  424;  Jaiinen  v. 
Ostraiuler,  I  Cow,  f:70;  school  directors:  In- 
h'tbitavts  of  School  District  v.  Wood,  13  Mass, 
193;  Grant  v.  Fanrher,  5  Cow.  309;  Lexiwjion 
V.  McQuillan,  0  Dana,  519i  District  v.  'Mc- 
Cloon,  4  Wis.  79;  Clarke  v.  School  District,  3 
Iv.  I,  199:  Norton  v.  Garrison,  24  Barb,  17(); 
State  v.  II nlin,  2  Or.  300;  road  commissioners: 
Duntz  V.  Dnntz,  44  Barb.  459.  Under  the  di- 
vision made  by  tlio  code,  tiieso  corporations 
would  be  deemed  public:  See  infra. 

Public  corporations  are  formed  or  organ- 
ized for  the  government  tif  a  portion  of  the 
state. 


created  and  endowed  by  a  governrnent  for  gen- 
eral purposes  of  charity."  The  dtfiiiitii>n  of  a 
pui)lic  corjioration  given  in  tlie  aliove  section 
was  considered  in  Dean  v.  Dar's.  51  Cal.  406, 
410,  witli  reference  to  a  levee  di>tri<'t  formed 
under  an  act  of  the  legislature  for  rcc'am'tion 
jiurposes.  The  court  say,  per  ,h\  Ige  Cn-ckett: 
"It  is  true,  perhaps,  that  it  was  not  formed 
or  organized  '  for  the  government  of  a  portion 
of  the  state,'  in  the  broadest  sense  of  the  term. 
But  it  nevertiieless  exercises  cert.iin  govern- 
mental functions  within  the  district.     *     *     • 


To  constitute  a  public  corjioration,   it  is  not 

essential  that  it  shall  exercise  ad  tlie  functions 

Such  corporations  are  created  bv  the    of  goverumeut  within  the  prescribed  district." 

64 


TiTLB  I,  Chap.  I.]  FORMATION  OF  CORPORATIONS,  §§  28o,  28«< 

A  reclamation  district  ia  declared  to  be  a  pub-     120;  Ilolce  v.  Perdue,  62  Cal.  545 — the  case  of- 
lie  corporation  in  People  v.  Rec.  Dist.  No.  108,     Levee  District  No.  5. 
53  Id.  546;  People  v.  Williams,  7  Pac.  C.  L.  J. 

285.  Private  corporations,  how  formed. 

Sec.  285.  Private  corporations  may  be  formed  by  the  voluntary  associatioa- 
of  any  five  or  more  persons,  in  the  manner  prescribed  in  this  article.  A  major- 
ity of  such  persons  must  be  residents  of  this  state.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  197;  took  pffect  July  1,  1874]. 

The  original  section,  after  "five  or  more  tites  in  matters  of  detail  is  not  essential,  and 

persons,"  had   the   words   "for  the   purposes  the  proceedings  will  not  be  held  invalid  for 

and."     It  had  an  additional  clause  at  the  end  slight  defects  or  omissions:  S.  V.  Wabr  Work* 

as  follows:  v.  &in  Franchro,  C2  Cal.  434;  Ex  parte  S.  F. 

"Married  women  may  become  corporators,  ]V.  IT.,  17  Id.  i."?2;   People  v.  Stockton   /?.  R, 

officers,  and  members  of  religious,  benevolent,  Co.,  4o  Id.  300;  Itoman  Cathulic  Orjihaa  Asij' 

art,  literary,  or  educational  corporations."  him  v.  Ahrams,40  Id.  4o5;  L'asifrn  Plank  lload' 

The  amendment  was  made  at  the  recom-  Co.  v.  rec?;.'//*!''??,  14  N.  Y.  f>4G;  Ealcr'njht  v.  Lo' 
mendation  of  the  code  examiners,  who  say:  (jav.^port  R.  R.  Co.,  13  Ind.  404;  Wcdlworth  v. 
"The  principal  change  in  the  section  is  substi-  Brackett,  9S  Mass.  98;  Rogers  v.  Danvvrs  etc. 
tuting  the  word  "residents"  for  "citizens,"  Societij,  19  Vt.  167.  But  a  substantial  coniplt- 
and  omitting  the  clciuse  in  the  original  section  ance  with  tlie  forms  of  tlie  act  by  the  persona 
axithorizing  married  women  to  become  corpora-  seeking  to  derive  the  benefits  of  an  incorpora- 
tors of  certain  corporations.  There  seems  to  tion  must  be  observed,  and  the  omission  of  es- 
be  no  reason  why  bunafde  residents  should  be  sentiiil  steps  will  be  fatal:  Mokdumue  Hill  Mfy. 
precluded  from  being  corporators  in  advance  of  Co.  y.  Woodlmrij,  14  Cal.  424;  Harris  v.  Ale- 
becoming  citizens,  and  there  is  no  occasion  for  Grrtjor,  29  Id.  124;  People  v.  Setfrid'jp,  r>2  Id. 
the  clause  about  married  women.  They  can  331;  Bi<jeloiv  v.  Grei/or;/,  73  111.  197;  Mc/idir« 
become  corijorators  without."  v.  McLain  Ditchimj  Co.,  40  Ind.  104;  Indian- 

Formation  of  corporation  to  be  under  a/olis  Furnace  Co.  v.  Herkimer,  40  Id.   142; 

geuerallaws:  Const.  Cal.  1S79,  art.  12,  sec.  1.  Reed  v.  Richmond  St.  R.  R.  Co.,  50  LI.  342; 

See  Stats.  1S5S,  \\  204,  sec.  2;  Id.  57;  1S50,  Field  <t-  Co.  v.  Cooks,  10  La.  Ann.  153;   Utlcij 

347;  1S51,  523;   1S61,  567,  007;   1853,  87,  109;  v.  Unioit  Tool  Co.,  II  Gray,  139;  Doyle  v.  Jjiz- 

1857,  75;  1859,  281;  1802,  199;  ISGG,  743,  752;  ner,  42  Mich.  332;  Richmond  Factory  v.  Alpx- 

18C:i.  024.  antler,  01   Me.  .351;  llnrt  v.  Sali.-ibiir,j,  oo  Mo. 

Formation  cf  private  corporations. — In  310;  A'^hott  wOmahaSmeltln'j  Co.,4}\c\).  41(5; 

incorporating  under  a  geueral  law,  a  strict  com-  l/nit;/  Lis.  Co.  v.  Crane,  4'iUj^.  H.  G41;  Jlarrod 

pliance  M'ith  all  the  requirements  of  tiic  stat-  v.  JJarner,  32  Wis.  102. 

286.  Corporations  may  be  formed  for  any  lawful  purpose. 

Seo.  2SG.  Private  corporations  may  be  formed  for  any  purpose  for  Tvliich 
individuals  may  lawfully  associate  themselves.  [Ameiid)nent,  approved  JIarch 
80,  1874;  Amendmejits  1873-4,  198;  took  effect  July  1,  1874.) 

The  originad  section  provided  that  private  such  purposes  in  twenty-seven  subdinsions. 
corporations  might  be  formed  for  certain  speci-  Tiiey  are  here  omitted  on  account  of  their 
fied  purposes,  aud  none  other.     It  designated     length. 

An  Act  to  provide/or  tlt^  formation  of  chambers  of  commerce,  hoards  of  trade,  meclianic  institutes^ 
and  otlier  kindred  protective  associations, 
[Approved  March  31,  1866;  1865-6,  469.] 
Corporations  maj/  he  formed. 

Si:CTi()N  1.  That  corporations  for  the  formation  aud  organization  of  chambers  of  com:norce» 
boards  of  trade,  mechanic  institutes,  and  otlicr  associationi  for  the  extension  aud  pronioii.m  of 
trade  and  commerce,  or  the  advancement,  protection,  and  improvement  of  the  mechanic  arts 
and  sciences,  may  be  formed  and  organized  according  to  th  j  jirovisions  of  this  act,  and  such  cor- 
porations and  the  members  thereof  shall  be  subject  to  the  liabilities  herein  imposed,  and  to 
none  other. 

Certijicate  of  incorporation, 

Skc.  2.  Any  twenty  or  more  persons  who  may  desire  to  form  a  corporation  for  either  of  the 
purposes  specilicil  in  the  preceding  section  shall  mulcc,  sign,  and  ackuo.vledge,  before  scjiuc  olli- 
cer  competent  to  take  acknowledgment  of  deeds,  and  lihj  in  the  odicc  of  the  cninty  clerk  nf  the 
county  in  which  the  principal  place  of  business  of  the  company  'u  intended  to  be  located, 
and  a  certified  copy  thereof  in  the  oliice  of  the  secretary  of  state,  a  certilicate  in  writing,  ia 
which  shall  be  stated  the  corporate  name  of  the  coq)Oiation,  the  objjct  for  which  the  corpora- 
tion shall  be  formed,  the  time  of  its  existence,  not  to  exceecl  lifty  years,  and  tlic  name  of  tlie 
city  or  town,  and  county,  in  which  the  principal  place  of  business  of  the  corporauou  is  to  bq 
located. 

Certiji/'d  copji  shall  he  evidence. 

Sec.  3.  A  copy  of  any  certificate  of  incorporation  filed  in  pursuance  of  this  act,  and  certi- 
fied by  the  county  clerk  of  the  county  in  which  it  is  fded,  or  his  deputy,  or  by  the  secretary  of 
state,  shall  be  received  in  all  courts,  actions,  proceeding.?,  aud  places,  as  presumptive  cvidcoco 
of  tJ>H  facts  tlierein  stated. 

Civ.  Code — 5  65 


S  286  CORPORATIONS.  [Div.  I,  Pabt  IV, 

Corporation — RirjUts  and  powers. 

Skc.  4.  When  the  certilicato  provided  for  in  section  two  of  this  act  shall  have  heen  filed  aa 
therein  provided,  the  persons  wlio  shall  have  signed  and  acknowledged  the  same,  and  such  per- 
eons  as  ishall  thereafter  become  their  associates  or  successors,  shall  be  a  body  politic  and  corpo- 
-rate,  and  by  their  corporate  name  have  succession  for  the  period  limited,  and  power: 

i.  'J'o  sue  and  be  sued  in  any  court; 

2.  To  maico  and  use  a  common  seal,  and  to  alter  the  same  at  pleasure; 

3.  To  lease,  purchase,  hold,  sell,  mortgage,  convey  in  trust,  convey,  release  from  trust  or  mort- 
-^age,  such  real  and  personal  estate  as  hereinafter  provided  in  this  act; 

4.  To  elect  or  appoint  such  officers,  ageuts,  and  servants  as  the  business  of  the  corporation 
Ajfihall  require; 

5.  To  make  by-laws,  not  inconsistent  with  the  laws  of  this  state,  providing  for  the  organlza- 
'  tion  Of  the  corporation  and  the  management  of  its  affairs. 

.'  Stork  and  certificates. 

Skc.  5.     Corporations  formed  under  this  act  may  have  a  capital  stock,  and  may  issue  certlS- 
-cates  to  represent  shares  of  such  capital  stock;  proindnl,  that  the  certificate  directed  in  the 
.  Becond  section  of  this  act  to  be  executed  and  filed  shall  contain  a  statement  of  the  amount  of 
,  Buch  capital  stock  and  the  number  of  shares  into  which  it  is  divided;  and  provided  further, 
'■  that  the  riglits  and  privileges  to  be  accoi-ded  to  stockholders,  as  distinct  from  those  to  be 
.  accorded  to  members  at  large  of  the  corporation,  and  the  obligations  to  l)e  imposed  upon  stock- 
holders ill  the  same  relation,  shall  be  fixed  and  established  in  the  by-laws  of  each  of  such  cor- 
,  poratious. 
Trusfeeti,  etc. 
Sec.  6.     Corporations  formed  under  this  act  may  confer  upon  a  board  of  trustees  or  directors, 
'  or  upon  a  body  to  be  styled  the  executive  committee  of  the  corporation,  the  right  to  exercise 
-  all  or  any  portion  of  the  corporate  powers  of  the  corporation;  provided,  that  the  certificate 
directed  by  the  second  section  of  this  act  to  be  executed  and  filed  in  those  cases  in  which  the 
»  right  to  exercise  the  corporate  powers  is  confined  to  a  board  of  trustees  or  directors,  or  to  a 
body  to  be  styled  the  executive  committee  of  the  corporation,  siiall  state  the  fact,  and  also 
whether  the  right  is  limited  or  otherwise;  and  in  such  corporations  the  said  certificate  shall  also 
T-etate  the  number  of  such  trustees  or  directors,  or  committee,  and  the  names  of  those  who  shall 
have  been  selecteil  to  maaage  the  affairs  of  the  corporations  for  the  first  six  months. 
.  Jieal  and  personal  estate. 

Sec.  7.     Corporations  formed  under  the  provisions  of  this  act  shall  be  capable  in  law  to  lease, 

'purchase,  have,  hold,  use,  take  possession  of,  and  enjoy,  in  fee-simple  or  otherwise,  any  personal 

<-or  real  estate  withiu  this  state  necessary  for  the  uses  and  purposes  of  such  corporation,  and  the 

'Bame  to  sell,  lease,  deed  in  trust,  alien,  and  dispose  of  at  their  pleasure.     All  real  estate  owned 

by  the  corporation  shall  be  held  in  the  name  of  the  same,  and  all  conveyances  made  by  such 

-corporation  shall  be  signed  by  the  president  and  secretary,  and  attested  by  the  corporate  seal; 

j)rorii/eil,  that  no  corporation  formed  under  this  act  shall  engage  in  any  mercantile,  commercial, 

..or  mechanical  business.     [Amcndmenl,  approved  March  10,  1S85;  Statutes  and  Amendments  1885, 

76;  took  effect  from  passage;  repealed  covflictinij  acts.^ 

Jiijdaws. 

Sec.  S.  The  by-laws  of  all  corporations  formed  under  the  provisions  of  this  act  without  capi- 
-tal  stock  shall  prescribe  how  members  of  the  corporation  shall  be  admitted,  and  how  expelled, 
.  and  how  officers,  agents,  and  servants  shall  be  elected  or  appointed;  and  such  provisions  in  the 
by-laws  of  any  such  corporation  shall  have  full  force  and  effect  as  between  private  parties  and 
.«aid  corporation. 
■  JJcetiwjs, 

Sec.  9.  Corporations  formed  under  the  provisions  of  this  act  shall  determine  by  their  by-laws 
the  manner  of  calling  and  conducting  tiieir  meetings,  the  number  of  meniliers  that  shall  consti- 
i'tute  a  quorum,  the  manner  of  levying  and  collecting  assessments,  the  officers  of  the  same,  and 
■^the  manner  of  their  election  or  ap[)ointment,  and  their  tenure  of  ofiice;  and  may  prescribe 
■suitable  penalties  for  the  violation  of  their  by-laws,  not  exceeding  in  any  case  one  hundred  dol- 
■lars  for  any  one  offense. 
J*oioer  to  lev//  assessments. 

Sec.  10.  Corporations  formed  under  the  provisions  of  this  act  having  no  board  of  trustees, 
-or  directors,  or  executive  committee,  shall  iiave  power  to  levy  and  collect  from  the  members 
thereof,  for  the  purpose  of  paying  the  proper  and  legal  expenses  of  sucli  corporation,  assess- 
finents  in  the  manner  which  may  be  prescribed  by  the  by-laws  of  such  corporation,  and  not  other- 
wise. 

Existhifj  corporations  may  take  benefit  of  this  act. 

Sec.  11.  Any  existing  corporation,  association,  or  institution  formed  for  either  of  the  par- 
poses  contemplated  by  this  act,  may,  by  a  vote  of  a  majority  of  the  mendjers  voting  at  a  meet- 
ing called  specially  for  the  purpose,  become  entitled  to  the  benefit  of  this  act  on  filing  the  cer- 
tificate required  by  this  act;  provided,  a  notice  of  the  meeting  and  its  object  shall  bo  jiublished 
in  a  paper  of  general  circulation  in  the  county  in  which  the  principal  place  of  business  of  such 
corporation,  association,  or  institution  is  located,  for  at  least  ten  days  previous  to  the  day  on 
which  such  meeting  is  to  be  held;  and  provided  further,  that  the  certificate  herein  provided  to 
be  filed  shall  be  signed  and  acknowledged  by  at  least  five  of  the  members  of  such  corporation, 
association,  or  institution,  and  contain  a  list  of  the  members  who  desire  to  become  members  of 
the  corporation.  And  upon  the  filing  of  such  certificate  as  provided  by  this  act,  the  persona 
signing  and  acknowledging  the  same,  and  those  named  therein,  and  such  persona  as  shall  there- 

66 


Title  I,  Chap.  I.]  FORMATION  OF  CORPORATIONS.  §  287 

after  hccoine  their  associates  or  successors,  shall  be  a  body  politic  and  corporate,  with  all  the 
powers  aii<l  privileges  couferred  by  tiiia  act,  and  shall  thereupon  succeed  and  become  entitled  to 
all  the  rights,  franchises,  and  property  of  such  corporation,  association,  or  iustitution. 

Efffct. 

ISkg.  12.  This  act  shall  be  in  force  from  and  after  its  passage;  and  all  corporations  formed 
undir  it  are  hereby  exempted  from  the  operation  of  all  laws  and  parts  of  laws  inconsistent  with 
its  provisions. 

Section  7  of  the  above  act  contained  a  pro-     act  approved  January  14,  18G8,  enlarging  the 
viso  originally  limiting  the  amount  of  realty     amount  to  three  hnudred  and  fifty  thousand 
tliat  could  l-e  held  liy  iiicoiporatioiis  under  tills     dollars.     The  amendment  of  1S85  removes  the 
Btatute  to  two  hundred  and  fifty  thousand  dol-     limit  altogether, 
lars.     This  section  was  amended  in  1808  by  an 

An  Art.  to  lerjalize  achwwlediimenta  of  cerfijicates  in  icritivfi  required  by  action  two  of  an  act 
entiled  "^/j  act  to  ]>rori<lvjur  the  formalion  of  chamberfiojf  commTCP,  board.i  of  trade,  merhnnic 
iiis/iti'Jen,  and  other  kindred  protective  ossocialionH,"  approved  March  tltirtij-fimt,  ei'jhlfen  hun- 
dred and  >iixli/-iiix,  here/o/ure  made  or  labn,  and  to  (eijalize.  nil  cerlijicatea  heretofore  made, 
eijned,  and  ucknouiedjed,  and  fled  under  sec/ion  tiro  of  said  act. 

[Approved  March  10,  1885;  1885,  55. J 
Section  I,  All  acknowledgments  heretofore  made  or  taken  to  the  certificate  in  writing 
requiiL-d  l)y  section  two  of  an  act  entitled  *'Au  act  to  provide  for  the  formation  of  chambers  of 
commerce,  l)oards  of  tracks  mechanic  institutes,  and  other  kindred  protective  associations," 
approved  March  thirty-lirst,  eighteen  hundred  and  sixty-six,  wliether  proven  by  a  witness  or 
otherwise,  and  all  certificates  in  writing  heretofore  made,  signed,  and  acknowledged,  and  filed 
under  section  two  of  said  act,  though  said  certificates  and  acknowledgments  be  defective  or 
irregular,  are  hereby  legalized  and  made  valid. 

Sec.  2.     This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage^ 

An  Act  to  facilitate  the  fjiving  of  bonds  required  by  law. 
[Approved  March  12, 1835;  1885, 114.] 
Incorporations  for  giving  bonds. 

Skcmo.n  1.  Whenever  any  person  who  now  or  hereafter  may  be  required  or  permitted  by  law 
to  make,  execute,  and  give  a  bond  or  undertaking,  with  one  or  more  sureties,  conditioned  for 
tlie  faithful  performance  of  any  duty,  or  for  the  doing  or  not  doing  of  anything  in  saiil  bond  or 
undertaking  specified,  any  head  of  department,  board,  court,  judge,  officer,  or  other  person  who 
is  now  or  shall  hereafter  be  required  to  approve  the  sufficiency  of  any  such  l)ond  or  undertaking, 
or  the  sui'eties  thereon,  may  accept  as  solo  and  sutlicient  surety  on  such  bond  or  undertaking, 
any  corporation  incorporated  under  the  laws  of  any  state  of  the  United  States  for  the  [lurposa 
of  niiiking  or  guaranteeing  bonds  and  undertakings  required  by  law,  and  which  shall  have  com- 
plied with  all  the  requirements  of  the  laws  of  this  state  regulating  the  admission  of  such  coijio- 
ration  to  transact  such  business  in  this  state;  and  all  such  corporations  are  hereljy  vested  with 
full  [lower  and  authority  to  make  and  guarantee  such  bonds  and  undertakings,  and  shall  be  sub- 
ject to  all  the  liabilities  and  entitled  to  all  the  rights  of  natural  persons  sureties. 
Whe7i  corporation  not  arcpted. 

Sec.  2.     It  is  further  [)rovided  that  the  guaranty  of  any  such  company  shall  not  be  accepted 
by  heads  of  departments  or  others,  as  |)rovided  in  section  one  of  this  act,  whenever  its  liabilities 
ehall  exceed  its  assets,  as  ascertained  in  the  manner  provided  iu  section  three  of  this  act. 
Duly  of  intiurance  comvi'msioner. 

Sec.  '^.  Whenever  tlie  liabilities  of  any  such  company  shall  exceed  its  assets,  the  insurance 
commisnioner  shall  require  the  deficiency  to  lie  [jaid  up  within  sixty  days,  and  if  it  is  not  so  paid 
ui>,  then  he  sliall  issue  a  certificate  showing  the  extent  of  such  deliciency,  and  he  shall  [lubli.sli 
the  same  once  a  week  for  three  weeks  in  a  daily  San  Francisco  paper,  and  thenceforth,  and  until 
Kueh  deliciency  is  paid  up,  such  compaii)'  shall  nf>t  do  lousiness  under  the  provisions  of  tiiis  act. 
And  in  estimating  the  condition  of  any  sucii  company,  under  the  provisions  of  this  act,  the 
commissioner  shall  allow  as  assets  only  sucli  as  are  authorized  under  existing  laws  at  the  time, 
and  shall  cliarge  as  liabilities,  in  addition  to  eight}'  |)er  cent  of  the  capital  stock,  all  outstanding 
indebtedness  of  the  conn)any,  and  a  [iremium  reserve  equal  to  fifty  per  centum  of  the  [ircmiums 
charged  by  said  company  on  all  risks  then  in  force.  Nothing  herein  contained  shall  a})ply  to 
bonds  given  in  criminal  cases. 

Skc.  4.     This  act  shall  take  effect  immediately. 

287.    Continuance  of  existence  under  provisions  of  code. 

Sec.  287.  Anj'  corporation  existing  on  the  first  day  of  January,  one  thousand 
eight  hundred  and  seventy-three,  formed  under  the  laws  of  this  state,  and  still 
existing,  which  has  not  already  elected  to  continue  its  existence,  under  the  pro- 
Tisions  of  this  code  applicable  thereto,  maj',  at  any  time  thereafter,  make  such 
election  by  the  unanimous  vote  of  all  of  its  directors,  or  such  election  may  bo 
made  at  any  annual  meeting  of  the  stockholders  or  members,  or  at  any  meeting 
called  by  the  directors  expressly  for  considering  the  subject,  if  voted  by  stock- 
holders representing  a  majority  of  the  capital  stock,  or  by  a  majority  of  the 

67 


§§288-290  CORrORATIONS.  Piv.  I,  Part  IV, 

members,  or  may  be  made  by  the  diroctors  upon  tlie  written  consent  of  that 
number  of  such  stockholders  or  members.  A  certificate  of  the  action  of  the 
directors,  signed  by  them  and  their  secretary,  when  the  election  is  njade  by 
their  unanimous  vote,  or  upon  the  written  consent  of  the  stockholders  or  mem- 
bers, or  a  certificate  of  the  proceedings  of  the  meeting  of  the  stockholders  or 
members,  when  such  election  is  made  at  any  such  meeting,  signed  by  the  chair- 
man and  secretary  of  tlio  meeting,  and  a  majority  of  the  directors,  must  be  filed 
in  the  office  of  the  clerk  of  the  county  where  the  original  articles  of  corporation 
are  filed,  and  a  certified  copy  thereof  must  be  filed  in  the  office  of  the  secretary 
of  state;  and  thereafter  the  coi-poration  shall  continue  its  existence  under  the 
provisions  of  this  code  which  are  applicable  thereto,  and  shall  possess  all 
the  rights  and  powers,  and  be  subject  to  all  the  obligations,  restrictions,  and 
limitations,  prescribed  thereby.  [Anumdinent,  approved  March  30, 1874;  Amend- 
ment 1873-4,  198;  took  effect  July  1,  1874.] 

Original  ssctioa:  <lu!y  certified  by  the  presiilent  and  secretary  of 

*'.Sec.  287.  Any  existing  corporation  formed  tlie  corporation,  must  he  filcnl  in  tiie  oiliuea  of 
Tinder  any  law  of  this  state,  for  any  purpoio  tlie  secretary  of  state  and  clerli  of  tlie  county 
designated  in  any  subdivision  of  the  precetling  where  tlie  articles  of  incorporation  are  on  tile, 
section,  may,  at  a  meeting  of  its  members  or  Thereafter  such  corporation  is  |)Ossessed  of  all 
Btockholders,  cal'ed  for  that  purpose,  continue  the  rights  and  powers,  an<l  subject  to  all  th>j 
its  existence,  under  title  1  of  this  part,  or  un-  obligations,  restrictions,  and  limitations,  pro- 
der  the  provisions  of  any  subsequent  title  par-  vided  in  this  ])art  ap[)licahle  thereto,  and  it» 
ticulai'ly  applicable  thereto,  as  follows:  corporate  existence  is  continued." 

"  1.  I'ublic  notice  of  such  meeting,  and  of  ita  By  electing  to  coatinus  its  existence  under 
object,  must  be  given  by  publishing  the  same  the  provisions  of  the  code,  a  compliance  with 
in  a  daily  uewsp-iper  for  two  weeks,  or  a  weekly  the  requirements  of  this  section  has  been  held 
newspaper  for  four  weeks,  successively,  pub-  to  entitle  sucli  corporation  to  a  renewed  exist- 
li.shed  in  the  county  where  the  principal  place  ence  beyond  tlie  period  originally  designated: 
of  business  of  the  corporation  is.  In  lieu  of  People  v.  Pfixti'r,  57  Cal.  532.  The  »liiS2nting 
the  publication,  personal  notice  may  be  given  opinion  of  Judge  iloss  was,  that  where  by  tlio 
to  each  member  or  stockholder  thereof;  law  of  its  original  organization  a  right  of  the 

"2.  Two  thirds  of  the  members,  if  there  is  corporation  was  to  pass  to  the  public — in  tint 
no  capital  stock,  and  if  there  is  a  capital  stock,  case  a  toll-road  to  become  a  free  pnb'ic  highway 
then  stockholders  representing  two  thirds  of  it,  — the  extension  of  its  existence  under  the  codo 
must  vote  in  favor  of  sucli  continuance;  could  not  extend  the  right  in  question  beyond 

"8.  A  copy  of  the  proceedings  of  this  meet-  the  original  term.  See  for  a  case  of  i)ankin,j 
ing,  giving  the  n  imes  of  all  persons  present,  corporation,  whose  original  incorporation  wai 
the  votes  taken,  the  notice  calling  the  meeting,  attacked,  being  allowed  to  continue  under  tho 
and  the  proof  of  its  publication  or  service,  all    code,  People  v.  Perrin,  5G  Id.  345 

288.  Erbiting  corpondions  not  affected. 

Sec  288.  No  corporation  formed  or  existing  before  twelve  o'clock,  noon,  of 
the  day  upon  which  this  code  takes  effect,  is  affected  by  the  provisions  of  Part 
IV,  of  Division  First  of  this  code,  unless  such  corporation  elects  to  continue  \i\\ 
existence  under  it  as  provided  in  section  two  hundred  and  eighty-seven;  but 
the  laws  under  Avhich  such  corporations  were  formed  and  exist  are  applicable  to 
all  such  corporations,  and  are  repealed,  subject  to  the  provisions  of  this  section. 

Existing  corporations,  how  affected:  See  Say  the  court  in  that  case,  that  the  laws  under 
J/ri/iir-7nuii  V.  liluh',  I  [)  Cal.  579,  construing  the  wiiicli  corporations  had  been  forme  1  were  con- 
act  of  IS58  providing  for  the  reincorporation  tinued  in  force  as  to  such  corporations;  and  that 
of  corporatiiuis  formed  prior  thereto.  "An  act  concerning cor[)Orations,"  passed  April 

'J'lie(inestii<n  of  the  efi'ectof  the  codeiipon  ex-  22,  1850,  and  the  acts  amendatory  of  and  snp- 
isting  corporations  arose  in  Edate  oJ^Eit^tmnn,  plementary  thereto,  still  were  in  force  so  as  to 
60  Cat.  .iOS,  in  regard  to  such  corporation's  right  allow  the  .St.  John's  Episcopal  churoh  of  Stock- 
to   take   under  a  will   after  January  1,  1873.     ton  to  take  a  bequest. 

289.  Name  of  hmt rume.nl  creating  corporation. 

Sec.  289.  The  instrument  by  which  a  private  corporation  is  formed  is  called 
•'  articles  of  incorporation." 

290.  Articles  of  incorporation,  what  to  contain. 

Sec  290.     Articles  of  incorporation  must  be  prepared,  setting  forth: 
1.  The  name  of  the  incorporation; 

63 


290a.     Minimum   Capital  to  be  Paid   in.     Before  the  secre- 
tary of  state  issues  [any  certificate  of  incorporation  or  certifi- 
cate of  authority  to  transact  business  in  this  state.]   to  anv 
coporation,   authorized  in  its  articles  of  incorporation  to  act 
as   executor,   administrator,   guardian,   assignee,   receiver,   de- 
positary   or    trustee,    there    must    be    filed    in    his    ofRce    the 
affidavit   of   the   persons   named   in   said   articles   as    the   first 
directors    of    the    corporation,    that    at    least    [two]    hundred    i 
thousand  dollars  of  the  capital  stock,  has  actually  been  sub- 
scribed, and  paid  in  to  a  person  named  in  such  affidavit,  for 
the  benefit  of  the  corporation  [and  before  he  issues  any  cer-  J 
tificate  of  incorporation,   or  certificate  of  authority  to  trans-   ' 
act    business    in    this    state,    to    any    corporation,    authorized 
in  Its  articles  of  incorporation  to  engage  in  the  business   of 
banking,    or    of    receiving    the    money    of    others    on    deposit, 
there    must   in    like    manner    be    filed    the    affidavit    provided 
herein  that  at  least  twenty-five  thousand  dollars  of  the  capi- 
tal   stock,    has    actually    been    subscribed,    and    paid    in    to    a 
person  named  in  such  affidavit,  for  the  benefit  of  the  co- .     •  - 
ation].      (In    effect   60   days   from   and   after   March   13 
Stats.   I!i0!i.   Chap.  i;.5.)  Civ.   Code,    ...j!      . 


Title  I,  Chap.  I.]  FORMATION  OF  CORPORATIONS.  §  291 

2.  The  purpose  for  wbich  it  is  framed; 

3.  The  place  where  its  principal  business  is  to  "be  transacted; 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fift}'  years; 

5.  The  number  of  its  directors  or  trustees,  which  shall  not  be  less  than 
five  nor  more  than  eleven,  and  the  names  and  residence  of  those  who  are  ap- 
pointed for  the  first  year;  provided,  that  the  corporate  powers,  business,  and 
property  of  corporations  formed  or  to  be  formed  for  the  purpose  of  erecting  and 
managing  halls  and  buildings  for  the  meetings  and  accommodation  of  several 
lodges  or  societies  of  any  benevolent  or  charitable  order  or  organization,  and 
in  connection  therewith  the  leasing  of  stores  and  offices  in  such  building  or 
buildings  for  other  purposes,  may  be  conducted,  exercised,  and  controlled  b}'  a 
board  of  not  less  than  five  nor  more  than  fifty  directors,  to  be  chosen  from 
among  the  stockholders  of  such  corporation ,  or  from  among  the  members  of 
such  order  or  organization;  and  provided  also,  that  at  any  time  during  the 
existence  of  corporations  for  profit,  other  than  those  of  the  character  last  herein- 
above provided  for,  the  number  of  the  directors  may  be  increased  or  diminished 
by  a  majority  of  the  stockholders  of  the  corporation  to  any  number  not  exceed- 
ing eleven  nor  less  than  five,  who  must  be  members  of  the  corporation,  wliere- 
upon  a  certificate,  seating  the  number  of  directors,  must  be  filed,  as  provided 
for  in  section  two  hundred  and  ninety-six  for  the  filing  of  the  original  articles 
of  incorporation; 

G.  The  amount  of  its  capital  stock,  and  the  number  of  shares  into  which 
it  is  divided; 

7.  If  there  is  a  capital  stock,  the  amount  actually  subscribed,  and  by 
whom.  [Amendinmf,  approved  April  IG,  1880;  Ainendmods  1880,  11  {Ikin.  cd. 
335);  looL  effect  imme.dialeli/.  | 

Requisites  of  articles  of  incorporation. —  payment  of  the  ten  per  cent  of  the  sulxscrilicd 

The  geiKMul  rules  respecting    the  necessity  of  capital   stock,   of   the   \voi-<ls  "  in   good  faitii," 

complying  with  the  statiitoi-y  recpiisites  in  order  was  <leenied  iiniiiaterial:   People  v.  S.  d-    I'.    /{, 

to  affcc^.  a  valid  incorporation  luulcr  a  general  /r*.  Co.,  45  Id.   ."^OG.     Omission  of  the  original 

law  ai'c  stated  in  the  note  to  section  "JSo,  ante,  certificate  to  state  the  amount  of  the  company 

The  f.iUowing  applications  of  these  principles  capital    stock  was    hehl   cured   by  siihscfiueut 

li;ivc  been  made    in  C'aiifoinia:   "Tiie    Roman  legislation,  in  A'oy^/^' v.  /"e/Tiy;,  5G  Id.  .34,"). 
Catholic  Orphan  Asylum"  is  a  sulhcient  desig-         See  r.lso  section  r)04,pos(;  also  section  ,">93,  in 

nation  of  tiie  name  of  the  corporation:   ['omaii  regai-d  to  benevolent  eoiporations. 
C.  U.  A.  V.  Alirams,  41)  Cal.  435.     The  omis-        "Other  requisites  of  the  articles  of  inoor- 

sion  to  state  the  place  where  its  principal  place  poratiou  of  particular  Idnds  of  corporation 

of  business  is  to  be  transacted  is  fatal:  //arris  will  be  found  enumerated  in  the  following  seo- 

V.    McOnr/or,  29    LI.    llI4;  but   the  failure    to  tions:  291  as  to  railroad,  wagon-road,  and  telc- 

desciibc  the  place  of  business  of  the  corpora-  graph  corpoiations;  593  and  594  as  to  benevo- 

tion  as  the  "principal  place  of  bubiness"isa  lent  eorjiorations. 

mere  ti'ciinieal  error:  Z/'ar /^(//■('p -9.  V.  11".  ir.,  17        Kmit  of  corporate  existence;     See  sec. 

Id.  i;!2.     If  it  is  not  S(4  forth  in  the  articles  of  354,  subd.  1,  and  note.     A  statement  in  the  cer- 

ineorporatiou  of  an  association,  other  than  for  tificate  of  a  term  of  existence  greater  than  lim- 

prolit,  that  a  majority  of   the   meuibers  wei-e  ited  by  law  is  not  fatal  to  its  creation:  /'loplt 

presentand  votetl  at  an  election  of  directors,  the  v.  Chi'cyemav,  2  West  Coast  Rep.  270  (Tol.). 
certificate  does  not  constitute  the  association         Subscription  to  capital  stock  before   in- 

a  corporati  »u:  /'eojdc,    v.  Scl/ruli/e,  52  Id.  ;{31.  corporation  not  enforceable  l)y  the  corooraliou: 

The  omission  in  the  affidavit,  in  regard  to  the  Cal.  Siujur  sV/j.  Co.  v.  Sc/ia/er,  57  Cal.  30G. 

231.    Certain  corporations  to  ufate  further  /nets  in  articles. 

Sec.  291.  The  articles  of  incorporation  of  any  railroad,  wagon-road,  or  tele- 
graph organization  must  also  state: 

1.  The  kind  of  road  or  telegraph  intended  to  be  constructed; 

2.  The  place  from  and  to  which  it  is  intended  to  be  run,  and  all  the  interme- 
diate branches; 

3.  The  estimated  length  of  the  road  or  telegraph  line; 

4.  That  at  least  ten  per  cent  of  the  (vapital  stock  subscribed  has  been  paid  in 
to  the  treasurer  of  the  intended  corporatiuu. 

G9 


§§  292-296  COrPORATICNS.  [Drv.  I,  Part  IV, 

The  articles  of  incorporation  of  a  railroad  must  fully  set  forth  the  amounts  Bubscribed,  and  by 
vhouK  M.  d-  S.   V.  /.'.  A*.  Co.  V.  tJUdreth,  53  Cal.  123. 

292.  Ai-ticles  to  be  subscribed  and  acknowledged — Number  and  qualijkation  of 
sk/ncrs. 

Sec.  292.  The  articles  of  incoi-poration  must  be  subscribed  by  five  or  mora 
persons,  a  majority  of  whom  must  be  residents  of  this  state,  and  acknowledged 
bv  each  before  some  officer  authorized  to  take  and  certify  acknowledgments  of 
couvevances  of  real  property.  [Amt-ndinenl,  approved  March  30,  1874;  Amend- 
nif?/</.s  1873-4,  199;  took  effect  July  1,  1874.] 

The  original  section  used  the  word  "  three  "  instead  of  •'  a  majority,"  and  the  word  "grants  " 
instead  of  "  couveyauces." 

293.  PrerequisUe  to  filing  articles. 

Sec.  293.  Each  intended  corporation  named  in  section  two  hundred  and 
niuet3'-one,  before  filing  articles  of  incorporation,  must  have  actually  subscribed 
to  its  capital  stock,  for  each  mile  of  the  contemplated  work,  the  following 
amounts,  to  wit: 

1.  One  thousand  dollars  per  mile  of  railroad; 

2.  One  hundred  dollars  per  mile  of  telegraph  lines; 

3.  Three  hundred  dollars  per  mile  of  wagon  roads. 

294.  PrerequutUe  to  filing  articles  of  corporations  for  profit. 

Sec.  294.     Before  the  articles  of  incorporation  of  any  corporation  referred  to 

in  the  preceding  section  are  filed,  there  must  be  paid  for  the  benefit  of  the  cor- 
poration, to  a  treasurer  elected  by  the  subscribers,  ten  per  cent  of  the  amount 
subscribed. 

Statutes   1850,  p.  .'^70,   sees.    156,   157.     The  with  the  requirements  of  the  statute,  and  par- 

Btatates  of  1801.  p.  607,  required  as  preliminary  ticnlar!y  if  the  checks  Avere  presented  and  paid 

to  tlie  organization  of  a  railroad  coinp;iny.  that  within  a  reasonable  time:  Pevple  v.  .V.  <i-  V.  R. 

stock  to  the  amount  of  at  least  one  thousand  7*.  Co.,  45  Id.  393.    And  the  former  case  afhrms, 

dollars  per  mile  of  the  proposed  road  shall  he  as  settled  principle,  that  the  payment  of  tlia 

snliscrihed    "and  ten  per  cent  in  cash   sore-  teu  per  cent  is  a  condition   precedent  to  tha 

quired  to  be  subscrihed  shall  be  actually  and  formation  of  a  valid  corporation.      "Without  a 

in  flood  f:iith  ])aid  to  a  treasurer  to  be  naineil  substantial  compliance  with  this  provision,  the 

and  apjiointed  by  snid  subscribers  from  among  subscribers  acquired  no  jurisdiction  to  (jrganiza 

their  number."     Under  this  statute,  payment  themselves  into  a  corporate  body:"  Iil.,  citing 

bv  check  drawn  on  a  bank  w!;ere  the  drawer  Eaton  x.  Axplnwall,    19  N.  Y.    119;  People   v. 

had  no  fund   is  insutiicient:   Ppon/e  v.   Ch-im-  Troy  Home  Co.,  44  Barb.    634;  Ilnviland  v. 

ie ;••■<,  42  Cal.  201.     But  a  payment'of  the  ten  per  Chase,  39  Id.  2S3;   Taifjart  v.  Wexterii  Md.  R. 

cent,  in  good  faith,  by  checks  ])ayable  in  prce-  R.   Co.,  24  Md.  588;  Pe^p'e  v.  Rensselaer  Itiit. 

gfiili,  and  drawn  ui>on  a  sulficient  sum  or  de-  Co.,  33  Barb.  323;  Patterson  v.  Arnold,  45  Pa. 

posit  to   meet  them,  would   be  a  compliance  St.  415. 

295.  Onth  of  officer  to  subscription  of  stock  and  payment  of  ten  per  cent. 

Sec.  295.  Before  the  secretary  of  state  issues  to  any  such  corporation  a  cer- 
tificate of  the  filing  of  articles  of  incorporation,  there  must  be  filed  in  his  office 
an  affidavit  of  the  president,  secretary,  or  treasurer  named  in  the  articles,  that 
the  required  amount  of  the  capital  stock  thereof  has  been  actually  subscribed, 
and  teu  per  cent  thereof  actually  paid  to  a  treasurer  for  the  benefit  of  the  cor« 

poratiou. 

Affidavit. — Variation  in  the  lan'juage  of  the     ancewith  the  statute  being  substantial:  Peoplt 
affidavit  from  that  of  the  statute  does  not  viti-     v.  i?.  a;  V.  R.  R.  Co.,  45  Cal.  306. 
ate  the  articles  of  incorporation,   the  compli- 

296.  A'-ticles  to  b"fih'd  with  county  clerk  and  secretary  of  state. 

Sec.  29C.  Upon  filing  the  articles  of  incorporation  in  the  office  of  the  county 
clerk  of  the  county  in  which  the  princip.al  business  of  the  company  is  to  be 
transacted,  and  a  copy  thereof,  certified  by  the  county  clerk,  with  the  secretary 
of  state,  and  the  affidavit  mentioned  in  the  last  section,  where  such  affidavit  is 

70 


TiTLB  I,  Chap.  L]  FORMATION  OF  CORPORATIONS.  §§  297-299 

required,  the  secretary  of  state  must  issue  to  tlie  corporation,  over  tlie  great 
seal  of  the  state,  a  certificate  that  a  copy  of  the  articles,  containing  the  required 
statement  of  facts,  has  been  filed  in  his  office;  and  thereupon  the  persons  sign- 
ing the  articles,  and  their  associates  and  successors,  shall  be  a  body  politic  and 
corporate,  by  the  name  stated  in  the  certificate,  and  for  the  term  of  fifty  years, 
unless  it  is  in  the  articles  of  incorporation  otherwise  stated  or  in  this  code 
otherwise  specially  provided.  [ Amend me^it,  approved  March  30,  1874:;  Amend- 
mentH  1873-4,  199;  took  effect  July  1,  1874.] 

Commencement  of  corporate  existence.  Blijclow  v.  Grpgorn,  73  111.  197;  Unity  Ins.  Co. 
Am  the  law  stood  |)rior  to  tlie  adoption  of  the  v.  Crane,  43  N.  11.  041;  Abbott  v.  Omnlm  Smelt- 
code,  coiporati<;ns  had  a  legal  existence  from  in;)  Co.,  4  Neb.  410;  Field  <fc  Co.  v.  (Jnckx,  16 
the  dale  of  fdiiij^  the  certificate  of  incorpora-  La.  Ann.  153;  Doyle  v.  Mizyier,  42  Mich.  332; 
tion  in  the  cour.ty  ckrk's  office:  Mokelianne  UUeii  v.  Union  ToolC".,  11  Gray,  139;  Mrlnlire 
Hill  M.  Co.  V.  Woodbury,  14  Cal.  424.  The  v.  McLain  Ditchinj  Co.,  40  Ind.  104;  LW,l  v. 
statutes  in  regard  to  liling  the  articles  of  incor-  Richmond  street  R.  R.  Co.,  50  Id.  342;  RicJy- 
poration  must  be  foUoweil  in  order  to  create  viond  I-'iu-fory  v.  Ale.iander,(il  Me.  3j1;  Child$- 
the  corporate  existence  of  the  associates:  Id.;     v.  >^miih,  55  Barb.  45. 

297.  Certified  copy  of  articles  as  prima  facie  evidence. 

Sec.  297.  A  copy  of  any  articles  of  incorporation  filed  in  pursuance  of  this 
chapter,  and  certified  by  the  secretary  of  state,  must  be  received  in  all  the 
courts  and  other  places  as  prima  facie  evidence  of  the  facts  therein  stated. 
[Amendment,  approved  Marcli  30,  1874;  Amendments  1873—4,  200;  took  effect 
July!,  1874.] 

Stats.  1SG2,  109;  1853,83;  1850,  370,  sec.  158;  stated:  .V.  V.  15'.  11'.  v.  San  Francisco,  22  Cal. 
1861,  500,  sec.  17.  434;    Dannebroje    Mining  Co.   v.  AUment,   26 

Ccrtiiisd  copy  of  artiolss  of  incorpora-    Id.  280. 
tion  is  jiriina  facie  evidence  of  the  facts  therein 

298.  TlVfo  are  members  and  who  stockholders  of  corporation. 

Sec.  298.  The  owners  of  shares  in  a  corporation  which  has  a  capital  stock 
are  called  stockhulJers.  If  a  corporation  has  no  capital  stock,  the  coiiDoratora 
and  their  successors  are  called  members. 

299.  Filing  articles  of  incorporation. 

Sec.  299.  No  corporation  hereafter  formed  shall  purchase,  locate,  or  hold" 
property  in  any  county  of  this  state,  without  filing  a  copy  of  the  copy  of  its 
articles  of  incorporation  filed  in  the  office  of  the  seci'^tary  of  state,  duly  certi- 
fied by  such  secretar}'  of  state,  in  the  office  of  the  county  clerk  of  the  countj 
in  which  such  proj^erty  is  situated,  within  sixty  days  after  such  purchase  or 
location  is  made.  Everj'  corporation  now  in  existence,  whether  formed  under 
the  provisions  of  this  code  or  not,  must,  within  ninety  days  after  the  passag3 
of  this  section,  file  such  certified  copy  of  the  copy  of  its  articles  of  incorpora- 
tion in  the  office  of  the  county  clerk  of  every  county  in  this  state  in  which  ib 
holds  any  property  (except  the  county  where  the  original  articles  of  incorpora- 
tion are  filed);  and  if  any  corporation  hereafter  acquire  any  property  in  anjr 
county  other  than  that  in  which  it  now  holds  property,  it  must,  within  ninetj 
days  thereafter,  file  with  the  clerk  of  such  count}' such  certified  copy  of  the  copj 
of  its  articles  of  incorporation.  The  copies  so  filed  with  the  several  countj 
clerks,  and  certified  copies  thereof,  shall  have  the  same  force  and  effect  in  evi- 
dence as  would  the  originals.  Any  corporation  failing  to  comply  with  the  pro- 
visions of  this  section  shall  not  maintain  or  defend  any  action  or  proceeding 
in  relation  to  such  property,  its  rents,  issues,  or  profits,  until  such  artii  les  of 
incorporation,  and  such  certified  copy  of  its  articles  of  incorporation,  and  such 
certified  copy  of  the  copy  of  its  articles  of  incorporation,  shall  be  filed  at  the 
places  directed  by  the  general  law  and  this  section;  provided,  that  all  corpora-. 

71 


S§  300,  SOI  CORPORATIONS.  [Div.  I,  Part  IV, 

tions  shall  be  liable  in  rlamag-es  for  any  and  all  los3  tbat  may  arise  by  the  fail- 
ure of  such  corporation  to  perform  any  of  the  foregoinpf  duties  within  the  time 
mentioned  in  this  section;  and  provided  further,  that  the  said  damages  may  be 
recovered  in  an  action  brought  in  any  court  of  this  state  of  competent  jurisdic- 
tion, by  any  party  or  parties  suffering  the  same.  [Aniendmeid,  a.jproviMl  April 
23,  1880;  Amendments  1880,  1.3  {nan.  ed.  403);  took  effect  immediately.] 
Right  to  purchase  and  hold  real  estate:  See  sec.  3.34,  subtl.  4,  post. 

300.    Capital  stock  of  banking  corporoJions. 

Si^.c.  300.  Every  corporation  that  has  been  or  may  be  created  under  the  gen- 
eral laws  of  this  state,  doing  a  banliing  business  therein,  and  which  has  no 
capital  stock,  may  elect  to  have  a  capital  stock,  and  may  issue  certidcates  of 
stock  therefor,  in  the  same  manner  as  corporations  formed  under  the  provisions 
of  Chapter  I.,  Article  I.,  of  the  Civil  Code,  relating  to  the  forn)aLion  of  corpora- 
tions; provided,  that  no  such  corjwration  shall  use  or  convert  any  moneys  or 
funds  theretofore  belonging  to  it,  or  under  its  control,  into  ciipiral  stock;  but 
such  funds  or  moneys  must  be  held  and  managed  only  for  the  purposes  and  iu 
the  manner  for  which  they  were  created.  Before  such  change  is  made,  a 
majority  of  the  members  of  such  corporation  present  at  a  meeting  called  for  the 
purpose  of  considering  the  proposition  whether  it  is  best  to  have  a  capital  stock, 
its  amount,  and  the  number  of  shares  into  which  it  shall  be  divi^^lod,  must  vote 
in  favor  of  having  a  capital  stock,  fix  the  amount  thereof,  and  the  number  of 
shares  into  which  it  shall  be  divided.  Notice  of  the  time  and  place  of  holding 
Buch  meeting,  and  its  object,  must  be  given  by  the  i)resident  of  such  corpora- 
tion, by  publication  in  some  newspaper  printed  and  published  in  the  county, 
or  city  and  count}^  in  which  the  principal  place  of  business  of  the  corporation 
is  situated,  at  least  once  a  week  for  three  successive  weeks  prior  to  the  holding 
of  the  meeting.  A  copy  of  the  proceedings  of  this  meeting,  giving  the  number 
of  persons  present,  the  votes  taken,  the  notice  calling  the  meeting,  the  proof 
of  its  publication,  the  amount  of  capital  actually'subscribed,  and  bv  whom,  all 
duly  certified  by  the  president  and  secretary  of  the  corporation,  must  be  filed 
in  the  offices  of  the  secretary  of  state  and  clerk  of  the  county  where  the  articles 
of  incorporation  are  filed.  Thereafter  such  corporation  is  possessed  of  all  the 
rights  and  powers,  and  is  subject  to  all  the  obligations,  restrictions,  and  limi- 
tations, as  if  it  had  been  originall}'  created  with  a  capital  stock;  and  provided 
further,  that  no  bank  in  this  state  shall  ever  pay  any  dividend  upon  so  called 
guaranty  notes,  nor  upon  any  stock,  except  upon  the  amount  actually  paid  iu 
money  into  said  capital  upon  such  stock,  and  any  payment  made  in  violation 
of  this  provision  shall  render  all  officers  and  directors  consenting  to  the  same 
jointly  and  severally  liable  to  the  depositors  to  the  extent  thereof.  |  New  aection, 
approved  March  29,  1878;  Amendments  1877-8,  77;  took  effect  sixtieUt  datj  after 
passage.  ] 

See  People  v.  Pen-in,  56  Cal.  345,  for  an  example  of  a  banking  corporation  coming  iu  uuiler 
tliia  provision  of  the  code. 

ARTICLE  II. 

BT-LAWS,  DIRECTORS,  ELECTIONS,  AND    MEETINGS. 

801.    Adoption  of  by-laws,  when,  how,  and  by  whom. 

Sec.  301.  Every  corporation  formed  under  this  title  must,  within  one  month 
after  tiling  articles  of  incorporation,  adopt  a  code  of  by-laws  for  its  govern- 
ment not  inconsistent  with  the  constitution  and  laws  of  this  state.  The  assent 
of  stockholders  representing  a  majority  of  all  the  subscribed  capital  stock,  or 

72 


SOS.  Election  of  Directors;  Notice  of.  The  directors  of 
rorpovation  must  be  elected  annually  loy  the  stockholders 
members,  and  if  no  provision  is  made  in  tlie  by-laws  for 
time  of  election,  the  election  must  be  held  on  the  first 
lesday  in  June.  Notice  of  such  election  must  be  given  as 
•  scribed  in  section  three  hundred  one  [unless  all  of  the 
ickholders  waive  such  notice  in  writing].  (In  effect  60  days 
un  and  after  February  22,   1909.     Stats.  1909,  Chap.   S7.) 

Civ.    Code,    1909. 


^OOa.  Change  of  Name,  Filing  Copy  of  Decree.  Every 
corporation  which  has  changed  [itj  name  under  the  pro- 
visions  of  sections  1275..  1276,  1277,  1278  and  1279  of  the 
Code  of  Civil  Procedure,  must  file  in  the  ofHce  of  sec- 
retary of  state  [and  in  the  office  of  the  county  clerk  of 
each  county  in  which  the  original  articles  or  certified  copies 
thereof  are  required  by  law  to  be  filed]  a  certified  copy  of 
the  decree  of  the  court  changing  such  name.  (In  effect  ^0 
days  from  and  after  April  16,   1909.     Stats.    ]:)09,   Chap.    639.) 

Civ.  Code,   1909. 


Title  I,  Chap,  I.] 


FORJklATIOX  OF  CORPORATIONS. 


§302 


of  a  majority  of  the  members,  if  there  be  no  capital  stock,  is  necessarj'  to  adopt 
by-laws,  if  they  are  adopted  at  a  ineetiug  called  for  that  purpose;  and  in  the 
event  of  such  meeting  being  called,  two  weeks'  notice  of  the  same,  by  adver- 
tisement in  some  newspaper  published  in  the  county  in  which  the  principal 
place  of  business  of  the  corporation  is  located,  or  if  none  is  published  therein, 
then  in  a  paper  published  in  an  adjoining  county,  must  be  given  by  order  of 
the  actiug  president.  The  written  assent  of  the  holders  of  two  thirds  of  the 
stock,  or  of  two  thirds  of  the  members  if  there  be  no  capital  stock,  shall  be 
effectual  to  adopt  a  code  of  by-laws  without  a  meeting  for  that  purpose. 
[Aniendme)it,  approved  March  30,  1874;  AmendineiUs  187J-4,  200;  loofc  effect 
JabjX,  1874.] 


Power  to  make  by-laws:  See  sec.  ."534, 
suljil.  (),  ])0»f.  "The  term  'by-law  '  was  origi- 
nally ai'pliod  to  the  laws  and  orcliiinncLS  en- 
acted by  puliliu  or  municipal  corporations. 
The  (lilicrL'nue  between  a  by-law  of  a  private 
company  and  a  law  enacted  by  a  municipality 
ia  wide  ami  obvious.  The  former  is  meicly  a 
rule  prescribed  by  the  majority  under  authority 
of  the  oilier  members,  for  the  regulaticu  and 
manauement  of  tiieir  joint  affairs.  But  a  by- 
law of  a  municipal  corporation  is  a  local  law, 
enacted  by  public  othcers  by  virtue  of  legisla- 
tive poweis  (hlcL'ated  by  the  state:"  Morawetz 
on  Corp.,  sec.  .3()(),  in  note.  The  power  to  make 
bydaws  is  an  incident  to  the  very  existence  of 
a  corporatiou:  Ant^ell  &  Ames  on  Corp.,  sec. 
325.     But  it  is  very  rarely  left  to  implication. 


trie,  9  Ala.  738;  Ameshnri/  v.  Bowdllch  Ins. 
Co.,  G  Gray,  51)G;  Davis  v.  Pro])r'etorx,  8  Met. 
3-1.  A  corporation  cannot  pass  by-laws  im- 
posing liens  on  stock  so  as  to  charge  bona  fide 
jnirchasers  tliereof:  Anyto-Cul.  Buuk  v.  Uraug- 
er-s'  Bank,  03  Cal.  359. 

By-laws  must  be  reasonable,  and  not  op- 
pressive or  vexatious:  St.  Liihc\  Church  v. 
M<!iheics,Q>  Am.  Dec.  Gl'.);  Le<i'l<'(l  v.  iV  J.  M. 
cL-  B.  Co.,  23  Id.  72S;  Tay/or  v.  CrUusod,  Tl  Id. 
33;  Kent  v.  Qmrlc^ilver  Mhiiiij  (:><.,  78  N.  Y. 
182,  183;  Carlaa  v.  Father  Slatlh"iv  Soc^i/,  3 
Daly,  20;  People  v.  Medkul.  So'-'ij,  24  Barl).  570; 
ComiHOiiu-euUk  v.  6'///,  3  Whart.  228;  Moore  v. 
Bank  of  Commerce,  52  Mo.  377:  'Sta!e  v.  J/^y- 
chiints''  Ex.,  2  Mo.  App.  9G;  see  Boone  on  Corp., 
sec.  58. 

By-laws  must  be  prospective,  they  can- 


te<l  to  some  particular  officers  or     not  impair  vested  rights:   ]'co//le  v.  Crockett,  9 
327;  Morton  Gravel  RomL  Co.  v.     Cal.  112;  Howard  wSdvanwih,  T.  U.  P.  Chailt. 


It  resides  in  the  general  body  of  the  members 
unless  (hk'gate<" 
membei's:  Id. 

Wi/soiK/,  51  Ind.  4.  173;  Pulford  v.  /tre  Dept.,^\  Mich.  4.J8;  Kent 

Nature  of  tliG  by-laws. — By-laws  must  not  v.  Qiilck^Urer  M.  To.,  78  N.  Y.  150,  IS.'J. 

be  inconsistent  with  any  existing  law:  Sec.  354,  Repeal  and  amendment  of  by-laws:  See 

Bubd.  G;  and  are  void  if  contrary  cither  to  the  sec.  304,  ]:o4. 

constitution  of  the  United  States  or  state  ere-  By-laws  lawfully  made  bind  tlie  officers 

atiug  the  corporation,  to  the  laws  of  that  state  and    memliers   of   the    corporation,   and    those 

or  <if  congress,  or  to  the  common  law:  Peojilc  v.  dealing  with  it  who  have  notice  of  the  l>y-laws; 


Crockett,  9  Cal.  112;  United  States  v.  J  J  art,  I 
Pet.  C.  C.  .'i90;  Bank  v.  Lanier,  11  Wall.  .309; 
Kennebec  R.  Co.  v.  Kendall,  31  Me.  470;  Sluy- 
f^sdid  \ .  New  York,  7  Cow.  588;  People  v.  Ki/'/>, 
4  Id.  382;  Aidntni  Academy  v.  Striixj,  Hoplc. 
Ch.  278;  Seneca  B'ink  v.  Lamb,  2G  Barb.  595; 
Bntchers  A<-<n,  '.'.')  Pa.  St.  151;  Tai/lir  v.  Oris- 
wold,  14  N.  .J.  L.  223;  Sayre  v.  LonisvU/e  U.  B. 
Ass'n,  1  Duv.  143;  Darin  v.  Meethiij-liouse,  8 
Met.  321;  (drc  v.  St.  Lonl%  9  Mo.  190;  State 
V.  Coiiklin,  35  Wis.  21;  Pulford  v.  Pire  I)ept., 
31  Mich.  458;  1 1  ayden  \.  Noyes,  oConw.  ^'d\. 
So  if  they  are  inconsistent  with  the  provisions 
of  the  charter:  (Jarr  v.  St.  Louis,  9  Mo.  191; 
Karney  v.  A/nlreirs,  2  Stockt.  Ch.  70;  State  v. 
Curtis,  <l  Nev.  325;  Martin  v.  Naskmlle  etc. 
Axs'n,  2  Coldw.  418.     A  by-law  good  in  part 


Mechanics^  Bank  v.  Smith,  19  .Johns.  1 15;  ll'or- 
ce-ster  v.  Easrz  Brid(je  Co.,  7  Gray,  457;  Mechati' 
/c.s'  Bank  V.  A'.  Y.  1-  X.  //.  /.'.  A'.  Co.,  13  N.  Y. 
599;  Sii.sqnehanna  Ins.  Co.  v.  Penine.  7  Watts 
&  S.  348;  Cnmmimjx  v.  Wehsler,  4.i  Me.  192; 
Palmyra  v.  Morton.,  25  Mo.  593;  State  v.  Oeer- 
ton.  4  Zab.  435. 

But  a  person  dealing  with  a  coqioration  is 
not  charged  with  notice  of  the  by-laws:  Smith 
V.  SmU.li,  02  111.  493,  497;  Khi<]<ley  v.  .V.  E. 
Mat.  F.  Ii'.i.  Co.,  8  Cush.  393;  Fiy  v.  Xoble,  12 
Id.  1;  IVild  V.  Ba.nk  of  Passdmn'piodly,  '^  Ma- 
sou,  500;  Merrhaii/s'  Bank  v.  State  Bank,  10 
Wall.  004,  G50;  Jackson  Inx.  Co.  v.  Cruss,  9 
Heisk.  283.  Oae  who  buys  shares  of  stock 
bonii  fde  from  a  shareholder  without  actual 
notice  of  a  lien  thereon  imposcil  by  a  by-laiv 


and  bad  in  part  will  be  sustained  as  to  that     takes  the  stock  dischargi-d  of  thelin:  Amjlo 


which  is  good,  if  separalde  from  that  which  is 
objectionable:  Aaie.-ibury  y.  Bowditch  //w.  Co., 
0  (iray,  .'"/9(i;  llmjtrs  v.  Jones,  1  Wend.  237; 
ShiUon  V.  Mayor,  30  Ala.  540.  A  by-law  voiil 
as  to  strangers  and  non-assenting  members  may 
be  good  as  a  contract  as  to  assenting  members: 
Slee  V.  Bluom,  19  Johns.  45G;  Cooper  v.  Fred- 


Cal.  Bank  v.  (Jraid/eri'  Bank,  03  Cal.  3")9.  See, 
however,  the  discussion  of  this  (juestioii  in  the 
note  to  Brice'a  Ultra  Vires,  470,  471.  Stran- 
gers doing  business  witli  a  corporation  have 
been  held  chargeable  with  notice  of  its  charter: 
JJoi/t  v.  Thoinp.-ion,  19  N.  Y.  207;  Sidiman  v. 
Frnlericksbanj  li.  11.  Co.,  27  Gratt.  1 19, 130, 131 . 


302.    Dlrcdorx,  election  of,  etc. 

Sec.  1502.  The  directors  of  a  corporation  must  be  elected  annually  by  the 
stockholders  or  members,  and  if  no  provision  is  made  in  the  by-laws  for  the 
time  of  election,  the  election  must  be  held  on  the  first  Tuesday  in  June.    Notice 

73 


§§  303,  304 


COnrORATIONS. 


[Dnr.  I,  Part  IV, 


of  such  election  must  be  given,  and  the  right  to  vote  determined  as  prescribed 
iu  section  three  hundred  and  one. 


Postponing  election:  See  sec.  314,  and  sec. 

3015,  prk. 

The  notice  of  meeting  must  be  given  in  the 
manner  prescribed  by  the  statute  iu  onler  to  be 
cffeetual:  Stoclholdcr  v.  Louisville  R.  li.  Co., 
\1  IJiish,  (12;  Johnston  v.  Jones,  23  N.  J.  Eq, 
210;  S'eifiif  v.  Eden  Mee/ing-hoiise,  12  Vt. 
GS8;  San  linenavnitiira  Mfij.  Co.  v.  Vasxanlt, 
50  Cal.  543.  Notice  of  special  meeting  shoulil  be 
personal  unless  otherwise  provided  in  tlie  char- 
ter or  by-laws:  Harding  v,  VandevKtter,  40 
Id.  77.  Tlie  notice  must  designate  the  hour 
of  the  day  as  well  as  the  day  when  the  meeting 
will  be  lield:  San  Buenaventura  MJij.  Co,  v. 
Vofinault,  50  Id.  543.  It  will  be  presumed 
that  the  notice  was  regular  until  tlie  contrary 
be  shown:  Sar(jeut  v.  Webster,  13  Met.  497; 
McDaniel.t  v.  Flower  Brook  Mf<j.  Co.,  22  Vt. 
274.  When  there  is  no  provision  requiring  no- 
tice to  be  given,  whether  the  f].\ing  of  the  day 
in  the  charter  or  in  the  by-laws  dispenses  with 
the  necessity  of  notice  so  far  as  concerns  the 
regularity  of  the  ordinary  transactions  at  the 
meeting,  is  a  mooted  question:  Consult  Mora- 
wetz  on  Corp.,  sec.  357,  and  Angell  &  Ames  on 
Corp.,  sec.  488,  holding  t!ie  affirmative.  Tlie 
notice  ought  to  show  that  it  is  given  by  a  person 
having  authority  to  give  it:  Johnston  v.  Jime-'^, 
23  N.  J.  Eq.  216;  Stevens  v.  Eden  Meeting-house, 
12  Vt.  688;  Bethany  v.  Sperrij,  10  Uonu.  200. 


In  a  note  to  Stow  v.  Wy-te,  1 S  Am.  Dec.  99, 
104,^the  editor  of  the  American  Decisions  states, 
as  a  general  conclusion  upon  tlie  contents  of  a 
notice:  "A  notice  of  a  corporate  meeting  siiould 
state:  1.  The  time  of  tlie  meeting,  unless  tliere 
is  a  regular  time  fixed  in  tlie  charter  or  by-laws 
of  which  every  member  is  presumed  to  have 
notice:  Angell  &  Ames  on  Corp.,  sec.  488; 
People  V.  Batchelor,  22  N.  Y.  128;  Atlantic 
Ins.  Co.  V.  Sanders,  36  N.  II.  2.-)2;  2.  The 
place  where  it  is  to  be  held,  unless  the  place  is 
settled  and  established  by  tlie  charter  or  by- 
laws: Aiiu'ell  &  Ames  on  Corp.,  sec.  406;  Jones 
V.  Milton  d:  R.  T.  Co.,  7  Ind.  547;  3.  The  busi- 
ness to  be  transacted  thereat:  Damjison  v. 
Bowdoinhdm  S.  M.  Corp.,  36  Me.  78;  Warner 
V.  Mower,  11  Vt.  385;  Merritt  v.  Fnrris,  22 
111.  303;  4.  Notice  should  be  personal,  unless 
it  is  otherwise  provided  in  the  charter  or  by- 
laws: Angell  &  Ames  on  Corp.,  sec.  491;  Evana 
V.  Osgood,  18  Me.  213;  Stevens  v.  Eden  Meeting- 
house, 12  Vt.  688;  Bethany  v.  S perry,  10  Conn. 
200;  Wigqin  v.  Freevoill  Bap.  Church,  1  Met. 
.301;  Savings  Bank  v.  Davis,  8  Conn.  190;  5. 
The  suinmons  must  be  issued  by  one  who  has 
authority:  Angell  &  Ames  on  Corp.,  sec.  491; 
Evans  v.  Osjood,  18  Me.  213;  Stevens  v.  Eden 
Mfeting-liouse,  12  Vt.  688;  Bethany  v.  Sperryt 
10  Conn.  200. 


303.   By-laws,  for  what  may  provide. 

Sec.  303.  A  corporation  may,  by  its  by-laws,  where  no  other  provision  ia 
specially  made,  provide  for: 

1.  The  time,  place,  and  manner  of  calling  and  conducting  its  meetings; 

2.  The  number  of  stockholders  or  members  constituting  a  quorum; 

3.  The  mode  of  voting  by  proxy; 

4.  The  time  of  the  annual  election  for  directors,  and  the  mode  and  manner 
of  giving  notice  thereof; 

5.  The  compensation  and  duties  of  officers, 

6.  The  manner  of  election  and  the  tenure  of  office  of  all  officers  other  than 
the  directors ;  and, 

7.  Suitable  penalties  for  violations  of  by-laws,  not  exceeding,  in  any  case, 
one  hundred  dollars  for  any  one  offense.  [Amendment,  approved  Mardi  30, 
1874;  Amendments  1873-4,  20;  took  effect  July  2,  1874.] 

By-laws  may  also  provide  for  amount  of     Sec.  344.     For  what  the  by-liws  of  non-profit- 


stock  tu  he  (iwiied  by  director:  Sec.  30">,  po>t; 
for  the  niliiig  of  vacancies  on  the  board  of  di- 
rectors: Id.;  for  the  duties  of  directors:  See. 
308;  for  the  issuing  of  certificates  of  stock  be- 
fore full  ji.vyment  therefor:  Sec.  323;  for  the 
disposal  of  stock   owned   by  the   corporation: 


able  corporations  may  provide,   see   sec.  599, 

pOxt. 

Nature  and  elfeot  of  by-la-^vs.  generally: 

Sea  (I  ite.  seo.  301,  and  note. 

Po  jyers  of  corporatioaa:  See  po^t,  sec.  354, 
and  note. 


304.    Recording  and  amendment  of  by-laws. 

Sec  304.  All  bj'^-laws  adopted  must  be  certified  by  a  raajorit}'  of  the  directors 
and  secretary  of  the  corporation,  aud  copied  in  a  legible  haul  ia  some  book 
kept  in  the  office  of  the  corporation,  to  ba  known  as  the  "book  of  by-l,iws," 
and  no  by-law  shall  take  effect  until  so  copied,  and  the  book  sli  ill  then  be 
opened  to  the  inspection  of  the  public  during  office  hours  of  e.i'.:h  il  ly  except 
holidays.  The  by-laws  may  be  repaalei  or  a-naudad,  or  new  by-l.iw-J  m.iy  be 
adopted,  at  the  annual  meeting,  or  at  any  other  meeting  of  the  stockhoUIera  or 

74 


Title  I,  Cn.\p.  I.]  FORMATION  OF  CORPORATIONS.  §  305 

members,  called  for  that  purpose  Ly  the  directors,  by  a  vote  representing  two 
thirds  of  the  subscribed  stock,  or  by  two  thirds  of  the  members.  The  written 
assent  of  the  holders  of  two  thirds  of  the  stock,  or  two  thirds  of  the  members 
if  there  be  no  capital  stock,  shall  be  effectual  to  repeal  or  amend  any  by-law, 
or  to  adopt  additional  by-laws.  The  power  to  repeal  and  amend  the  by-laws, 
and  adopt  new  by-laws,  may,  by  a  similar  vote  at  any  such  meeting,  or  similar 
written  assent,  be  delegated  to  the  board  of  directors.  The  power,  when  dele- 
gated, ma}'  be  revoked  by  a  similar  vote,  at  any  regular  meeting  of  the  stock- 
holders or  members.  Whenever  any  amendment  or  new  by-law  is  adopted,  it 
shall  be  copied  in  the  book  of  by-laws  with  the  original  by  laws,  and  imme- 
diately after  them,  and  shall  not  take  effect  until  so  copied.  If  any  by-law  be 
repealed,  the  fact  of  repeal,  with  the  date  of  the  meeting  at  which  the  repeal 
was  enacted,  or  written  assent  was  filed,  shall  be  stated  in  said  book,  and  until 
so  stated  the  repeal  shall  not  take  effect.  [Amendment,  approved  March  14, 
1885;  Slotideii  and  Amendmenfs  1885,  130.] 

Repeal  or  amendment  of  a  by-law  may  be  See  Hall  v.  Crandall,  29  Cal.  5G7,  upon  tlie 
effected  by  tlie  same  [jower  wliich  created  it:  effect  of  a  nnn-complianoe  with  tlie  statute  then 
Smith  V.  NtUoii,  18  Vt.  511,  u.30.  in  existeuce  as  to  the  recordiuy  of  by-laws. 

305.   How  many  and  wlio  to  he  directors. 

Sec.  305.  The  corporate  powers,  business,  and  property  of  all  corporations 
formed  under  this  title  must  be  exercised,  conducted,  and  controlled  by  a  board 
of  not  less  than  five  nor  more  than  eleven  directors,  to  be  elected  from  among 
the  holders  of  stock;  or  where  there  is  no  capital  stock,  then  from  the  members 
of  such  corporations;  except  that  corporations  formed,  or  to  be  foi-med,  for  the 
purpose  of  erecting  and  managing  halls  and  buildings  for  the  meetings  and 
accommodation  of  several  lodges  or  societies  of  any  benevolent  or  charitable 
order  or  organization,  and  in  connection  therewith  the  leasing  of  stores  and 
offices  in  such  building  or  buildings  for  other  purposes,  the  corporate  powers, 
business,  and  property'  thereof  may  be  conducted,  exercised,  and  controlled  by 
a  board  of  not  less  than  five  nor  more  than  fifty  directors,  to  be  chosen  from 
among  the  stockholders  of  such  corporation  or  from  among  the  members  of  such 
order  or  organization.  A  majority  of  the  directors  must  bo  in  all  cases  citizens 
of  this  state.  Directors  of  corporations  for  profit  must  be  holders  of  stock 
therein  in  an  amount  to  be  fixed  by  the  by-laws  of  the  corporation.  Directors 
of  all  other  corporations  must  be  members  thereof.  Unless  a  quorum  is  present 
and  acting  no  business  performed  or  act  done  is  valid  as  against  the  corpora- 
tion. Whenever  a  vacancy  occurs  in  the  office  of  dix'ector,  unless  the  by-laws 
of  the  corporation  otherwise  provide,  such  vacancy  must  be  tilled  by  aa 
appointee  of  the  board.  [Amendment,  approved  January  20,  187G;  Amendments 
187  5-G,  71;  took  effect  from  passage.] 

Stats.   ISoS,   1G9;   180G,  743-7o2;   1850,178,  holder:  ««<«  v.  il/cZ>an2W,  22  Ohio  St.  .So4.     A 

347,  sees.  ir.9.  345,  317;   18G2,  199;   ISCS,  G21.  nou-compliance  with   the  condition   docs   not 

Tho  corporate  powers  must  b3  exercisad  viciato  the  director's  acts;  lie  is  Je  facto  tho 

by   trustees  selected    from  the   stock'.olders  representative  of  the  corporation:  S.  J.  S(trhi;ja 

or   mcnilicrs:   Gaxhu'dcr  v.    Uiltis,  33  Cal.  II;  Jjciiik  v,  ■'^irra  L.  Co.,  G'.i  Cal.    179;   i/VZ/jj  v. 

Blood  V.  Marru.fe,  38  Id.  593.     The  dircctois  North  Carolina  Instit.,  GS  N.  C.  423.     Director 

of  a  corporation  arc  its  chosen  representatives,  niu-t  be  a  stockholder;  but  if,  wliilo  a  director, 

and  constitute  the  corporation  for  all  purposes  lie  disposes  of  all  of  his  stock  he  stid  continuea 

of  <leal!Ug  with   others.     They  are  the   mini  to  be  a  director  (/e /nr/o,  so  us  to  validate  his 

and  soul  of  t!ie  corporate  cntit}-,  and  wl;atlhcy  acts  as  such  [)rior  to  his  lemoval:  .V.  J.  Savings 

do  as  the  representatixesof  the  corporation  tlie  Ba.l:  v.  S'erra  L.  (.'0.,  G'■^  Cal.  179.     As  to  the 

corjioration  itself  is  deemed  to  do:  Maynard  v.  presumption   of   dii-cctor's   acceptance    of    hia 

Fircniuii.f  Fluid  lux.  Co.,  31  Id.  48.  election,  see  Lockwood  v.  Mech.  Xat.  Bink,  9 

Condition  as  to  holding  stook. — Unless  K  I.  3j3,  311:  Blake  v.  Bu/j'c;/,  !U(/ray,  531. 
required  by  the  charter  or  by-laws,  to  be  eli:;i-         UlcjrJiLy  of  el3Jtion  of  uireo;;or3  camiot 

ble  as  a  director  a  person  need  not  be  a  share-  b3  ocliaterally  raised:   Eakrijht  v.  Lujaiia- 


§§  SCG-309  COnPOr.ATIONS.  Prv.  I,  Part  IV, 

port  A'.  R.  Co.,  13  Ind.  404;  Sfnnmctz  v.  Ver-    4S3:  irnghfis  v.  Pnrlcer,  20  N.  H.  58;   Ohio  ^c 
sullli:s  r.  Co.,  57  M.  457;  Allaidic  /.'.  A'.  Co.  v.     R.  /?.  Co.  v.  McPhernon,  35  Mo.  13. 
Johiisloa,  70  N.  C.  348;  Walker  v.  Flemiwj,  Id.        Acts  of  tha  directors:  See  see.  308,  |>o«<. 

306.  Directors  to  he.  elected  at  first  meelinrf. 

Sec.  bog.  At  the  first  meeting  at  which  the  by-laws  are  adopted,  or  at  such 
fiubsequeut  meeting  as  may  be  then  designated,  directors  must  be  elected,  to 
hold  their  offices  for  one  year,  and  until  their  successors  are  elected  and  quali- 
fied. \Anv'n(}ment,  approved  March  30,  1874;  Ameadmenls  1873-4,  202;  took 
egect  Jalij  1,  1874.] 

Fir'st  board  of  directors  13  to  be  elected  at  Maunor  of  electins:  See  sec.  307;  and 
the  first  tiKctiu^  at  wliich  liy-lawa  are  a(loi)teil.  eleijfciom  >j;enei-allv:  Sec.  312,  and  note. 
Section  ."lOI  provider  when  the  by-laws  arc  to  be  Directors  hold  over  untd  their  successors 
fnum-d;  and  section  290  reijuires  that  the  direc-  are  e'ected  and  qualitied,  unless  otherwise  pro- 
tors  to  lie  elected  for  the  first  year  shall  be  vided:  People,  v.  Rankin,  9  Johns.  147;  Trns- 
uanied  in  the  iirtir'psof  iiicor]>oration.  Corpo-  tefn  of  Vernon  Sorieti/  v.  Jliilt,  6  Cow.  23;  Mc- 
ration  cnnnot  take  from  shareh'ollersthe  right  to  Call  v.  Bryan  Mfg.  Co.,  6  Conn.  428. 
elect  directors:  Brewster  v.  Hartley,  37  Cal.  15. 

307.  Eh'clions;  how  conducted. 

Sec.  307.  All  elections  must  be  by  ballot,  and  every  stockholder  shall  have 
the  right  to  vote  in  person  or  by  proxy  the  number  of  shares  standing  in  his 
name,  as  provided  in  section  three  hundred  and  twelve  of  this  code,  for  as 
many  persons  as  there  are  directors  to  be  elected,  or  to  cumulate  said  shares 
and  give  one  candidate  as  many  votes  as  the  number  of  directors  multiplied  by 
the  number  of  his  shares  of  stock  shall  equal,  or  to  distribute  them  on  the 
same  principle  among  as  many  candidates  as  he  shall  think  fit.  In  corpora- 
tions having  no  capital  stock,  each  member  of  the  corporation  may  cast  as 
many  votes  for  one  director  as  thei'e  are  directors  to  be  elected,  or  may  distrib- 
ute the  same  among  any  or  all  of  the  candidates.  In  either  case,  the  directors 
receiving  the  highest  number  of  votes  shall  be  declared  elected.  [Amendment, 
approved  February  1, 1878;  Amendments  1877-8,  78;  took  effect  sixtieth  day  after 
passage.  ] 

Stats.  1S.13,  150;  18G1,  fi07;  1850,  347,  231;  1870,  577. 
Eleatioas,  how  conducted:  See  sec.  312. 

308.  Orgnnizalion  of  board  of  directors,  etc. 

Sec.  308.  Immediately  after  their  election,  the  directors  must  organize  hj 
the  election  of  a  president,  who  must  be  one  of  their  number,  a  secretaiT,  and 
treasurer.  They  must  perform  the  duties  enjoined  on  them  by  law  and  the  by- 
laws of  the  corporation.  A  majority  of  the  directors  is  a  sufficient  number  to 
form  a  board  for  the  transaction  of  business,  and  every  decision  of  a  majority 
of  the  directors  forming  such  board,  made  when  duly  assembled,  is  valid  as  a 
corporate  act. 

TIi3  directors  are  agents  of  th3  corpora-  indivi  Inals  was  held  to  operate  aa  if  issued  to 

tion  only  when  they  act  as" a  board;  as  a  gjn-  the  board:  Statev.  Wrirjhf,  10  Nev.  1G7.     And 

eral   rule,    individually    the   members  of    the  where  a  custom   has  sprung  up  to  order  the 

board  do  not  represent  the  corporation:  Gaxh-  performance  of  work  and  furnisliing  supplies 

wler  v.  Willis,   33  Cal.    II;  Blood  v.  Marcus",  witho  it  the  formality  of  a  vote  by  the  trustees, 

o8  Id.  503;   Yilloio  Jarl:.et  Mitiinj  Co.  v.  Ste-  a  person  dealing  with  a  trustee  on  the  faitii  of 

veiison.  5  Nev.  224;  Stoystown  tfc  Greembnrif  T.  this  custom  may  hold  the  coi-poration:   Rank 

Co.  V.  Career,  45  Pa.  St.  3S6;  Ross  v.  Crorlce't,  of  iMahlhlmry  v.    R.  <L-  W.  R.  R.  Co.,   33  Vt. 

14  La.  Ann.  81 1;  JJey  v.  Jersey  City,  10  N.  J.  153;  Bradstreet  v.  Bank  of  Royaldon,  42  Id. 

Eq.    412;    Srlinima   v.   Seymo%ir,   24   Id.    153;  128. 
although  a  maudamua  issued  to  the  trustees  as 

309.  Dividends  to  be  made  from  surplus  profits. 

Sec.  300.  The  directors  of  corporations  must  not  make  dividends,  except  from 
the  surplus  profits  arising  from  the  business  thereof;  nor  must  they  divide, 
witbdiuw,  or  pay  to  the  stockholders,  or  any  of  them,  any  part  of  the  capital 

76 


Title  I,  Cuap.  I.] 


FORMATION  OF  CORPORATIONS. 


§310 


stock;  nor  must  tliey  create  debts  beyond  their  subscribed  capital  stock,  or 
reduce  or  increase  the  capital  stock,  except  as  hereinafter  specially  provided. 
For  a  violation  of  the  provisions  of  this  section,  the  directors  under  whose 
administration  the  same  may  have  happened  (except  those  who  may  have  caused 
their  dissent  therefrom  to  be  entered  at  large  on  the  minutes  of  the  directors  at 
the  time,  or  were  not  present  when  the  same  did  happen)  are  in  their  individual 
and  private  capacity  jointly  and  severally  liable  to  the  corporation,  and  to  the 
creditors  thereof,  in  the  event  of  its  dissolution,  to  the  full  amount  of  the 
capital  stock  so  divided,  withdrawn,  paid  out,  or  reduced,  or  debt  contracted; 
and  no  statute  of  limitations  is  a  bar  to  any  suit  ag'aiust  such  directors  for  any 
Bums  for  which  they  are  made  liable  b}'  this  section.  There  may,  however,  be 
a  division  and  distribution  of  the  capital  stock  of  any  corporation  which  remains 
after  the  payment  of  all  its  debts,  upon  its  dissolution,  or  the  expiration  of  its 
term  of  existence. 

y.  G.  cf-  C.  .<?.  M.  Co.,  .SI  Cal.  G20.  And  demand 
is  necessary  before  the  action  is  brougiit:  I/wjar 
V.  Union  N<il.  Bank,  03  Me.  501);  ScoU  v,  Ctnt. 
li.  R.  Co.,  5-2  Barb.  4.). 

Apportionment  of  dividends. — As  a  gen- 
eral rule,  it  may  be  stateil  that  ilividenils  iu  a 
corporation  are  not  a[)portionabk' — tliey  bulong 
to  tlie  owner  of  the  sliarcs  wiicn  they  were  de- 
clared payable:  Goodwin  v.  llardij,bl  Me.  145; 
BrnndcKjc  v.  UrnndcKje,  GO  N.  Y.  TjoI  ;  March  v. 
Un'ilroiid,  43  N.  II.  5'20.  The  time  when  the 
profits  of  the  corporation  business  were  realized 
is  not  I'egarded.  in  the  absence  of  provision  iu 
the  ptatiitcs,  charter,  or  bydaws:  JJczter  v. 
Philllp.'i,  121  Mass.  180.  This  very  ditiiculty 
of  ascertaining  when  the  eariung  did  accrue,  is 
tlie  reason  generally  given  for  tleclai-ing  divi- 
dends not  ai)portionable:  Foute,  Ap/nU'nif,  22 
Pick.  304;  but  see  103  Mass.  34r>;  Gnunji-r  v. 
BassM,  08  Id.  4(JS;  Eirp'ii  Will,  1  Pars.  E«i".  Cas. 
4:)3;  S.  C,  28  l\i.  St.  3GS. 

Compelling  the  declaration  of  dividsnda, 
In  the  absence  of  some  2>i'ovision  in  the  cliarter 
or  bydaws  to  the  contrary,  the  directors  are 
vested  with  a  discretionary  power  in  regard  to 
the  njanagemeiit  of  the  earnings  of  the  corpora- 
tion, the  time  of  declaring,  and  amount  of  the 
dividends;  and  a  slianholdcr  cannot  conii'el  the 
directors  to  declare  a  clividend  wlien  tliey  are 
notacting  in  violation  of  tiieir  cliarter:  PkM  v. 
Pratt,  3;JConn.  44G;  State  v.  Baiikof  Loui-tiaua, 
G  La.  74.');  Hniilh  v.  Prattril'e  Mj'ij.  Co..  21)  Ala, 
503;  Ikirnj  v.  Mcrchanlx^  Kxcli.  Co.,  I  Sandf. 
280,  303.  Otherwise,  wiiere  the  directors  are 
wrongfully  refusing  to  declare  tiie  dividends: 
BrcrM  V.  Brid'ji'jxn-t  Sprini;  Co.,  42  Conn.  17; 
Scoft  V.  Eaijlc  F.  Ins.  Co.,  7  Tai  e,  203. 

Directors  liability  for  d3.;liri.ig  divi- 
dends v^lien  there  is  no  surplus:  .Sec  Thomp- 
son's Liability  of  Ollicers  of  Corp   4.j3. 

Director's  liability  for  embez3lem9nt  by 
officers  of  corporation:  Const.  Cal.  1S7'.),  art. 
12,  sec.  3. 

Dividends  of  insurance  companies:  See 
post,  sees.  417,  429. 

Misappropriation  of  corporate  property: 
Sec  ShaUiick  v.  Oakland  S.  cC-  li.  Co.,  58  Cal. 
550,  wiiere  the  trustees  sought  to  vote  them* 
selves  the  property  of  the  corporation. 


Stats.  1850,  348;  1861,  GOT,  sec.  50;  ISGl,  G2G, 
sec.  5G;  18GG,  747-757;    1853,  89,  sees.  13,  14. 

Penalty  for  violation  of  this  section:  See  Pen. 
Code.  stc.  TGO. 

Dividends.— The  prohibition  contained  in 
this  section  is  directed  against  the  tiustees, 
and  is  designed  to  [irotect  creditors,  and  to 
guard  against  the  distribution  of  the  capital 
stock  in  the  form  of  dividends:  Martin  v. 
Zellerliacli,  38  Cal.  390.  It  is  a  fundamental 
principle  tliat  dividends  can  be  paid  only  out 
of  the  profits  or  the  net  increase  of  the  capital 
of  a  corporation:  Morawetz  on  Corp.,  sec.  344. 
Any  arrangement  uhich  will  have  the  effect  to 
withdraw  the  capital  and  turn  it  over  to  tlie 
stockholders,  except  in  the  manner  autlioiized 
by  law,  is  void:  Martin  v.  Zdlerhnrh,  38  Cal. 
300;  Lockharl  v.  \'an  Alstyne,  31  Mich.  7G; 
PaineHrille  F.  R.  Co.  v.  Kiu(j,  17  Ohio  St.  53t; 
Pittsbimjk  R.  R.  Co.  V,  Alk'ijhanr/,  Gil  Pa.  St. 
12G,  13.3.  "Dividend"  means  a  sum  which 
the  corporation  sets  apart  from  its  profits  to  be 
divided  amongst  its  niembers:  Lockhart  v.  Van 
Altti/nc,  31  Midi.  7G.  As  to  the  meaning  of 
"profits,"  see  Field  on  Corp.,  sec.  104.  Any 
attempt  to  distribute  capital  in  the  shape  of 
dividends  will  be  restrained  in  equity  at  the  suit 
of  a  stoekhoUlei-:  Car/ienter  v.  X.  Y.  ,i-  N.  //. 
/?.  //.  Co.,  5  Abb.  I'r.  277;  and  see  the  numerous 
English  citations  in  Morawetz  on  Cor[i.,  sec. 
404.  Dividends  may  be  jiaid  in  scrip  or  in 
shares  of  stock:  //arris  v.  S.  F.  Snf/ar  /icfinerij, 
41  Cal.  293;  /irown  v.  Leiiiy/i  Coal  etc.  Co.  ,'49  Pa. 
St.  270;  Ohio  V.  Cleveland  R.  R.  Co.,  G  Oliio  St. 
489;  Farley  v.  C'tizcn.'i'  Gas-li<jhb  Co.,  27  N.  J. 
Eq.  190.  Altlioiigli  a  dividend  is  presumaldy 
payable  in  money:  Ehle  v.  /}an/c of  Chiltenanijo, 
24  N.  Y.  548.  One  who  receives  stock  acquires 
thereliy  an  interest  in  the  undivided  profits: 
Harris  v.  .V.  /'.  Sin/ar  Refijicri/,  41  Cal.  '.i'J'.i. 

Assumpsit  will  lie  to  recover  tlie  amount 
of  a  dividend  which  has  been  declared:  /(imj 
V.  /'alerson  /.'.  A".  Co.,  29  N.  J.  L.  82,  504;  West 
C/iestcr  /!.  A'.  Co.  V.  Jackson,  77  Pa.  St.  321.  Tlie 
plaintiir,  in  order  to  recover  from  a  corporation 
the  dividends  on  its  stock,  must  have  been  the 
owner  of  the  stock  at  the  time  the  dividends 
accrued.  Mere  possession  of  the  stock,  or  a 
special  property  thereiu,  is  not  sutEcient:  Doio 


810.    Removal  from  office  of  direclom,  etc. 

Sec.  310.     No  director  shall  be  removed  from  office,  unless  by  a  vote  of  two 
thirds  of  the  members,  or  pf  stockholders ,  holding  two  thirds  of  the  capital 

77 


U  311,  312  CORPORATIONS.  Pit.  I,  Part  IV, 

stock,  at  a  general  meeting  Leld  after  previous  notice  of  the  time  and  place, 
and  of  tbo  intention  to  propose  such  removal.  Meetings  of  stockholders  for 
this  purpose  may  be  called  by  the  president,  or  by  a  majority  of  the  directors, 
or  by  members  or  stockholders  holding  at  least  one  half  of  the  votes.  Such 
calls  must  be  in  writing,  and  addressed  to  the  secretary,  who  must  thereupon 
give  notice  of  the  time,  place,  and  object  of  the  meeting,  and  by  whose  order 
it  is  called.  If  the  secretary  refuse  to  give  the  notice,  or  if  there  is  none,  the 
call  may  be  addressed  directly  to  the  members  or  stockholders,  and  be  served 
as  a  notice,  in  which  case  it  must  specify  the  time  and  place  of  meeting.  The 
notice  must  be  given  in  the  manner  provided  in  section  three  hundred  and  one 
of  this  title,  unless  other  express  provision  has  been  made  therefor  in  the 
by-laws.  In  case  of  removal,  the  vacancy  may  be  filled  by  election  at  the 
same  meeting. 

311.  Justice  of  peace  may  order  meeting,  when. 

Sec.  311.  Whenever,  from  any  cause,  there  is  no  person  authorized  to  call 
or  to  preside  at  a  meeting  of  a  corporation,  any  justice  of  the  peace  of  the 
county  where  such  corporation  is  established  may,  on  written  application  of 
three  or  more  of  the  stockholders  or  of  the  members  thereof,  issue  a  warrant 
to  one  of  the  stockholders  or  members,  directing  him  to  call  a  meeting  of  the 
corporation,  by  giving  the  notice  required,  and  the  justice  may  in  the  same 
"Warrant  direct  such  person  to  preside  at  such  meeting  until  a  clerk  is  chosen 
and  qualified,  if  there  is  no  other  officer  present  legally  authorized  to  preside 
thereat. 

312.  Majority  of  slock  m^ist  be  represented. 

Sec.  312.  At  all  elections,  or  votes  had  for  any  purpose,  there  must  be  a 
majority  of  the  subscribed  capital  stock,  or  of  the  members,  represented  either 
in  person  or  by  proxy  in  writing.  Eveiy  person  acting  therein  (in  j^erson,  or 
by  proxy,  or  repi-esentative)  must  be  a  member  thereof,  or  a  bona  fide  stock- 
holder, having  stock  in  his  own  name  on  the  stock-books  of  the  coi'poration  at 
least  ten  days  prior  to  the  election.  Any  vote  or  election  had  other  than  in 
accordance  with  the  provisions  of  this  article  is  voidable  at  the  instance  of 
absent  (or  any)  stockholders  or  members,  and  may  be  set  aside  by  petition  to 
the  district  coui't  of  the  county  where  the  same  is  held.  Any  regular  or  called 
meeting  of  the  stockholders  or  members  may  adjourn  from  day  to  day,  or  from 
time  to  time,  if,  for  any  reason,  there  is  not  present  a  majority  of  the  sub- 
scribed stock  or  members,  or  no  election  had,  such  adjournment  and  the  rea- 
sons therefor  being  recorded  in  the  journal  of  proceedings  of  the  board  of 
directors.  {Amendment,  approved  February  1,  1878;  Aimiidments  1877-8,  79; 
took  effect  from  passage. \ 

Notice  of  meeting:  See  sec.  302,  and  note.  v.   BanTc  oj  Kewhiirfjh,   6    P.iige,   S37.      The 

Voting  by  proxy. — By  the  common  law  all  proxy  must  be  given  in  the  name  of  the  owner 

voting  was  required  to  be  done  in  person:  1  Bla.  as  disclosed  by  the  books  of  the  corporation: 

Com.  lOS.     In  all  cases  of  elections  in  public  Matter  of  the  Mohawk  J:  Hudson  li.  Ji.  Co.,  19 

corporations,  every   vote   must  be  personally  SVend.  1.35. 

given:  2  Kent's  Com.  294,  The  question  of  Wno  may  vote. — To  entitle  shares  of  stock 
proxy  voting  in  private  corporations  is  one  to  be  voted  at  a  meeting,  the  evident  moaning 
much  disturbed,  where  statute  has  not  set  the  of  the  above  section  is  tJiat  they  nmst  be 
matter  at  rest.  In  this  country  the  legisla-  voted  by  the  owner  thereof  appearing  as  such 
tures  of  nearly  all  the  states  have  permitted  owner  on  the  books  of  the  corporation,  or  by 
such  votiui^,  and  have  prescribed  regulations  his  representative.  Stuck  standing  in  tiie  name 
in  regard  thereto:  See  the  note  to  Taylor  v.  of  a  person,  "  trustee,"  to  whom  it  had  been  so 
Oriswolit,  .30  Am.  Dec.  60,  where  the  statutory  issued  without  authority  of  the  owner,  cannot 
enactments  in  the  several  states  are  collated,  be  voted  by  him,  it  appearing  that  he  had  no 
A  proxy,  even  for  value,  may  be  revoked  if  interest  whatever  in  the  stock,  was  not  a  share- 
about  to  be  used  for  fraudulent  purposes:  Heed  holder  himself,  and  held  no  proxy  from  the 

7« 


Title  I,  Chap.  I.] 


FORMATION  OF  CORPORATIONS. 


§§  313-315 


owner:  Sfeirart  v.  Mdhoney  Mining  Co.,  54 
Cal.  149.  But  it  has  been  said  tliat  the  corpo- 
ration cannot  be  required  to  examine  into  the 
nature  of  tlie  trust  existing  between  the 
"trustee  "  and  the  owner,  and  that  the  person 
in  whose  name  as  trustee  shares  of  stock  stand 
upon  the  books  of  the  company  shouUl  be  en- 
titled to  vote  the  same:  Iloppin  v.  Birffum,  9 
R  I.  513;  ]ViL<ion  v.  Proprietors,  Id.  COO.  This 
last  case,  however,  casts  some  doubt  upon  the 
Talidity  of  such  a  vote  if  the  real  owner  ob- 
jects. See  tiie  early  case  in  California,  Allen 
V,  II /ll,  16  Cal.  1 13,  as  to  the  rights  of  the  real 
owner  of  the  stock.  In  Iloppin  v.  Bvffum, 
mij^ra,  \he  reason  why  transfers  of  stock  are 
required  to  be  made  on  the  books  of  tlie  cor- 
poration is  thus  explained,  in  discussing  the 
rigl'.t  of  vciting  on  shares:  "The  object  of  the 
Btock-book,  and  of  requiring  transfers  of  stock 
to  be  recorded  by  the  corporation,  is  for  the 
proteclion  nf  the  corjioration,  to  enable  it  to 
know  \\ho  are  its  members,  who  are  entitled  to 
dividends;  and  for  no  purpose  is  it  more  im- 
portant than  to  enable  it  to  know  who  are  en- 
titled to  vote  in  case  of  an  election.  This  doc- 
trine is  recognized  by  many  authorities  ex- 
presfsh',  anil  by  many  others  impliedly:  (•'ilhcrt 
V.  Mani'fnctiiriiKj  Jron  Co.,  11  Wend.  G27; 
Bavk  of  Ul'tca  v.  SmaUeif,  2  Cow.  770,  77S; 
Kirtr'tqht  v.  Bavk  of  Bv'fa'o,  9.2  Wend.  348, 
362;  i'i.-ihpr  v.  Ess'-x  Bank,  5  Gray,  373,  .380; 
IIo"(j!aml  v.  B<1',  3G  Barb.  57,  58." 

Pledgee  in  whose  name  stock  stands  may 
vote:  I/oppi.i  v.  Ihtffitm,  9  R.  1.  513;  although 
the  pledgi  r  miglit  compel  a  transfer  to  bin), 
and  thereby  acquire  the  right  to  vote:  Id. 
A  pledgor  may    vote   the  stock  standing   in 


his  name:  Ex  parte  WillcocJ:^,  17  Am.  Dec.  52S. 
A  mortgagor  is  entitled  to  power  of  attorney  to 
vote  the  mortgaged  shares:  Voicell  v.  Thomp- 
son, 3  Cranch  C.  C.  428.  A  vendor  may  vote 
tlie  sold  shares  until  the  transfer  is  made  on 
the  books:  O'Neil  v.  Tenth  Nat.  Bank,  46  N. 
Y.  332;  Moussfaux  v.  Urqnhnrt,  19  La.  Ann. 
482;  JohnMon  v.  Jones,  23  N.  J.  Eq.  228; 
Dou'iiing  v.  Potts,  3  Zab.  66;  InreLovj  Island 
R.  li.  Co.,  19  Wend.  37;  State  v.  Patinelli,  10 
Nov.  141.  But  shares  belonging  to  a  corpora- 
tion cannot  be  voted  by  any  one,  though  stand- 
ing in  the  name  of  a  trustee:  E-r  parte  Holmes, 
5  Cow.  426;  Mmisseaux  v.  Urquhart,  19  La. 
Ann.  482;  Am.  i?'?/  Companj/  v.  Haven,  101 
Mass.  398;  Bren-sterv.  Ilartlnj,  37  Cal.  15. 

Tlie  fierson  who  appears  from  the  books  of 
the  company  to  be  the  owner  of  shares  of  stock 
is  entitled  to  vote  them,  although  lie  has  trans- 
ferred them,  the  transferee  not  appearing  with 
the  stock  and  objecting:  People  v.  Poblnson,  64 
Cal.  37.3. 

Adjournment  of  meeting. — "  It  is  too  well 
settled  to  require  comment,  that  all  corpora- 
tions, whctlier  municipal  or  private,  may 
transact  any  business  at  an  adjourned  meeting 
whicii  they  could  have  done  at  the  original 
meeting.  Whether  the  meeting  is  continued 
without  interruption  for  many  days,  or  by  ad- 
journment from  day  to  day,  or  from  time  to 
time,  many  days  intervening,  it  is  evident  it 
must  be  considered  the  same  meeting,  witl)Out 
any  loss  or  accumulation  of  powers:"  Rcd- 
h'cld,  J.,  in  Warner  v.  Sloirer,  11  Vt.  .385,  391; 
and  so  Srhqlf  v.  Blnomfield,  8  Id.  472;  Smith 
V.  Laic,  21  N.  Y.  296;  People  v.  Batchdor,  22 
Id.  128. 


313.  Stock  of  minors,  insane  or  deceased,  how  represented. 

Sec.  313.  The  sliares  of  stock  of  an  estate  of  a  minor,  or  insane  person,  may- 
bo  represented  by  liis  guardian,  and  of  a  deceased  person  by  bis  executor  or 
administrator.  [Amendment,  approved  March  30,  1874;  Amendmenls  1873-4, 
203;  took  eject  July  1,  1874.] 

314.  Election  may  he  postponed. 

Sec.  314.  If  from  any  cause  an  election  does  not  take  place  on  tbe  day 
appointed  in  the  by-laws,  it  may  be  held  on  any  day  thereafter  as  is  provided 
for  in  such  by-laws,  or  to  which  such  election  may  be  adjourned  or  ordered  by 
the  directors.  If  an  election  has  not  been  held  at  the  appointed  time,  and  no 
adjourned  or  other  meeting  for  the  purpose  has  been  ordered  by  the  directors, 
a  meeting  may  be  called  by  the  stockholders,  as  provided  in  section  three  hun- 
dred and  ten  of  this  article. 

Stats.  IS.'-.O,  ,347,  sec.  168;  1853,  88;  1862,  199;  1861,  610;  1S63,  624. 
Adjournment  of  meeting:  See  note  to  sec.  312. 

315.  Complaints  and  proceedings  regarding  elections. 

Sec.  315.  Upon  the  application  of  any  person,  or  body  corporate,  aggrieved 
by  any  election  held  by  any  corporate  body,  the  district  court  of  the  district  in 
"which  such  election  is  held  must  proceed  forthwith  to  hear  the  allegations  and 
proofs  of  the  parties,  or  otherwise  inquire  into  the  matters  of  complaint,  and 
thereupon  confirm  the  election,  order  a  new  one,  or  direct  such  other  relief  in 
the  premises  as  accords  with  i-ight  and  justice.  Upon  filing  the  petition,  and 
before  any  further  proceedings  are  had  under  this  section,  five  days'  notice  of 
the  hearing  must  be  given,  under  the  direction   of  tbe  court,  or  the  judge 

79 


§§  31G-321  CORPORATIONS.  [Dxv.  I,  Part  IV, 

thereof,  to  tlie  adverse  party,  or  those  to  be  affected  thereby.     \Amendmentf 
approved  April  1,  1S78;  Amendments  1877-8,  79;  loo/c  effect  from  passage.] 

31G.    Officers  liable  for  fahe  certificates,  reporti^,  or  notices. 

Sec.  31G.  Any  officer  of  a  coq^oi'atiou  who  willfully  gives  a  certificate,  or 
willfully  makes  an  official  report,  public  notice,  or  entry  in  any  of  the  records 
or  books  of  the  corj)oration,  concerning  the  corporation  or  its  business,  which 
ia  false  in  any  material  representation,  shall  bo  liable  for  all  the  damages  result- 
ing therefrom  to  any  j)erson  injured  thereby;  and  if  two  or  more  officers  unite 
or  participate  in  the  commission  of  an}'  of  the  acts  herein  designated,  they  shall 
bo  jointly  and  severally  liable.  [Amendment,  approved  March  30,  187-1;  Amend- 
vients  1873-4,  203;  took  eff'ect  Jiihj  1,  1874.] 

317.  Mcetinrj  tyy  consent  to  he  valid. 

Sec.  317.  When  all  the  stockholders  or  members  of  a  corporation  are  present 
at  any  meeting,  however  called  or  notified,  and  sign  a  written  consent  thereto 
on  the  record  of  such  meeting,  the  doings  of  such  meeting  are  as  valid  as  if  had 
at  a  lueeting  legally  called  and  noticed. 

318.  Proceedings  at  meeting  to  be  binding. 

Sec.  318.  The  stockholders  or  members  of  such  corporation,  when  so  assem- 
bled, may  elect  officers  to  fill  all  vacancies  then  existing,  and  may  act  upon 
such  other  business  as  might  lawfully  be  transacted  at  regular  meetings  of  the 
coi'poration. 

319.  Meetings,  where  held. 

Sec.  319.     The  meetings  of  the  stockholders  and  board  of  directors  of  a  eor- 
poration  must  be  held  at  its  office  or  principal  place  of  business. 
Cliangins  place  of  business:  See  sec.  321. 

320.  When  no  provision  in  by-laws  for  regular  meetings,  special  meetings  liow  called. 
Seo.  320.     "When  no  provision  is  made  in  the  by-laws  for  regular  meetings  of 

the  directors  and  the  mode  of  calling  special  meetings,  all  meetings  must  be 

called  by  special  notice  in  writing,  to  be  given  to  each  director  by  the  secretary, 

on  the  order  of  the  president,  or  if  there  be  none,  on  the  order  of  two  directors. 

Notice  of  special  need  not  state  the  puryiose  fact  of  meeting,  the  time,  anil  the  place:  Oran- 
of  the  meeting;  it  is  sufficient  if  it  contains  the    yer  v.  Orhj'mul  E.  M.  db  M.  Co.,  59  Cal.  G78. 

321.  Jjook  and  notice  of  directors  and  stockholders  of  hanks. 

Sec  321.  Every  coi-poration  doing  a  banking  business  in  this  state  must 
keep  in  its  office,  in  a  place  accessible  to  the  stockholders,  depositors,  and  cred- 
itors thereof,  and  for  their  use,  a  book  containing  a  list  of  all  stockholders  in 
such  corporation,  and  the  number  of  shaves  of  stock  held  by  each;  and  every 
such  corporation  must  keep  posted  in  its  office,  in  a  conspicuous  place,  accessible 
to  the  public  generally,  a  notice  signed  by  the  president  or  secretaiy,  showing: 

1.  The  natnes  of  the  directors  of  such  corporation; 

2.  The  number  and  value  of  shares  of  stock  held  by  each  director.  The 
entries  on  such  book  and  such  notice  .shall  be  made  and  posted  within  twenty- 
four  hours  after  any  transfer  of  stock,  and  shall  be  couclusive  evidence  against 
each  director  and  stockholder  of  the  number  of  shares  of  stock  hold  by  each. 
The  provisions  of  this  section  shall  apply  to  all  banking  corporations  formed  or 
existing  befoi'e  twelve  o'clock  noon  of  the  day  on  which  this  code  took  effect, 
as  well  as  to  those  formed  after  such  time.  [Xew  section,  approved  January  29, 
187G;  Amendments  187o-G,  72;  took  effect  sixtieth  day  after  passage.] 

After  the  passage  of  the  above  new  section  321,  the  legi-slaturo  passed  a  secouJ  new  section 
321  as  fallows: 

80 


317.  Meeting  by  Consent  to  Be  Valid.  When  all  the 
stockholders  oi-  members  of  a  corporation  are  present  at  any 
meeting  however  called  or  notified,  and  sign  a  written  con- 
sent thereto  on  the  [records]  of  such  [meetings,  or  if  those 
not  present  sign  in  writing  a  waiver  of  notice  of  such  meet- 
ing, which  waiver  is  presented  and  made  a  part  of  the 
records  of  such  meeting],  the  doings  of  such  meeting  are  as 
valid  as  if  had  at  a  meeting  legally  called  and  noticed.  (In 
effect  60  days  from  and  after  February  22,  1909.  Stats.  1909, 
Chap.   5S.)  Civ.   Code,   1909. 


TnxB  I,  Chap.  L]  FORMATION  OF  CORPORATIONS.  §  321. 

Change  of  principal  place  of  business. 

Sec.  321.  Every  corporation  that  has  been  or  may  be  created  under  the  gen- 
eral laws  of  this  state  may  change  its  principal  place  of  business  from  one  placb 
to  another  in  the  same  county,  or  from  one  city  or  county  to  another  city  or 
county  within  this  state.  Before  such  change  is  made,  the  consent  in  writing- 
of  the  holders  of  two  thirds  of  the  capital  stock  must  be  obtained  and  filed  in- 
the  office  of  the  corporation.  When  such  consent  is  obtained  and  filed,  notice 
of  the  intended  removal  or  change  must  be  published  at  least  once  a  week  for 
three  successive  weeks  in  some  newspaper  published  in  the  county  wherein  said 
principal  place  of  business  is  situated,  if  there  is  one  published  therein;  if  not, 
in  a  newspaper  of  an  adjoining  county,  giving  the  name  of  the  county  or  eiiy 
"where  it  is  situated,  and  that  to  which  it  is  intended  to  remove  it.  [New  section^. 
approved  April  3,  187G;  Amendments  1875-6,  73;  took  effect  imviediately.] 

An  Act  concerning  corporations  and  persona  enrjnged  in  the  business  o/bankinff^ 

[Approved  April  1,  I87(>;  1875-6,  729.] 
Banks  to  publish  and  record  semi-amuial  statements. 

Section  1.  Every  corporation  and  all  persons  and  every  person  hereafter  doincf  a  banking 
business  in  this  state  ehall,  in  January  and  July  of  every  year,  publish  in  at  least  one  newspaper 
published  in  the  county  in  which  t!ie  principal  office  of  such  corporation  may  be  situated,  or  in 
which  said  persons  or  person  may  reside,  and  also  file  for  record,  in  the  recorder's  office  of  said 
county,  a  sv\orn  statement,  verified,  in  the  case  of  any  such  corporation,  l)y  its  president  or 
manager,  and  by  its  secretary  or  cashier,  and  in  tlie  case  of  any  such  individual  or  individuals, 
by  him  or  tiiem,  of  the  amount  of  capital  actually  paid  into  sucii  corporation,  or  into  such  bank- 
ing business;  provided,  that  nothing  shall  be  deemed  capital  actually  paid  in  except  money  bonai 
fide  paid  into  tlie  treasury  of  sucii  bank,  and  under  no  circumstances  sliall  the  promissory  note,, 
check,  or  otlier  obligation  of  any  director  or  stockholder,  or  of  the  proprietors  or  proprietor  of 
any  such  bank,  be  treated,  computed,  or  in  any  maimer  considered  any  part  of  such  actually 
paid  in  capital.  If  no  newspaper  of  general  circulation  be  puljlisiied  in  the  aforementioned 
county,  tiitn  and  in  tiiat  case  such  publication  of  said  statement  sliall  be  made  in  at  least  one 
newspaper  of  general  circulation  published  in  the  city  and  county  of  San  Francisco,  and  in  one 
newspaper  of  general  circulation  published  in  the  c'fcy  and  county  of  Sacramento. 

Ansets  and  licbUities  to  be  described. 

ofc-u.  2.  Eveiy  corporation  and  all  persons  and  every  person  hereafter  doing  a  banking  bim^ 
ness  in  this  state  sliall  lAcewise  publish  in  such  newspaper  or  newspapers,  and  shall  also  tile  for 
record  in  the  recorder's  office  of  said  county,  in  January  and  July  of  each  year,  a  like  sworn 
Btiitement  of  the  actual  condition  and  value  of  its  assets  and  liabilities,  and  where  said  assets 
are  situated. 

Liability  for  making  false  statement. 

Skc.  li.  The  directors  of  every  such  corporation  which  shall  publish  or  file  for  record,  aa 
aforesaid,  a  false  statement  of  the  amount  of  capital  actually  and  Ixma  tide  paid  into  such  cor- 
poration, or  a  false  stati.'ment  of  the  actual  condition  and  value  of  its  assets  and  lialiilitics,  or  aa 
to  where  said  assets  are  situated,  shall  be  jointly  and  .severally  liable  to  any  person  thereafter 
dealing  with  such  corjjoration  to  the  full  extent  of  such  dealing;  and  no  corporation,  and  no  pei-- 
80u  or  persons  who  fail  to  comply  with  the  provisions  or  any  of  the  provisions  of  this  law,  shall 
maintain  or  jirosecute  any  action  or  proceeding  in  any  of  the  courts  of  this  si.ate  until  they  sliall 
have  lirst  duly  filed  the  statements  herein  provide<l  for,  and  in  all  other  respects  complied  with 
the  provisions  of  this  law;  nor  shall  any  assignee  or  assignees  of  any  such  corporation  or  person 
whose  assignment  shall  be  made  subsequent  to  any  such  failure  to  comply  with  the  provisions  of 
this  law,  maintain  any  action  or  proceeding  in  any  court  of  this  state  until  liis  or  their  assignor 
or  assignors  shall  have  lirst  duly  complied  with  the  provisions  of  this  law. 

Foreign  I>anking  rorporations. 

Siic.  4.  Where  any  of  such  banking  corporations  shall  be  foreign,  the  statements  hereinbe- 
fore provided  for  shall  be  verified  by  the  agent  or  manager  of  the  business  of  such  corjiotMtion 
resident  in  this  state,  who  shall  be  subject  to  the  same  liabilities  herein  provided  as  against 
directors  of  any  such  banking  corporation,  and  also  as  against  every  such  bank  officer. 

Recorder  to  keep  records. 

Skc.  5,  The  recorder  of  each  county  of  this  state  shall  keep  two  sets  of  wcU-bonnd  books  for 
the  record  of  the  sworn  statements  herein  provided  for,  resp'ctively,  one  of  which  sets  of  hook* 
shall  be  iabtlcd  "statements  of  banking  capital,"  and  the  other,  "statements  of  1j inking 
assets,"  and  said  recorder  shall,  upon  the  payment  of  his  fees  for  the  same,  reconl  separately 
said  respective  swoin  statements  in  its  appro])riate  l>ot)k,  and  shall  keep  a  separate  index  <jf  each 
of  said  Bt^ts  of  books.  Said  original  sworn  statLinents  n<etl  not  he  acknowLdg  'd  in  order  to  bo 
recorded  as  aforesaid,  but  must  be  verined  as  aforesaid  licfcre  some  judge  or  officer  of  this  state 
authorized  to  take  affidavits  to  be  used  before  any  court  in  this  state,  aud  shall  alway.s  remaia 
and  be  kei)t  on  file  in  the  office  of  said  recorder. 

Civ.  CoDii— 6  81 


tf  322  CORPORATIONS.  [Biv.  I.  Part  IV, 

Fees  of  recorder. 

Sec.  6.  The  recorrlcr  of  every  county  in  tins  state  shall  receive,  for  recording  any  of  the 
Bwoni  statements  herein  provided  for,  for  every  folio,  twenty-five  cents;  and  for  noting  on  any 
such  sworn  statement  the  time  when  and  the  [dace  where  recorded,  twenty-five  cents;  and  for 
certified  copies  of  sucli  sworn  statements,  to  wliichany  one  paying  for  the  same  shall  be  entitled, 
.twenty-five  cents  per  folio. 

Sec.  7.     This  act  shall  take  effect  from  and  after  its  passage. 

All  Act  to  protect  stockholders  and  permits  dealinrj  with  corporations  in  tida  State, 
[Approved  March  29,  1878;  1877-8,  C95.J 
J  Frauds  and  misrepresentations,  p^ymlty  for. 

Sectiox  1.     Any  superintendent,  (lirector,  secretary,  manager,  agent,  or  other  officer,  of  any 

•  corporation  formed  or  existing  under  tlie  laws  of  this  state,  or  transacting  business  in  the  sam- 

.  and  any  person  pretending  or  holding  himself  out  as  such  superintendent,  director,  secretary, 
.  managi;r,  agent,  or  other  officer,  wlio  siiall  willfully  subscribe,  sign,  indorse,  verify,  or  other- 
wise assent  to  the  publication,  eitiier  generally  or  privately,  to  the  stockholders  or  other  per- 

■  Bons  dealing  with  such  corporation,  or  its  stock,  any  untrue  or  willfully  and  fraudulently  exag- 
gerated report,  prospectus,  account,  statement  of  operations,  values,  business,  profits,  expendi- 

I  tures,  or  prospects,  or  other  paper  or  document  intended  to  produce  or  give,  or  having  a  tendency 
to  proiluce  or  give,  to  the  shares  of  stock  in  such  corporation  a  greater  value,  or  less  apparent 

■  or  market  value,  than  they  really  possess,  or  with  the  intention  of  defrauding  any  particular 

•  person  or  persons,  or  the  pul)lic,  or  persons  generally,  shall  be  deemed  guilty  of  a  felony,  and 
.  on  conviction  thereof  shall  be  punished  by  imprisonment  in  the  state  prison  or  a  county  jail  not 

■  exceeding  two  years,  or  by  tine  not  exceeding  iive  thousand  dollars,  or  by  both;  provided,  that 
this  act  shall  be  construed  to  apply  only  to  corporations  whose  capital  stock  has  been  or  shall 

'  hereafter  be  lis*'."d  at  a  stock  board  or  stock  exchange  in^this  state,  or  whose  shares  be  regularly 
'■  bought  and  sold  in  the  stock  market  of  this  state. 


CHAPTER  II. 
CORPORATE  STOCK. 

■AKncLE  I.     Stock  and  Stockholders 322 

II,    Assessment  of  Stock 331 

AETICLE  I. 

STOCK   AXD    stockholders. 

'322.    stockholders  liable  for  debts. 

Sec.  322.  Each  stockholder  of  a  corporation  is  individually  and  personally 
liable  for  such  proportion  of  its  debts  and  liabilities  as  the  amount  of  stock  or 
shares  owned  by  him  bears  to  the  whole  of  the  subscribed  capital  stock  or  shares 

•of  the  corporation,  and  for  a  like  proportion  only  of  each  debt  or  claim  against  the 
coTi^oration.     Any  creditor  of  the  corporation  may  institute  joint  or  several 

-actions  against  any  of  its  stockholders  for  the  proportion  of  his  claim,  payable 
l3y  each,  and  in  such  action  the  court  must  ascertain  the  proportion  of  the  claim 
or  debt  for  which  each  defendant  is  liable,  and  a  several  judgment  must  be  ren- 
dered against  each,  in  conformity  therewith.  If  any  stockholder  pays  his  pro- 
portion of  any  debt  due  from  the  corporation,  incurred  while  he  -was  such  stock- 
holder, he  is  relieved  from  any  further  personal  liability  for  such  debt;  and  if 
an  action  has  been  brought  against  him  upon  such  debt,  it  shall  be  dismissed  as 
to  him,  upon  his  paying  the  costs,  or  such  proportion  thereof  as  may  be  prop- 
erly chargeable  against  him.  The  liability  of  each  stockholder  is  determined 
by  the  amount  of  stock  or  shai'es  owned  by  him  at  the  time  the  debt  or  liability 
"was  incurred;  and  such  liability  is  not  released  by  any  subsequent  transfer  of 
stock.  The  term  "  stockholder,"  as  used  in  this  section,  shall  apply  not  only  to 
8uch  persons  as  appear  by  the  books  of  the  corporation  t6  be  such,  but  also  to 
every  equitable  owner  of  stock,  although  the  same  appear  on  the  books  in  the 
name  of  another,  and  also  to  every  person  who  has  advanced  the  installments 
or  purchase  money  of  stock  in  the  name  of  a  minor,  so  long  as  the  latter  remains 
a  minor;  and  also  to  every  guardian  or  other  trustee  who  voluntarily  invests  any 

82 


Title  I,  Chap.  II.] 


CORPORATION  STOCK. 


§322 


trust  funds  in  the  stock.  Trust  funds  in  the  hands  of  a  guardian  or  trustee 
shall  not  be  liable  under  the  provisions  of  this  section  by  reason  of  any  such 
investment,  nor  shall  the  person  for  whose  benefit  the  investment  is  made  be 
responsible  in  respect  to  the  stock,  until  he  becomes  competent  and  able  to  con- 
trol the  same;  but  the  responsibility  of  the  guardian  or  trustee  making  the 
investment  shall  continue  until  that  period.  Stock  held  as  collateral  security, 
or  by  a  trustee,  or  in  any  other  representative  capacity,  does  not  make  the 
holder  thereof  a  stockholder  within  the  meaning  of  this  section,  except  in  the 
cases  above  mentioned,  so  as  to  charge  him  with  any  proportion  of  the  debts  or 
liabilities  of  the  corporation;  but  the  pledgor,  or  person  or  estate  represented, 
is  to  be  deemed  the  stockholder  as  respects  such  liability.  In  corporations 
having  no  capital  stock,  each  member  is  individually  and  personally  liable  for 
his  proportion  of  its  debts  and  liabilities,  and  similar  actions  may  be  brought 
against  him,  either  alone  or  jointly  with  other  members,  to  enforce  such  liabil- 
ity as  by  this  section  may  be  brought  against  one  or  more  stockholders,  and 
sijuilar  judgments  may  be  rendei'ed.  The  liability  of  each  stockholder  of  a  cor- 
poration formed  under  the  laws  of  any  other  state  or  territory  of  the  United 
States,  or  of  any  foreign  country,  and  doing  business  within  this  state,  shall  be 
the  same  as  the  liability  of  a  stockholder  of  a  corporation  created  under  the 
constitution  and  laws  of  this  state.  [Amendment,  approved  March  15,  187G; 
Amendments  1875-G,  73;  took  effect  sixtieth  day  after  ])assage.] 
Liability  of  stockholders  for  debts  of  the     the  code,  it  is  not  necessary  that  the  shares 


corpoi-atiou  is  declared  iu  Const.  Cal.  1S79, 
art.  Il2,  sec.  3.  In  the  consideration  of  statutes 
fixing  U[)on  stockholders  a  personal  liability  for 
the  debt  J  of  the  corporation,  there  isadilTercnce 
of  opinion  in  regard  to  what  rule  of  construc- 
tion ought  to  be  adopted.  Mr.  Justice  Story 
in  Varmr  v.  Bramtree  Mfrf.  Co.,  2  Story,  4.32, 
favors  tiie  view  that  such  statutes  are  remedial, 
and  ought,  therefore,  to  be  liberally  construed. 
So  also  Freeland  v.  jMcCnlloui/tt,  I  Denio,  414. 
Other  ca.sc3  have  insisted  that  such  statutes, 
being  in  derogation  of  the  common  law,  ought 
to  be  sLrictly  construed:  (Jrai/  v.  Coffin,  9 
Cush.  192;  Lowiy  v.  liiman,  4G  N.  Y.  119; 
Chase  v.  Lord,  77  Id.  1 ;  Suft  Lake  C'Uy  Natioiicd 
Bank  v.  //endrirk-son,  40  N.  J.  L.  52;  Moyr  v. 
Penn-iy  mnia  .Slain  Co.,  71  I'a.  St.  29.3;  Mean's 
Api>e  il,  85  Id.  75,  78.  In  California  it  is  said 
that  neither  a  strict  nor  a  liberal  construction 
id  to  be  adopted  where  it  will  operate  to  defeat 
the  obvious  intent  of  the  statute,  but  tliat  it 
ehould  be  reasonably  constructed:  Mokeliunne 
Jl'dl  etc.  Co.  V.  Woidliury,  14  Cal.  2G5;  David- 
son  V.  llankin,  84  Id.  5J5.  This  is  the  view 
preferred  by  Thompson's  Liability  of  Stock- 
l)oLlei-s,  sec.  .53. 

Who  is  a  stockholder. — The  above  section 
very  carefully  describes  who  are  to  Ije  considered 
Btockholders  upon  whom  the  liability  for  the 
debts  of  the  corporation  siiall  fall.  Mr.  Thomp- 
Bon,  Liability  of  Stockholders,  pt.  2,  enters 
into  an  exhaustive  consideration  of  tiie  (pies- 
tion,  and  concludes  generally  that  to  render 
cue  liahle  as  a  stockiioldcr  in  a  corporatiim  for 
a  corporate  debt,  by  virtue  of  a  statute  impos- 
ing a  personal  liability  upon  stockholders,  lie 
must  either  have  entered  into  tiiat  relation  by 
actual  contract,  section  10>,  or  must,  l)y  hold- 
ing himself  out  as  a  stockholder  and  assuming 
to  act  as  such,  have  estopped  himself  from 
denying  that  ho  is  a  stockholder  as  against  the 
corporation's  creditors,  section  1G9.  To  con- 
Btituto  one  a  stockholder  within  the  intent  of 


should  have  been  paid  for  or  the  certilicate 
received.  A  corporation  may  give  credit  for 
its  stock,  and  tlie  certificate  is  but  proof  of 
property  which  may  be  established  witiiout  it: 
JMUchcil  v.  Bc'-knian,  04  Cal.  117;  Chiffia  v. 
Cuniminijs,  37  Me.  70;  Chi'ster  Glass  Co.  v. 
Dewen,  8  Am.  Dec.  12S;  Si/ear  v.  Crawford, 
28  Id.  513;  Jn  re  South  ^fountain  Consolidaled 
Milling  Co.,  7  Saw.  30;  JIawes  v.  Anjh-S ixon 
etc.  Co.,  101  Mass.  385;  S.  C,  111  Id.  200; 
Burr  V.  WUcox,  22  N.  Y.  551.  Where  the 
corporation  h.as  been  fully  formed,  but  the 
stock  not  divitled  nor  the  certilicates  issued, 
the  members  are  tenants  in  common  of  the 
stock  and  are  liable:  Ilmves  v.  Amjlo  Saxon  etc. 
Co.,  supra.  The  fact  that  one  haa  subscribed 
for  stock  in  the  uaiue  of  an  agent  does  not 
exempt  him  from  liability:  Burr  v.  i^'ikoz, 
supra;  nor  that  the  subscription  is  made  iu  a 
mmor's  name:  Castleman  v.  Holmes,  4  J.  J. 
Maisii.  1;  Roman  v.  Fry,  5  Id.  G34.  Subscrilj- 
ing  for  shares  after  ail  have  been  taken  does  not 
make  o:ie  liable  as  a  stockiioldcr:  Lathrop  v. 
KnoAand,  4'J  Barb.  432.  Merely  signing  an 
agreement  to  take  stock  in  an  unincorporated 
co;nj)any  does  not  constitute  one  a  stockholder 
after  incorporation:  Mont<'rey  R.  R.  Co.  v.  /HI- 
dri-Ui,  53  Cal.  123.  One  who  never  accepts, 
but  refuses  to  accept,  any  stock  in  a  corporation 
is  not  a  stockholder,  even  though  the  secretary 
enters  his  name  on  tlie  books  as  sucli:  Mud jett 
V.  Ilorretl,  33  Id.  25.  One  who  holds  shares 
as  collateral  security,  the  ccrtiflciites  standing 
in  his  name,  and  there  being  nothing  to  siiow 
that  is  not  the  ab.solute  owner,  must  answer  as 
such,  especially  if  he  acts  in  that  character: 
Jlo'yoke.  Bunk  v.  Bnrnhani,  11  Cusli.  183;  Barre 
NrUional  Bmk  v.  /linijham  .Mj]].  Co.,  127  Mass, 
5!J3;  Gri.twoll  v.  Silljman,  72 Mo.  1 10.  Other- 
wise where  the  real  relation  of  tlie  holder  to  tlio 
stock  isapparentfrom  the  transfer-book:  Fisher 
v.  Seligman,  7  Mo.  A  pp.  333. 
A  scries  of  iuterestiag  decisions  by  the  high- 


83 


§322 


COEPOPATIONS. 


[Div.  T,  Tart  IV, 


est  court  of  Mlssonri  and  of  tho  Unite^l  States 
court,  terminating  ill  op-iosingaljudicatiKm  hy 
the  supreme  court  of  tlie  United  States  an  1  the 
ctate  supreme  court,  liave  hcen  rcnilefcd  re- 
cently upon  the  liability  as  a  stiickholdcr  of  a 
pledgee  of  stock  who  voted  the  sar.ic  at  corpo- 
rate meetings.  The  ([ucstion  turned  upon  the 
construction  of  a  statnta  of  Missouri  declaring 
that  pledgees  of  stock  were  not  liable  to  cred- 
itors. In  this  instance  tho  pledgees  held  their 
Btock  from  the  corporation  itself,  not  from 
Btockliolders.  Tliis  fact  was  deemed  by  the 
state  court  to  take  the  case  out  of  the  statute, 
and  to  reader  liable  these  pledgees  who  had 
conducted  themselves  as  sto:k holders.  The 
federal  courts  entertained  dilT'crent  views,  de- 
ciding that  the  defendants  were  within  the  [iro- 
toetion  of  the  statute.  The  decisions  arc: 
Gr'oiwohl  V.  SelUjman,  11  Mo.  110;  Flshir  v. 
Scl'i'jman,  73  Id.  1 ;  and  Burje^x  v.  SfUrjman,  2 
Sup".  Ct.  Rep.  10;  S.  C,  '2  lianking  Law  J.  84. 
Measure  and  uaturo  of  liability. — The  li- 
ability of  the  stockholder  for  the  corporate 
debts  is  primary  and  original,  and  not  that  of 
a  guarantor  or  surety:  Mokdumne  Hill  etc. 
Cn.  V.  Woodhury,  14  Cal.  2G5;  Davvlsoii  v. 
Jianhhi,  3t  Id.  503;  Younrj  v.  Roseuhaum,  39 
Id.  C40;  Sonoma  Valley  liank  v.  Hill,  59  Id. 
107;  Fa'jmonville  v.  McGidlowjh,  Id.  2S5; 
ilitchell  V.  Beckinan,  64  Id.  117;  Mrrroio  v. 
Superior  Court,  I.l.  383;  Fuller  v.  Ledden,  87 
111.  310;  Todhunter  v.  Randolph,  29  Ind.  275; 
Perkhvi  v.  Sandern,  58  Miss.  733;  Flaah  v. 
Conn.  IG  Fla.  4JS;  Stewart  v.  Lay,  45  Iowa, 
601.  Any  legislation  which  should  attem;)t  to 
limit  this  liability,  or  to  postpone  it,  or  make 
ifc  secondary  to  that  of  the  corporation,  would 
be  violating  article  13,  section  3,  Const.  Cal. 
1879,  and  would  be  void:  Morrow  v.  Superior 
Court,  64  Cal.  383;  see  also  French  v.  Tesche- 
macher,  24  Id.  518;  Larrabee  v.  Baldwin,  35 
Id.  155.  It  is  not  dependent  or  contingent 
upon  a  recovery  against  the  corporation: 
Dividnon  v.  Rankin,  31  Id.  503;  Vo'inj  v. 
Rosenbaum,  39  Id.  643.  Nor  is  it  affected  by  a 
suspension  of  the  renidly  ag  dnst  tho  corpora- 
tion: Young  V.  Roitenbaum,  auirra.  It  is  no  de- 
fense to  an  action  brought  against  a  stock- 
holder to  recover  his  ratable  proportion  of  a 
debt  of  the  corporation  that  property  of  the 
corporation  which  has  beeai)ledged  to  plaintiff 
remains  undisposed  of:  Sonoma  Valley  Jlank  v. 
Hdl,  59  Id.  107.  But  a  discharge  of  a  part 
of  the  debt  of  the  corp.)rati(m  is  pro  tan'o  a 
discliarge  of  the  liability  of  the  stockliolder: 
•S'.  J.  Samn^jn  Bink  v.  Pharis,  53  Id.  339.  As 
between  themselves,  tho  corporation  is  tho 
principil  djbtor,  and  the  stockholders  t!ie 
smeties  or  guarantors:  Prince  v.  Lynch,  33  Id. 
623. 

The  above  section  permits  an  action,  joint 
or  several,  to  be  brought  against  tho  stock- 
holders. Under  Const.  Cal.  1379.  art.  13,  sec. 
3,  stockholders  in  a  corporation  organized  un- 
der A  statute  prior  to  the  code,  an  1  int  re- 
organized under  its  provisions,  will  be  liable 
i:i  an  actio  I  at  law  for  thoir  proportion  of  t!i3 
corporate  debts:  Morrow  v.  Superior  Conri,  61 
Cal.  833.  It  is  noticeablo  tliat  this  pr  )vision 
of  t!ie  new  constitution  is  not  framed  iu  the 
language  of  section  322  with  respect  to  the  pro- 
jjortionate  liability  of  stockholders.  The  sec- 
tion makes  the  stock'.iolder  liable  only  for  his 
proportion  of  each  debt;  the  new  constitution 
says  that  he  u  liable  for  auch  proportion  of 


all  the  debts.  All,  here,  may,  and  perhaps 
does,  mean  each;  otherwise  tho  word  "all" 
is  superfluous.  Under  the  act  of  1853  it 
was  belli  that  any  one  creditor  whose  <l'jbt  is 
snliicient  mi;^ht  collect  the  entire  amourit  of 
a  stockholder's  liability  on  ad  t!ie  corporate 
debts,  and  that  the  payment  to  any  one  cred- 
itor a  sum  equal  to  the  stockholder's  pro- 
portion of  the  entire  corporate  indebtedness 
would  release  him  for  lial)ilicy  to  other  corpo- 
rate creditors:  Larrabee  v.  Baldwin,  35  Id. 
I5.J.  Tiie  language  of  the  above  provisions  of 
the  code  and  constitution  inilicate  a  dilferent 
intention. 

The  action  against  the  stockholder  authorized 
by  section  322  dues  not  exclude  the  eijuitablo 
remedy  to  enforce  the  payment  of  unoaid  as- 
sessmouts  on  the  stock:  Harmon  v.  Paj:',  62 
Cal.  448;  but  ot'nerwise  in  tlie  case  of  mining 
corporations:  In  re  South  Mt.  M.  Co.,  7  Saw. 
30;  S.  C,  8  Id.  .366. 

Tlie  liability  is  determined  by  the  holding  of 
stock  at  the  tine  the  indebtedness  was  incurred: 
Larrabi'c  v.  Baldwin,  35  Cal.  155;  FifCKon  v. 
Savage  Mining  Co.,  3  Nov.  157;  Jndson  v.  Rossie, 
Ga'ena  Co..  33  Am.  Dec.  569;  i/o.s.'j  v.  Oaklet/, 
2  Hill  (N.  Y.),  205;  WilUam^v.  llannn,  40  Ind. 
544;  Renter  v.  Maranda,  60  Id.  485;  Chculeyv. 
Pierce,  32  N.  H.  388.  These  cases  were  all 
decided  upon  a  construction  of  the  statutes 
or  charters  under  which  the  corporations  ex- 
isted. 

Release  from  liability. — A  release  of  tho 
corporation  by  the  creditor  releases  the  stocl- 
holders:  Prince  v.  Lynch,  38  Cal.  538,  ptr 
Crockett,  J.  Ami  the  same  case  holds  that 
where  a  creditor  of  a  corporation,  by  an  instru- 
ment under  seal,  releases  a  stockhohler  from  all 
personal  liability  for  his  debt,  he  thereby  dis- 
charges the  corporation  and  other  stockiioiders 
to  tho  same  extent  as  the  one  to  wliom  the  re- 
lease is  executed.  The  release  of  a  stockholder 
by  the  corporation  is  of  no  avail  as  against  a 
creditor:  Thompson's  Liability  of  Stockholders, 
sees.  291  etseq.  A  part  satisfaction  of  the  debt 
due  thecor[)oration  is  pro  <a/(<o  adischarge  of  tiia 
stockholder:  S  ni  Jose  Savlui/s  Bank  v.  Pharis, 
58  Cal.  3S0;  whatever  satisfies  or  distinguishes 
the  debt  as  to  t!ic  corporation,  extinguishes  also 
the  bability  of  the  stockholder:  Young  v.  Rosen' 
hi'im,  39  Id.  654;  San  Joai  Savings  Bank  v. 
Pharis,  .supra.  But  it  is  n  »  defense  tor  a  stock- 
holder that  the  plaintiff  holds  undisposed  of 
property  pledged  to  him  by  the  corporation  to 
secure  the  debt:  Sonoma  Valley  Bank  v.  /Jill,  3 
Pac.  C.  L.  J.  666. 

Ii33a oia^  liability  by  transferring  stook- 
Tii3  foUowaig  rule  in  regard  to  the  divestiture 
of  liability  by  a  transfer  of  one's  shares  is  given 
by  Thompson's  Liability  of  Stockholders,  sec. 
217:  "A  transfer  of  shires,  not  perfected  as 
required  by  the  charter,  statutes,  articles  of 
association,  or  deed  of  settlement  governing 
the  corporation  or  company,  though  valid  be- 
tween t!ie  parties,  does  nob  in  general  divest  the 
transferrer  of  his  liability  as  a  stockholder  to 
creditors."  And  that  author,  in  discussing  the 
proposition,  cites  many  English  and  American 
cases  illustrating  the  various  circumstances 
under  whicli  tlie  question  might  arise. 

Mi.iinj  oarporatiDas.— This  section  does 
nob  give  authority  for  personal  action  against 
stockholders  in  mining  corporations  for  unpaid 
as3333:mat3  of  stock:  /;t  re  South  Mt.  M.  Go., 
7  Saw.  39;  S.  C,  8  Id.  3(i6. 


84 


TiTT.E  I,  ClIAP.  II.] 


CORPORATION  STOCK. 


§3  323,  324 


323.  Cerdficales,  how  mid  when  issued. 

Sec.  323.  All  corporations  for  profit  must  issue  certificates  for  stock  wlieu 
fully  paid  up,  signed  by  the  president  and  secretary,  and  may  provide,  in  their 
by-laws,  for  issuing  certificates  prior  to  the  full  payment,  under  such  restric- 
tions and  for  such  purposes  as  their  by-laws  may  provide. 

324.  Transfer  of  shares. 

Sec.  324.  Whenever  the  capital  stock  of  any  corporation  is  divided  into 
shares,  and  certificates  therefor  are  issued,  such  shares  of  stock  are  personal 
property,  and  may  be  transferred  by  indorsement  by  the  signature  of  the  pro- 
prietor, or  his  attorney  or  legal  representative,  and  delivery  of  the  certificate; 
but  such  transfer  is  not  valid,  except  between  the  parties  thereto,  until  the 
same  is  so  entered  upon  the  books  of  the  corporation  as  to  show  the  names  of 
the  parties  by  and  to  whom  transferred,  the  number  or  designation  of  the 
chares,  and  the  date  of  the  transfei*. 

event,  an'l  that  if  the  pledgee  failed  to  transfer 
the  stock  on  the  company's  l)i)ok3.  or  notify  tlie 
purchaser  at  the  execution  of  tlie  pled^^ee's  lien, 
such  purchaser  would  take  the  stock  freed  from 
the  lien.  The  plcd^'ee  i.^  in  no  event  entitled 
to  an  injunction  to  jireveut  the  execution  sale: 
Farmer's  Xut.  Baltic  v.  Wilson,  iJS  Cal.  COO. 
For  a  collection  df  the  authorities  upon  thia 
question,  consult  Morawetz  on  Corp.,  sees.  323- 
o30;  and  for  a  discussion  of  the  princijiles  in- 
volved, see  2  l'i)mcroy's  Eq.  Jur.,  sees.  708, 
710.  The  word  "  trustee  "  after  the  name  of  a 
transferrer  is  not  notice  of  secret  cquiti  -s: 
Broirster  v.  .9(27(6',  42  Cal.  139;  Thompson  v.  To- 
Uivd  48  Id.  99. 

Compelling  transfer. — Mandamm^  will  not 
lie  to  compel  the  corporation  to  enter  a  transfer 
upon  the  company's  books.  The  shareholder's 
remedy  is  iu  dauiaj^es  for  the  refusal:  Durliam 
V.  M.  S.  J/.  Co  ,  9  Or.  4 1 ;  Kbnhail  v.  Union 
Wafer  Co.,  44  Cal.  173;  hut  see  People  v.  Crock- 
€lt,  9  Id.  112;  Sherwood  v.  Meadow  M.  Co.,  .JO 
Id.  412,  w-here  the  appeal  was  from  an  order 
refusin;^  to  issue  the  writ.  It  seems  to  have 
been  admitted  there  that  the  mandamus  was 
the  proper  remedy  had  the  petitioner  Ijcen  en- 
titled to  it.  And  in  Brown  v.  'S'.  1>\  Ga.sixjlU 
Co.,  G3  Id.  42(5,  judgment  was  entered,  on  an 
agreed  statement  of  facts,  directing  tiie  com- 
pany to  transfer  the  stock.  The  following 
cases  maintain  that  maiuLimiii  is  not  tlie  rem- 
edy: Baker  v.  Marshall,  15  Minn.  177;  S'ate.  v. 
I\oinhaner,i'i'islo.  loj;  Wilkuisoii  v.  Provi.clenre 
Bank,  3  R.  I.  22;  ElUut  v.  Gnerr^-ro,  12  Nev.  105; 


Traxisfar  cf  Eharcs  of  stock,  until  entered 
upon  the  books,  is  not  valid  except  as  betv,-een 
tiansfcrrer  and  transferee:  Weston  v.  Bear  R. 
<f'  Aul.vrn  W.  d:  M.  Co.,  5  Cal.  18(5;  State  v. 
Lcetc,  8  I'ac.  C  L.  J.  577  (Nev.).  But  it  seems 
iroui  Ue.-ton  v.  Bear  R.  d-  A.  IT.  <t  J/.  Co., 
G  Cal.  425;  Xa'jk'e  v.  Pacijlc  Wharf  Co.,  23 
Id.  5.')3;  I'eople  v.  Elmore,  ,35  Id.  053;  Par- 
rott  v.  Bi/ers,  40  Id.  G14;  Winter  v.  Belmont 
M-'niui/  Co.,  53  Id.  428,  lliat  a  transfer  not  so 
entered  isalsogooil  as  to  persons  having  notice 
of  it.  All  these  decisions,  and  Brown  v.  S.  F. 
Gi's-Hi/hl  (Jo.,  58  Id.  420,  hold  that  as  between 
the  parties  the  certilicate  passes  by  indorse- 
ment and  tlelivery.  While  it  has  been  ex- 
pressly declared  by  the  fuprcme  court  of  Cali- 
fornia tl;at  ecrtificj,tes  of  stock  are  not  negoti- 
able securities  in  a  commercial  S.'nsc,  A/kinx  v. 
Gamble,  42  Id.  99;  and  later  Barstow  v.  Sav- 
U'le  M.  Co.,  04  Id.  388;  Shfrwood  v.  Meadonj 
Valcu  M.  Co.,  50  Id.  412,  it  has  been  held 
more  recently  that  tlie  honajide  purchaser  of  a 
certiheato  from  tlie  apparent  owner  takes  the 
Bame  frccii  from  the  defect  in  the  transferrer's 
title:  Winter  v.  Belmont  M.  Co.,  53  Id.  428. 
That  was  a  case  where  one  in  wliosa  name  the 
shares  stood  on  the  books  of  the  cor^  oiaiion  in- 
dorsed the  certificate  in  blank,  and  delivered  it 
to  a  vendee;  this  certilicate  was  stolen  from  the 
vendee  by  him  in  whose  name  the  stock  was 
Blill  standing,  and  sold  to  a  honn  Jide  purchaser. 
Tlie  court  pronounced  the  latter's  title  good, 
notwithstanding  the  Sherwood  v.  Meadow  Wd- 
leij   M.   Co.  case,   where  an   opposite   couclu- 


Bion  was  reached  upon  substantially  tlie  same  Stackpole  v.  Scpmuur,  127  Mass.  104;  ^Inrr.^y 

Etate  of  facts.     The  whole  matter  came  Ijefore  v.  Stevens,  110  Id.  95;  while  the  following  iixi- 

tlie  supreme  court  again  in  Barstow  v.  Sav-  tliorize  tlie  issuance  of  the  writ:  Green  Mt.  T. 

a<je  M.   Co.,  04  Cal.  oSS,  and  after  reviewing  Co.  v.  Bulla,  45  Ind.  1;  Cam/.bell  v.  Monjin,^ 

the  eailier  cases,  disapproving  Winter  v.   BA-  Bradw.   105;    Town<end  v.  Mclror,  2  S.  C  2.). 

viont  M.  Co.,  supra,  t\\cy  say:   "In  conclusion,  As  a  general  rule,  where  a  corporation  refuses 

then,  we  are  of  oi)inion  and  decide  that  where  to  allow  a  transfer  of  shares  upon  its  books,  the 

Btock  of  an  incorporation  stands  on  the  books  transferee  may  treat  tliis  as  a  conversion  of  his 


in  tlie  name  of  A.,  and  the  stock  is  owned  iiy 
B.,  anil  the  certificate,  thougli  properly  in- 
dorsoil,  is  stolen  from  B.  without  his  fault,  the 
tliief  can  pass  no  title,  and  B.  ni.ay  pursue  his 
juoj  erty."  Where  the  owner  of  shares  of  stock 
Bt.mding  iu  his  n.ime  on  tlie  bo  iks  of  the 
company  pledges  the  same  to  secure  an  indebt- 
edness, giving  the  creditor  a  power  of  attorney 
to  have  tiic  stock  transferred  to  Ins  name,  tlio 
interest  of  the  debtor  in  suc'i  stock  is  iiaVde  to 
Bale  under  execution  by  a  third  person  iu  any 


siiarL'S  by  the  company:  Baltimore  j;\i/  <  '<>.  v. 
Sewell,  35  Md.  233;  Scripture  v.  Francestown  S. 
Ci.,  53  X.  II.  571;  Bank  of  America  v.  Mc- 
Nei',  10  Bush.  54;  West  Branch  etc.  Co.'s  Ayjieal, 
81  P.i.  St.  19;  Gennan  Btuldin<i  A-^s'n  v.  Send- 
m.-'ije.r,  50  Id.  (>7;  Protection  Life  ln-<.  Co.  v.  Os- 
rjo-jd,  93  111.  GO.  Coaiplaint  in  such  an  liction 
should  allege  damige,  indorsement,  and  deliv- 
e -y  of  tlio  certi.icate  to  plaintiff,  or  that  it 
w.n  pjescnted  to  him,  and  a  demand  for  a 
new   certilicate:    Edwards   v.    Sonoma    Valley 


85 


§§  325,  32G  CORPORATIONS.  [Div.  I,  Part  IV, 

Bank,  50  Cal.  IT.G.  When  corporation  should  upon  the  books;  and  DriscoU  v.  Went  Dra'lley 
execute  a  transfer  of  stock:  lioone  on  Corp.,  Mj]i.  Co.,  59  N.  Y.  102,  asrjertiuji;  tlie  contrary, 
sec.  1J2.     Foreign  execiitor'i5  indorsement  and     cspcci.iUy  where  the  rights  of  a /j'<?(a /t/e  pur- 


delivery  of  certiiicate  cntithis  transferee  to  have  chaser  without  notice  of  the  by  daw  are  con- 
transfer  made  on  the  com;'any's  boohs:  Brown  earned.  Morawetz  on  Corp.,  sees.  S32-.S36,  haa 
V.  .v.  /•'.  Ca^-Uiiht  Co.,  58  Cal.  4'26.  It  is  not  a  a  complete  collection  of  the  authorities  on  thu 
sulDcient  excn.so  for  refusing  to  transfer  tlie  question.  So  also  Boone  on  Corp. ,  sec.  124. 
stock  that  the  assignor  was  indebted  to  the  In  an  action  to  determine  the  ownership  of 
company,  unless  the  company  Iiad  a  lien  upon  shares  of  stock,  the  corporation  and  purchaser 
tlie  stock  at  the  time  of  the  transfer:  P"0])le  v.  with  notice  are  proper  parties  defendant:  John.' 
Crocldt,  9  Id.  112;  Drl-n-oU  v.  West  Bradley  so)i  v.  Kirby,  3  West  Coast  Hep.  482;  and  see 
3IJ]/.   Co.,  r;9  N.  Y.   102;    Williamn  v.   Lowe,  4  infra. 

N(.b.  308;  Steamship  Co.  v.  Heron,  52  Pa.  St.  Enjoining  transfer. —Transfer  by  pledgee 
280;  Farmer.'^  Bank  v.  \\'a.^><on,  48  Iowa,  340;  of  stock,  where  the  dividends  thereon  liave 
Van.>taml  v.  Middlesex  Co.  Bank,  2GGom\.  144;  equaled  the  indebtedness,  will  be  enjoined: 
Byon  V.  Carbr,  22  La.  Ann.  98.  But  a  corpo-  Smith  v.  '40  and  '5G  Quartz  Mlniw]  Co.,  14  Cal. 
ration  m-.\y  have  a  lien  upon  the  shares  of  a  212.  So  also  where  a  transfer  is  made  to  fraud- 
stockholder  for  his  debt  if  the  b3'-laws  ex-  ulently  control  an  election,  the  voting  tlie  stock 
pressly  provide  so.  And  whether  it  is  compe-  will  be  enjoined:  Webb  v.  Ridfjely,  38  Md. 
tent  for  the  slockliolders  to  adopt  such  a  by-  304. 

law  depends,  it  seems,  upon  the  charter.     For        A  by-law  imposing  a  lien  on  stock,  seek- 

valualjle  discussions  of  this  subject,  see  Pender-  ing  to  charge  the  same  thercwi:!)  in  tlic  Isr.nds 

ga^t  V.  Bank  n/S'ock'on,  2  Saw.  108,  upholding  of  bona  fide  purchaser?,  is  in  confl  et  w  th  this 

the  corporation's  powpr  to  pass  a  by  law  mak-  section,  and  not  enforceable:   Amjl  -C  7.  Bank 

ing  the  payment  of  the  stockholder's   debt  a  v.  G/'«»,7fr.s' fia(/j,  G:lCal.  359;  see.sHjjra,  under 

condition  precedent  to  the  transfer  of  his  stock  "  Compelling  Transfer." 

325.  Shares  lidd  by  married  loomen,  etc. 

Sec.  325.  Shares  of  stock  in  corporations  held  or  owned  by  a  married  womaa 
may  be  transferred  l)y  her,  her  agent  or  attorney,  without  the  signature  of  her 
hu.sbaud,  in  the  same  manner  as  if  such  married  woman  were  a  feme  sole. 
All  dividends  payable  upon  any  shares  of  stock  of  a  corporation  held  by  a  mar- 
ried woman  may  be  paid  to  such  married  woman,  her  agent  or  attorney,  in  the 
same  manner  as  if  she  Avere  unmarrieil,  and  it  is  not  necessary  for  her  husband 
to  join  in  a  receipt  therefor;  and  any  proxy  or  power  given  by  a  married  womaa 
touching  any  shares  of  stock  of  any  corporation  owned  by  her  is  valid  and 
binding  without  the  signature  of  her  husband,  the  same  as  if  she  were  unmar- 
ried. 

326.  Non-resident  stockholders. 

Sec.  326.  When  the  shares  of  stock  in  a  corporation  are  owned  by  parties 
residing  out  of  the  state,  the  president,  secretary,  or  directors  of  the  corpora- 
tion, before  entering  any  transfer  of  the  shares  on  its  books,  or  issuing  a  certifi- 
cate therefor  to  the  transferee,  may  require  from  the  attorney  or  agent  of  the 
non-resident  owner,  or  from  the  person  claiming  under  the  transfer,  an  affidavit 
or  other  evidence  that  the  non-resident  owner  was  alive  at  the  date  of  the  trans- 
fer, and  if  such  affidavit  or  other  satisfactory  evidence  be  not  furnished,  may 
require  from  the  attorney,  agent,  or  claimant  a  bond  of  indemnity,  with  two 
sureties,  satisfactory  to  the  officers  of  the  corporation;  or,  if  not  so  satisfactory, 
then  one  appi'oved  by  a  judge  of  the  superior  court  of  the  county  in  which  the 
principal  office  of  the  corporation  is  situated,  conditioned  to  protect  the  corpo- 
ration against  any  liabilit}'  to  the  legal  representatives  of  the  owner  of  the 
shares  in  case  of  his  or  her  death  before  the  transfer;  and  if  such  affidavit  or 
other  evidence  or  bond  be  not  furnished  when  required  as  herein  provided, 
neither  the  corporation  nor  any  officer  thereof  shall  be  liable  for  refusing  to 
enter  the  transfer  on  the  books  of  the  corporation.  [Amendment,  approved  Feb- 
ruary  IG,  188.');  Statutes  and  Amendments  1883,  4;  took  effect  immediatrty  J 

Stock  owned  hj  forei2;n  resident  may  be  to  a  transfer  of  the  stock  upon  the  corporation's 
Bold  by  Lis  executor  and  t'lo  cerLi.icate  in-  b.iuks:  Brown  v.  Sa7i  Jos6  Gas-li'jfit  Co.,  5S 
dorsed  by  the  execut()r  entitles  the  purchaser     Cai.  42G. 

86 


Tttlr  I,  Chap.  II.]  CORPORATION  STOCK.  §3  327-332 

327.    Contracts  to  relieve  directors  from  liabilities  fixed  by  constitution  void. 

Seo.  327.  Au;y  contract  or  contracts,  verbal  or  written,  hereafter  inadd 
v^hereby  it  is  sought  directly  or  indirectly  to  relieve  any  director  or  trustee  of 
any  corporation  or  joint-stock  association  from  any  liability  imposed  by  section 
three  of  article  twelve  of  the  constitution  of  California,  are  hereby  declared 
to  be  and  shall  be  null  and  void.  [New  section,  approved  April  12, 1880;  Aiuend- 
vienls  1880,  9  (Ban.  ed.  202);  took  effect  immediatehj.] 

An  Act  imposing  a  tax  on  the  issue  of  cerlijicntes  of  stock  corporations. 
[Approved  April  1, 1878;  1877-8,  955.] 
Fee  allowed. 

Skcuon  1.  It  shall  be  lawful  for  the  secretary  of  every  corporation  in  the  state  of  California 
to  dcmaud  and  receive  of  any  person  requiring  the  issue  to  him  of  any  certificate  of  stock  in  such 
corporution,  a  fee  of  ten  cents  in  coin  for  each  certilicate,  \vh<'tlicr  such  certificate  he  the  origi- 
nal issue  or  an  issue  on  transfer,  and  such  certificate  shall  not  be  delivered  by  the  secretary  until 
such  fee  sliall  be  paid. 
Duty  of  secrctari/. 

Sec.  2.  It  shall  be  the  duty  of  the  secretary  of  everj'  such  corporation,  on  the  first  Monday 
in  Januar}',  April,  July,  and  October,  of  eacii  year,  ti>  make  I'cturns,  under  oath,  to  the  tax 
collfctor,  or  otiicer  citing  as  tax  collector,  of  the  number  of  certificates  issued  by  tiie  corporatioa 
of  which  he  is  secretary,  during  the  quarter  preceding,  and  pay  to  sucli  tax  collector  tiie  sum  of 
ten  cents  in  coin  for  eacli  and  every  certificate  so  issued  by  said  corporation,  except  that  in  t!io 
city  and  county  of  Sau  Francisco  sucli  returns  and  payments  sliall  be  made  to  the  license  collector, 
or  otliccr  eni^agcd  in  the  collection  of  licenses  in  said  city  and  county. 
Exam  illation  of  secretary  and  hooks. 

Sec.  3.  Such  tax  collector,  or  license  collector,  is  hereby  authorized  and  empowered  lo 
examine  such  secrctarj',  under  oath,  as  to  the  truth  of  said  returns,  and  to  examine,  if  necessary, 
the  iiooks  of  such  corporation,  so  far  as  tliey  relate  to  the  transfer  of  stock,  or  issue  of  cerUli- 
cates,  and  if  the  returns  are  not  correct,  tlien  lie  is  authorized  to  conimeuce  an  action  against 
sucli  corporation  in  any  courb  of  competent  jurisdiction,  in  the  name  of  the  people  of  tlio  state 
of  California,  for  a  penalty  of  one  hundred  dollars  for  each  certificate  issued  by  such  corporatiou 
and  not  so  returned  under  oath,  and  several  penalties  may  he  joined  in  sucli  action. 
Perjury. 

Skc.  4.     Any  persons  violating  the  provisions  of  section  two  of  this  act  sliall  be  deemed  guilty 
of  a  misdemeanor,  and  false  swearing  to  any  return  provided  iu  section  two  shall  be  deemed 
perjury. 
Disposal  of  moneys  eollecti'd. 

Skc.  T).  All  moneys  collected  under  the  provisions  of  this  act  shall  be  paid  by  such  tax  col- 
lector, or  license  collector,  into  the  county  treasury,  and  shall  become  a  part  of  the  general 
fund,  or  if  there  shall  in  any  county  lie  no  genera!  fund,  then  the  same  shall  become  a  part  of 
Buch  fund  as  tlie  board  of  supervisors  may  direct. 

Sec.  G.     Tliis  act  shall  take  eCTecfc  on  the  lirsb  Monday  in  April,  187S. 

ARTICLE  II. 

ASSESSMENTS    OF    STOCK. 

331.  Directors  may  levy  assessment.'f. 

Sec.  81J1.  The  directors  of  any  corporation  formed  or  existing  under  the  laws 
of  this  state,  after  one  fourth  of  its  capital  stock  has  been  subscribed,  may,  for 
the  purpose  of  paying  expenses,  conducting  business,  or  ptiying  debts,  levy  and 
collect  assessments  upon  the  subscribed  capital  stock  thereof,  in  the  manner 
and  funn,  and  to  the  extent,  provided  herein.  [Amendment,  approved  March  30, 
1874;  Amnidments  1873^,  20G;  took  effect  July  1,  1874.] 

Assessment.  —  The  stockholders'   liability     has  jurisdiction  to  enforce  the  same:  Alpera  v. 
for  unpaid  assessment  on  the  corporate  stock     Superior  Ct.,  3  West  Coast  Rep.  52G. 
is  founded  on   contract,  and  a  justice's  court 

332.  Limitation  of  assessments. 

Sko.  332.  No  one  assessment  must  exceed  ten  per  cent  of  the  amount  of  the 
capital  stock  named  in  the  articles  of  incorporation,  except  in  the  cases  in  this 
section  otherwise  provided  for,  as  follows: 

1.  If  the  whole  capital  of  a  corporation  has  not  been  paid  up,  and  the  corpo- 
ratiou is  unable  to  meet  its  liabilities  or  to  satisfy  the  claims  of  its  creditors,  the 
assessment  may  be  for  the  full  amount  unpaid  upon  the  capital  stock;  or  if  a 

87 


|3  3r.3-3"6  CO^.rOR/.TTONS.  [Div.  I,  Part  IV, 

less  arLOunt  is  sufiicieut,  then  it  may  be  for  such  a  percentage  as  will  raise  that 
amount; 

2.  The  directors  of  railroad  corporations  may  assess  the  capital  stock  in 
installujents  of  not  more  than  ten  per  cent  per  month,  unless  in  the  articles  of 
incorporation  it  is  otherwise  provided; 

3.  The  directors  of  fire  or  marine  insurance  corporations  may  assess  such  a 

percentage  of  the  capital  stock  as  they  deem  proper. 

Assessments  on  paid  up  stock. — That  a     amination  of  the  question  in  Saiifn  Crnz  /?.  H. 
lBoi'])(>r:itioi>  in  tliis  state  has  jiower  to  levy  as-     v.  JSprtckeU,  2  West  Coast  Rep.  752,  833. 
hessiiieiits  on  paid  up  stock,  see  the  careful  ex- 

J333.    Levy  of  aiise^sment. 

Sec.  333.  No  assessment  must  be  levied  while  any  portion  of  a  previous  one 
remains  unpaid,  unless: 

1.  The  power  of  the  corpoi-ation  has  been  exercised  in  accordance  with  the 
provisions  of  this  article  for  the  purpose  of  collecting  such  previous  assess- 
ment; 

2.  The  collection  of  the  previous  assessment  has  been  enjoined;  or, 

3.  The  assessment  falls  within  the  provisions  of  either  the  first,  second,  or 
third  subdivision  of  section  three  hundred  and  thirty-two. 

834.  What  order  shall  contain. 

Sec.  334.  Every  order  levying  an  assessment  must  specify  the  amount  tliereof , 
when,  to  whom,  and  where  payable;  fix  a  day,  subsequent  to  the  full  terjii  of 
publication  of  the  assessment  notice,  on  which  the  unpaid  assessments  shall 
be  delinquent,  not  less  than  thirty  nor  more  than  sixty  days  from  the  time  of 
making  the  order  levying  the  assessment;  and  a  day  for  the  sale  of  delinquent 
Btock,  not  less  than  fifteen  nor  moi'e  than  sixty  days  from  tae  day  the  stock  is 
declared  delinquent. 

835.  Notice  of  assessment. 

Sec.  335.  Upon  the  making  of  the  order,  the  secretary  shall  cause  to  be  pub- 
lished a  notice  thereof,  in  the  following  form : 

(Name  of  corpoi*ation  in  full.  Location  of  ju'incipal  place  of  business.) 
Notice  is  hereby  given,  that  at  a  meeting  of  the  directors,  held  on  the  (date),  an 
assessment  of  (amount)  per  share  was  levied  upon  the  capital  stock  of  Iho  cor- 
poration, payable  (when,  to  whom,  and  whei'e).  Any  stock  upon  which  this 
assessment  shall  remain  unpaid  on  the  (day  fixed),  will  be  delinquent  aud  adver- 
tised for  sale  at  public  auction,  and,  unless  payment  is  made  before,  will  be 
sold  on  the  (day  appointed),  to  pay  the  delinquent  assessment,  together  with 
costs  of  advertising  and  expenses  of  sale. 

(Signature  of  secretary,  with  location  of  office.) 

836.  Service  and  publication  of  notice. 

Sec.  336.  The  notice  must  be  personally  served  upon  each  stockholder,  or, 
in  lieu  of  personal  service,  must  be  sent  through  the  mail,  addressed  to  each 
stockholder  at  his  place  of  residence,  if  known,  and  if  not  known,  at  the  place 
where  the  principal  office  of  the  corporation  is  situated,  and  be  published  once 
a  week,  for  four  successive  weeks,  in  some  newspaper  of  general  circulation 
and  devoted  to  the  publication  of  general  news,  published  at  the  place  desig- 
nated in  the  articles  of  incorporation  as  the  principal  place  of  business,  aud 
also  in  some  newspaper  published  in  the  county  in  which  the  works  of  the  cor- 
poration are  situated,  if  a  paper  be  published  therein.  If  the  works  of  the  cor- 
poration are  not  within  a  state  or  territory  of  the  United  States,  publication  in 


Title  I,  ^  ii  -.v.  IT.]  CORPORATION^  STOCK.  §§  337-341 

a  paper  of  the  place  where  they  are  situated  is  not  necessary.  If  there  "be  no 
newspaper  published  at  the  jjlace  designated  as  the  principal  place  of  business 
of  the  corporation,  then  the  publication  must  be  made  in  some  other  newspaper 
of  the  county,  if  there  be  one,  and  if  there  be  none,  then  in  a  newspaper  pub- 
lished in  an  adjoining  county.  [Amendment,  approved  MarcliSO,  1874;  Amend- 
menls  1873-4,  20G;  took  e^'ect  July  1,  1874.] 

337.    Delinquent  notice. 

Sec.  337.  If  any  portion  of  the  assessment  mentioned  in  the  notice  remains 
unpaid  on  the  day  specified  therein  for  declaring  the  stock  delinquent,  the  sec- 
retary must,  unless  otherwise  ordered  by  the  board  of  directors,  cause  to  be 
published  in  the  same  papers  in  which  the  notice  hereinbefore  provided  for 
shall  have  been  published,  a  notice  substantially  in  the  following  form: 

(Name  in  full.  Location  of  principal  place  of  business.)  Notice. — There  is 
delinquent  upon  the  following-described  stock,  on  account  of  assessment  levied 
on  the  (date),  (and  assessments  levied  previous  thereto,  if  any),  the  several 
amounts  set  opposite  the  names  of  the  respective  shareholders,  as  follows: 
(Names,  number  of  certificate,  number  of  shares,  amount.)  And  in  accordance 
with  law  (and  an  order  of  the  board  of  directors,  made  on  the  [date],  if  any 
Buch  order  shall  have  been  made),  so  many  shares  of  each  parcel  of  such  stock 
as  may  be  necessary,  will  be  sold,  at  the  (particular  place),  on  the  (date),  at  (the 
hour)  of  such  day,  to  pay  delinquent  assessments  thereon,  together  with  costs 
of  advertising  and  expenses  of  the  sale. 

(Name  of  secretary,  with  location  of  ofiSce.) 
333.    Contents  of  notice.  ., 

Sec  C38.  The  notice  must  specify  every  certificate  of  stock,  the  number  of 
shares  it  represents,  and  the  amount  due  thereon,  except  where  certificates  may 
not  have  been  issued  to  parties  entitled  thereto,  in  which  case  the  number  of 
shares  and  amount  due  thereon,  together  with  the  fact  that  the  certificates  for 
such  shares  have  not  been  issued,  must  be  stated. 

330.   Publication  of  notice. 

Sec.  339.  The  notice,  when  published  in  a  daily  paper,  must  be  published 
for  ten  days,  excluding  Sundays  and  holidays,  previous  to  the  day  of  sale. 
When  published  in  a  weekly  paper,  it  must  be  published  in  each  issue  for  two 
weeks  previous  to  the  day  of  sale.  The  first  publication  of  all  delinquent  sales 
must  be  at  least  fifteen  days  prior  to  the  day  of  sale. 

340.  Jurisdiction  acquired,  how. 

Sec.  340.  By  the  publication  of  the  notice,  the  corporation  acquires  juris- 
diction to  sell  and  convey  a  perfect  title  to  all  of  the  stock  described  in  the 
notice  of  sale  upon  which  any  portion  of  the  assessment  or  costs  of  advertising 
remains  unpaid  at  the  hour  appointed  for  the  sale,  but  must  sell  no  more  of 
such  stock  than  is  necessary  to  pay  the  assessments  due  and  costs  of  sale. 

341.  Sale  fo  he  by  piiblic  auction. 

Ulc.  341.  On  the  day,  at  the  place,  and  at  the  time  appointed  in  the  notice 
of  sale,  the  secretary  must,  unless  otherwise  ordered  by  the  directors,  sell  or 
cause  to  bo  sold  at  public  auction,  to  theliighest  bidder  for  caoh,  so  many 
shares  of  each  parcel  of  the  described  stock  aS  may  be  necessary  to  pay  the 
assessment  and  charges  thei-eon,  according  to  the  terms  of  sale;  if  payment  is 
made  before  the  time  fixed  for  sale,  the  party  paying  is  only  required  to  pay 
the  actual  cost  of  advertising,  in  addition  to  the  assessment. 

89 


§3  342-347  CORFORATIONS.  [Dnr.  I,  Part  IV, 

342.  Highest  bidder  to  he  the  purchaser. 

Sec.  342.  The  person  offering  at  such  sale  to  pay  the  assessment  and  costa 
for  the  smallest  number  of  shares  or  fraction  of  a  share  is  the  highest  bidder, 
and  the  stock  purchased  must  be  transferred  to  him  on  the  stock-books  of  the 
corporation,  on  payment  of  the  assessment  and  costs. 

343.  In  defaull  of  bidders,  corporation  may  purchase. 

Sec.  343.  If,  at  the  sale  of  stock,  no  bidder  offers  the  amount  of  the  assess- 
ments and  costs  and  charges  due,  the  same  may  be  bid  in  and  purchased  by 
Ihe  corporation,  through  the  secretary,  president,  or  any  director  thereof,  at 
the  amount  of  the  assessments,  costs,  and  charges  due;  and  the  amount  of  the 
assessments,  costs,  and  charges  must  be  credited  as  paid  in  full  on  the  books  of 
the  corporation,  and  entry  of  the  transfer  of  the  stock  to  the  corporation  must 
be  made  on  the  books  thereof.  "While  the  stock  remains  the  property  of  the 
corporation,  it  is  not  assessable,  nor  must  any  dividends  be  declared  thereon; 
but  all  assessments  and  dividends  must  be  apportioned  upon  the  stock  held  by 
the  stockholders  of  the  corporation. 

Presumption  that  corporation  has  no  stock  to  sell:  See  CoZ,  Sugar  Mfg.  Co.  \.  Scha/er, 
57  Cal.  S'J6. 

344.  Disposition  of  stock  purchased  by  corporation. 

Sec.  344.  All  purchases  of  its  own  stock  made  by  any  corporation  vest  the 
legal  title  to  the  same  in  the  corporation;  and  the  stock  so  purchased  is  held 
subject  to  the  control  of  the  stockholders,  who  may  make  such  disposition  of 
the  same  as  they  deem  fit,  in  accordance  with  the  by-laws  of  the  corporation. or 
vote  of  a  majority  of  all  the  remaining  shares.  "Whenever  any  portion  of  the 
capital  stock  of  a  corporation  is  held  by  the  corporation  by  purchase,  a  major- 
ity of  the  remaining  shares  is  a  majority  of  the  stock  for  all  purposes  of  election 
or  voting  on  any  question  at  a  stockholders*  meeting. 

345.  Extension  of  time  of  delinquent  sale. 

Sec.  345.  The  dates  fixed  in  any  notice  of  assessment  or  notice  of  delinquent 
sale,  published  according  to  the  provisions  hereof,  may  be  extended  from  time 
to  time  for  not  more  than  thirty  days,  by  order  of  the  directors,  entered  on  the 
records  of  the  corporation;  but  no  order  extending  the  time  for  the  perform- 
ance of  any  act  specified  in  any  notice  is  effectual  unless  notice  of  such  exten- 
sion or  postponement  is  appended  to  and  published  with  the  notice  to  which 
the  order  relates. 

346.  Assessments  shall  not  be  invalidated. 

Sec.  34G.  No  assessment  is  invalidated  by  a  failure  to  make  publication  of 
the  notices  hereinbefore  provided  for,  nor  by  the  non-performance  of  any  act 
required  in  order  to  enforce  the  payment  of  the  same;  but  in  case  of  any  sub- 
stantial error  or  omission  in  the  course  of  proceedings  for  collection,  all  previ- 
ous proceedings,  except  the  levying  of  the  assessment,  are  void,  and  publication 
must  be  begun  anew. 

347.  Action  for  recovery  of  stock  and  limitation  thereof. 

Sec.  347.  No  action  must  be  sustained  to  recover  stock  sold  for  delinquent 
assessments,  upon  the  ground  of  irregularity  in  the  assessment,  irregularity  or 
defect  of  the  notice  of  sale,  or  defect  or  irregularity  in  the  sale,  unless  the  party 
seeking  to  maintain  such  action  first  piiys  or  tenders  to  the  corporation,  or  the 
party  holding  the  stock  sold,  the  sum  for  which  the  same  was  sold,  to^^-ether 
with  all  subsequent  assessments  which  may  have  been  paid  thereon,  and  iuter- 

90 


Title  I,  Chap,  in.]  CORPOP.ATE  POWEES.  §§  3i8-354 

est  on  such  sums  from  the  time  they  were  paid;  and  no  such  action  must  be 
sustained  unless  the  same  is  commenced  bv  the  tiling'  of  a  complaint  and  the 
issuing  of  a  aiummons  thereon  within  six  mouths  after  such  sale  was  made. 

348.  Publication,  how  proved. 

Sec.  348.  The  publication  of  notice  I'equired  by  this  article  may  be  proved 
by  the  afSdavit  of  the  printer,  foreman,  or  principal  clerk  of  the  newspaper  in 
which  the  same  was  published;  and  the  afSdavit  of  the  secretary'  or  auctioneer 
is  prima  facie  evidence  of  the  time  and  place  of  sale,  of  the  quantity  and  par- 
ticular descri2:)tion  of  the  stock  sold,  and  to  whom,  and  for  what  price,  and  of 
the  fact  of  the  purchase  money  being  jDaid.  The  affidavits  must  be  filed  in  the 
office  of  the  corporation,  and  copies  of  the  same,  certified  by  the  secretary 
thereof,  are  prima  facie  evidence  of  the  facts  therein  stated.  Certificates 
signed  by  the  secretary  and  under  the  seal  of  the  corporation  are  prima  facie 
evidence  of  the  contents  thereof.  [Amendmeitl,  approved  March  30,  1874; 
Amendments  1873-4,  207;  took  cjj'ect  Julij  1,  1874.] 

349.  Waiver  of  sale — Action  to  recover  aHsessment. 

Sec.  349.     On  the  day  specified  for  declaring  the  stock  delinquent,  or  at  any 

time  subsequent  thereto  and  before  the  sale  of  the  delinquent  stock,  the  board 

of  dii-ectors  may  elect  to  waive  further  proceedings  under  this  chapter  for  the 

collection  of  delinquent  assessments,  or  any  part  or  portion  thereof,  and  may' 

elect  to  proceed  by  action  to  recover  the  amount  of  the  assessment  and  the 

costs  and  cxjienses  already  incurred,  or  an}'  part  or  portion  thereof. 

Actiou  for  assessments  ill  mining  corpo-  stocklioklcrs'  subscriptio:i   sucli  liability   was 

ratiouo. — That  tliis  t-cotiou  docs  not  create  uor  incurred,  see  Iii,  re  South  Jit.  M.  Co.,  7  Saw.  .30; 

was  intended  to   create   any  personal   liabili.y  S.  C.  8  Id.  3G6.    See  al&o  jJOd,  uote  to  repealed 

fur  assessments,  unless  from  the  terms  of  the  section  584. 


CHAPTER  III. 

CORPORATE  POWERS. 

Article  I.    Genkral  Powers 354 

II.     Rkcords 377 

III.  Examination  of  Corporaiion 382 

IV.  Judgment  against  and  Sale  of  Corporate  Property 388 

ARTICLE  I. 

GENEU.VI.    POWERS. 

354.   Powers  of  corporations. 

Sec.  354.     Every  corporation,  as  such,  has  power: 

1.  Of  succession,  by  its  corporate  name,  for  the  ]>eriod  limited;  and  when  no 
period  is  limited,  perpetually; 

2.  To  sue  and  be  sued,  in  any  court; 

3.  To  make  and  use  a  common  seal,  and  alter  the  same  at  pleasure; 

4.  To  purchase,  hold,  and  convey  such  real  and  personal  estate  as  the  pur- 
poses of  the  corporation  may  require,  not  exceeding  the  amount  limited  in  this 
part; 

5.  To  appoint  such  subordinate  officers  or  agents  as  the  business  of  the  cor- 
poration may  require,  and  to  allow  them  suitable  compensation; 

G.  To  make  by-laws,  not  inconsistent  with  any  existing  law,  for  the  manage- 
ment of  its  property,  the  regulation  of  its  affairs,  and  for  the  transfer  of  its 
stock; 

91 


§354 


COrPORATIGNS. 


[Dxv.  I,  Part  IV, 


7.  To  admit  stocliholJoM  or  me.nbars,  and  to  sell  their  stock  or  shares  for 
the  payment  of  asses3:iient;i  or  iustallinents; 

8.  To  enter  into  any  obligation.}  or  contracts  essential  to  the  transaction  of 
its  orJiuary  alTairs,  or  for  the  purposes  of  the  corporation. 


Powers  of  corporations  are  suth  only  as 
arc  expressly  granted  by  the  act  of  incorpora- 
tion, or  are  necessary  to  the  exercise  of  these  ex- 
press powers:  Sdliiion  li.  M.  Co.  v.  C  an /I,  :^  Went 
Coast  liep.  7v)  (Ilaho).  A  corporation  I)eiup;  a 
mere  "creature  of  the  law,"  sec.  283,  (Uite, 
"it  possesses  <iuly  those  properties  which  the 
charter  confers  ir  on  it,  either  cx))rcssly  or  as 
iiici  Iciital  to  its  v(  ry  existence:  "  Dartmonl.h 
Co!le;/e.  v.  Wood  ward,  4  Wheat.  518;  s.t  also 
Smit'/i  V.  Moore,  2  Cal.  524;  Smith  v.  Enreha 
Flam'  illdls  Co.,  G  Id.  1;  Xeal  v.  Jliil,  IG  Id. 
145;  An/eiiiiv.  Saji.  Frnncuco.  Id.  255;  illners' 
Ditch  Co.  V.  Zdltrbach,  ?u  Id.  543;  Peoj-lf  v. 
F.  <L-  T.  C.  of  a,  33  Id.  IGO;  Vandall  v.  ,S'.  S. 
F.  Dock  Co.,  40  1.1.  83;  Tunipilx  Co.  v.  ///., 
96  U.  S.  G3;  ll^inlliujton  v.  Savliifjn  Bank,  Id. 
3:,S;  Ferti!hh:<j  Co.  v.  Iliide  Park,  97  Id.  GOG; 
Lc  Couteidx  v.  BiilTido,  33  N.  Y.  333;  Werkler 
V.  Flrtit  Xat.  irk'42  Md.  531;  /?.  /.'.  v.  SeApif, 
45  iMo.  220;  Matthewa  v.  Skwker,  G2  Id.  32b; 
MohUe  <L  Ohio  R.  R.  Co.  v.  Franks,  41  Miss. 
494;  Caiiia  v.  Coatcx,  51  Id.  355;  ]Yhit(r  v. 
Mn^coqoe  R.  R.  Co.,  11  Ga.  438;  Whitman 
MiiLiij  Co.  V.  Laker,  3  Nev.  3SG;  IVhlle'.-^  Bank 
V.  Toledo  las.  Co.,  12  Ohio  St.  GOl ;  Bo'i-linrj 
Green  R.  R.  \.  Warren  Co.  Ct.,  10  Bash,  712. 
The  code,  in  dciinin;;  .1  corporation,  says  it  has 
"  certain  powers  an  1  duties  of  a  natural  per- 
son:"  .Sec.  2S3.  Scctii)n  354  proceeds  to  enu- 
merate these  powers,  and  section  355  limits  its 
powers  to  thosj  enumerated  and  to  those  neces- 
sarily incidentul.     In  referring  to  the   powers 


to  a  corporation  when  created,  which,  withont 

any  cx]»re3s  provision,  arc  doomed  inseparable 
to  it.  These  attributes  arc  those  cnnmerate>l  in 
subdivisions  1,2,  3,  4,  G:  1  BLi.  Com.  475,  476; 
2  Kent',')  Com.  224;  Angell  &  Ames  on  Corp., 
sec.  110;  but  these  powers  and  capacities  are 
suliject  to  legislative  limitation  and  modifica- 
tion, and  corporations  created  in  disregard  of 
the  common-law  rules  depend  for  t'.ieir  exist- 
ence and  powers  upon  the  law,  its  creation  and 
objects:  /\nwb-<cot  Corp.  v.  Lnvinon,  IG  Me. 
221;  Beatty  v.  Knoivles,  4  Pet.  152;  7?».s.sei  v. 
Toppi.ifj,  5  McLean,  194;  New  London  v. 
Bniinard,  22  Conn.  522;  Caldn-ell  v.  CUy  of 
Alton,  33  111.  41G.  The  mode  of  exercising  the 
corporate  powers  depends,  in  the  case  of  those 
expressly  griinted,  upon  the  directions  piven  in 
the  statute;  incidental  powers  may  be  exercised 
by  the  corporation's  oflicers  i;nd  agents:  Smith 
V.  Eureka  Flour  Mill  Co.,  0  Cal.  1;  Union  Water 
Co.  V.  Murphii's  Flat  Fiumiic]  Co.,  22  Id.  G29; 
Care>i  v.  P.  A  C.  Pet.  Co.,  33 Id.  G'.)G;  McSpedon 
V.  Mai/or,  7  Bosw.  GOl ;  20  IIow.  Pr,  395;  Ilood 
V.  ^\  Y.  ct-  N.  II.  R.  R.  Co.,  22  Conn.  502. 

Power  to  take  stock  in.  another  corporation. — 
It  i.'5  not  of  itself  idtra  vires  for  one  corporatioa 
to  take  slock  in  another:  Evoms  v.  Bailey,  4 
West  Const  Rep.  427. 

Gubd.  1.  GuGcession  for  period  limited: 
Sec  code  limit  of  fifty  years,  sec.  290.  Limit 
for  homestead  corporations  ten  years:  Sec.  557. 

S  .bcl.  2.  To  sue  and  bo  sued  is  a  common- 
law  attribute  of  corporations:  See  aupra.     The 


which  this  peculiar  body  has  in  conmion  with    action  should  be  taken  i:i  the  corporate  name: 


a  natural  pcr.jon,  Brice,  Ultra  Vires,  p.  28,  re 
marks:  "In  old  times,  corporations  were  con 
sidercd  to  have  most  of  the  powers — the  due 
exercise  of  such  powers  being  secured  by  the 
imposition  of  certain  formalities — and  to  be 
Bub'eitt  to  the  (jreater  part  of  the  obligations, 
of  ordinary  citizens.  But  of  latL%  from  the  in- 
troduction and  development  of  the  doctrine  of 
ultra  <'<rc.s',  tliesc  powers  and  obiigatinns  have 
been,  especially  as  regards  some  kinds  of  cor- 
porations, considerably  curtailed.  It  has  been 
laid  down  that  some,  if  not  all,  corporations 
exist  for  the  attainment  of  certain  objects 
only,  and  that  if  their  powers  are  not  ex- 
pressly, they  are  impliedly,  restricted  to  such 
only  as  are  n  cessary  for  the  due  attainment 
of  those  objects,  and  that  consequently  they 
can  perforr.i  no  acts,  enter  into  no  transacti<ms, 
ami  incur  no  liability  but  such  as  spring  out 
of,  or  nve  otlierwise  incidental  to,  the  purposes 
for  which  t'  ey  have  been  created." 

For  an  extended  consideration  of  the  term 
'^ ultra  riri's,"  see  !t[iner.-i'  Ditch  Co.  v.  Zcller- 
bach,  37  Cal.  543:  Bisselv.  Mh-h.So.  R.  /?.,22N. 
Y.  25 J;  Aft  rney-General  v.  Great  En^tern  /I'y, 
L.  R..  11  Ch.  liiv.,  449.  485-500.  Uitra  vires 
should  liccarefullyd'stinguished  from  illegality, 
which  i^  governed  by  rules  alike  applicaljlc  to 


Cur'iss  v.  Murry,  2G  Cal.  G33;  Nor'.on  v. 
Ilodijcs,  100  Mass.  241;  (.'arlanl  v.  Rrynoldf, 
20  Me.  45;  Commercial  Bank  v.  French,  21 
Pick.  4SG.  Any  legal  or  equitable  remedy 
which  v.-ould  be  available  to  an  individual 
may  bo  resorted  to  by  a  corporation  under  like 
circumstances:  Morawetz  oit  Corp.,  sec.  184. 
It  may  sue  in  the  courts  of  other  states  than 
that  wherein  it  was  organized:  Wi'liamson  v. 
Smout,  12  Am.  Dec.  494;  Rai^k  of  EdwnrdsvilU 
V.  .si)n//.soK.  1  Mo.  184;  Angell  &  .'\nies  on  Corp., 
sec.?.  372-.37G;  Field  on  Corp.,  sec.  3G3. 

The  corporation  being  a  legal  entity,  distinct 
from  the  individuals  composing  it,  it  can  sue 
the  eorporatoi's  or  be  sued  liy  them:  Bar)i.stea/l 
V,  Empire  Mining  Co.,  5  Cal.  299;  Culbertson 
V.  Wabash  N.  Co.,  4  jNIcLcan,  547;  Sawyr  v. 
Meth.  Ep.  Soc,  18  Vt.  405;  Pierce  v.  Par- 
trid'je,  3  Met.  44;  ]VassaH  \.  Plnmfr,  oo  Wis. 
274.  The  corporation  is  the  jiroper  person  to 
institute  proceedings  for  the  redress  of  cor- 
porate injuries.  If,  however,  the  corporation, 
or  its  managing  agents,  the  directors,  i-cfuse  or 
are  unable  to  bring  suit,  a  shareholder  may, 
upon  making  this  showing,  have  an  action  in 
his  own  name  on  behalf  of  all,  to  which  suit 
the  corporation  is  a  necessary  party  defendant: 
Cojswell   V.   Ball,    39    C:d.    320;    il/^'mpAw 


private  persou.s  and  cori)orations,  ami  from  the     Dean,  8  Wall.  G4;  Davenport  v.  Dowes,  13  Id. 
mere  cxc-^eding  t!ie  powers  of  the  corporation's     G2G;  Talbot  v.  Srrippi,  ^l   Mich.  2GS;   Brewer 

'v.   Proprietors  of  Boston    Theater,    104   Mass. 

378;  Sanmel  v.  Ilolliday,  1  Woolw.  400;  Newhy 

Oreipn  R'y  Co.,  1  Saw.  G3;  Butts  v.  Woods, 


agents,  Avhich  is  go\-erned  by  the  rules  of 
agency:  Bis  el  v.  Mich.  So.  R.  /?.,  supra..  The 
"Leading  Principles  of  Ultra  Vires"  are  stated 
in  Brice's  Ultra  Vires,  pp.  41  et  seq. 

The  cummou  law  annexes  certalu  attributes 


37N.  Y.  317;  Dod.jev.  WooUey,  18  IIow,  331; 
Bunn  V.  Van  Dyke,  8  N.  J.  Eq.  795;  Mora- 


92 


Title  I,  Chap.  III.] 


CORPORATE  POWERS. 


§354 


wetz  on  Corp.,  sees.  381  et  scq.  And  as  to  the 
right  of  stockholder  to  redeem  for  the  l.eu. lit 
of  llie  corporators  corporate  property  sold 
under  e.xccutiou,  eee  Wright  v.  Oroviilc  M.  Co., 
40  C.d.  20. 

Whero  action  against  corporation  inay 
be  brought:  See  Const.  L'al.  1S79,  i;rt.  12,  sec 
15;  sec  Cod'.;  Civ.  Proc,  sec.  3;^,  in  note. 

Subd.  3.  To  ma  1.0  and  use  comnicn  seaL 
At  tiic  coiiinum  law  it  was  an  essential  c!iar- 
actcristic  of  cuiponitions  that  they  sliould  act 
under  a  corporate .'  eal :  Angell  &  Ames  on  Corp., 
see.  2S1.  But  this  doctrine  is  now  nuiversally 
abandoned  in  the  United  fcitates,  and  it  is  well 
settled  that  a  corporation  may  make  a  eon- 
tract  witliout  a  .seal:  Bank  of  Co'iinJ/ia  v. 
Patln-iiOii,  7  Cranch,  299;  Flerkner  v.  r.ank  of 
U.  S.,  8  Wheat.  :;38;  Umik  of  U.  S.  v.  Dan- 
dridijc,  12  Id.  G4;  ihcstuut  J  J  ill  T.  Co.  v.  Hat- 
ter, 8  Am.  Dec.  (;7o;  Canal  Brklije  v.  Gordon, 
11  Id.  70;  Molt  V.  nicks,  13  Id.  550,  aud  the 
note  thereto;  Ba/'list  Church  v.  Midford,  8 
N.  J.  L.  185;  McCullowjh  v.  Talladega  L'S. 
Co., 4G  Ala.  37G;  Sheffield  Township  v.Audretf^, 
50  Ind.  1^7;  Town  cf  New  Athens  v,  Thoniax, 
82  111.  259;  BnckUn  v.  BrUjgs,  30  Mo.  4:2. 
It  13  also  the  settled  doctrine  in  America  that 
corporations  may  appoint  agents  by  resolulion 
or  voLe  witho'.ifc  the  corporate  seal:  Leqijelt 
V.  A'.  J.  M.  tt-  /;.  Co.,  23  Am.  D(  c.  74.],'  in 
note;  0-iborii  v.  Bank  of  U.  S.,  9  Whc.".t.  738; 
Western  Bunk  v.  Ci'strap,  45  Mo.  419;  Mo- 
rawetz  on  Corp.,  sec.  107. 

Prior  to  the  adoption  of  the  codes  in  Cali- 
fornia, it  Irul  been  held  that  tlio  deeds  of  a 
corporation  must  be  under  seal:  lichard.son  v. 
S.  n.  ir.  d:  M.  Co.,  22  Cal.  l.'/J.  Sections 
1023  and  1029,  which  in  this  connection  have 
not  icccived  a  construction  by  our  supreme 
court,  m  y  have  some  Ijcariug  on  the  subject. 

Ilavinj  a  seal,  a  corporation  may  alter  it  at 
pleasure,  an  I  m:iy  adopt  as  its  own  the  pri- 
vate seal  of  .".n  indvidual.  But  such  se.il  when 
60  adopted  must  bo  useel  as  the  seal  of  the 
corporation:  llkhardson  v.  Scott  It.  \V.  <t  J/. 
C(>.,22Ca!.  I.jO.  It  may  adopt  any  seal  con- 
venient: Eureki  Co,  v.  Bailc/  Co.,  11  Wall. 
491;  Tenneij  v.  East  Warren' Co.,  43  N.  II. 
343;  Bin':  </  Middldmrrj  v.  Bulland  U.  B. 
Co.,  30  Vt.  150;  Porter  v.  Androscoggin  /.'.  R. 
Co.,  37  Jlc.  319;  Johnson  v.  Crawlci.  25  Ga. 
310;  SteUns  v.  Merritt,  10  Cusli.  "'27;  MIU- 
da.il  l\u,idnj  v.  Ilovey,  21  Pick.  417. 

When  the  common  seal  of  a  corporation 
appears  to  bo  alHxed  to  an  instru;nent,  and 
the  signatures  of  tlie  proper  oinccrs  arc  proved, 
the  seal  itsjlf  i3  }iriina  facie  evidence  that  it 
was  alJJNcd  by  proper  authority:  So.  Cal. 
Colony  As.sUi  v.  Bustumente,  52  Cal.  192;  and 
Leggett  v.  N.  J.  M.  <fc  B.  Co.,  30  Am.  Dec. 
745;  and  SCO  pot,  "Property  of  C^rpor.ations." 
The  se.l  of  a  private  corporalioa  does  not 
prove  itsj'f,  but  must  bo  proved  by  evidence: 
Den  V.  Vreelindt,  11  Am.  Dec.  551;  Foter 
V.  Shaw,  7  Sjrrj.  &  R.  101;  Leazure  v.  llillc- 
gaa,  Id.  313;  Farmers' etc.  Co.  v.  McCullough, 
25  Pa.  St.  334.  Bat  the  presumption  is  that 
a  seal  allixed  to  a  corporato  deed  by  the  proper 
officer  i3  tlio  corporato  seal  until  the  contrary 
appears:  Mill-dam  Foundn/  v.  Ilovry,  21  Pick. 
417;  Stebbiusy.  Merrill,  10  Cusli.  27;  Phillips 
V.  Coffee,  17  111.  154;  I'eyiiolds  v.  Trusters,  G 
Dana,  37;  B:ink  of  MiddUbun/  v.  Rutland  etc. 
E.  R.  Co.,  30  Vt.  159;  Tenney  v.  East  Warren 
Lumber  Co.,  43  N.  IL  343.    It  is  euouyh  if  it 


appears  to  have  been  afilixed  as  the  corporate 
si'al  by  the  proper  officer:  Osborne  v.  Tunis,  25 
N.  .J.  L.  (J.l:i 

Subd.  4.  Property  of  corporations. — With 
respect  to  the  amount  of  real  proper ::y  which  a 
corporal  ion  may  hold,  see  post,  zee.  330,  and  note. 
In  speaking  of  the  general  power  of  a  corpora- 
tion to  tlispose  of  tlie  property,  Judv;e  Camp- 
bell, deliverin;?  the  opinion  of  the  court  in 
While  Water  Valiey  Ciiml  Co.  v.  !'«/ 6^/^,21 
How.  424,  mak"3  the  following  comprehensive 
statement:  "It  is  well  settled  that  a  corpora- 
tion, without  special  authority,  may  dispose  of 
lands,  goodn,  and  cliattcls,  or  of  any  interest  in 
tlie  same  as  it  deems  expedient,  and  in  the 
course  of  its  legitimate  business  may  make  a 
bond,  mortgage,  note,  or  draft,  and  also  may 
make  compo3i.ions  with  creditors,  or  an  as- 
signment for  their  benefit  with  preferences, 
except  wlicn  restrained  by  law:  Partridge  v. 
Badger,  25  Barb.  140;  Barrye  v.  Mer-haiUs' 
Exchange  Co.,  1  Sandf.  Ch.  289;  Burr  v.  Pliavix 
G'nssCo.,  14  Barb.  .358;  Dat<r  v.  BankofU.  S., 
5  Watts  &  S.  223;  Frazler  v.  Wilccx,  4  Rob. 
(La.)  517;  U.  S.  Bank  v.  IJiUh,  4  B.  Mon.  423; 
State  V.  Ba)d:  of  Maryland,  G  Gill  &  J.  3-'3;  Pierce. 
V.  Emery,  32  N.  H.  4SG."  To  tlie  same  effect 
is  Miners'  Ditch  Co.  v.  Zellerbach,  37  Cal.  588. 
The  co;poration  may  sell  all  its  property  for  a 
corporate  or  lawful  purpose:  Id.;  Piople  \.  P. 
d-  T.  C.  ofC,  33  Id.  IGG;  Sargent  v.  ll'ebster,  13 
]Met.  498;  Treadwell  v.  Satl^'b-'ry  Mfg.  Co.,  7 
Gray.  393;  Hodges  v.  New  England  Screw  Co., 
1  R.  I.  317.  The  ownership  of  property  is  not 
essential  to  the  existence  of  a  corporation,  nor 
is  a  corporation  dissolved  by  a  sale  of  all  its 
property:  Sullivan  v.  Triunfo  M.  Co.,  39  Cal. 
459. 

Restraints  upon  the  power  of  alienation  may 
be  imposed  cither  by  the  charter  or  by  the  na- 
ture of  the  corporation:  Richards  v.  Railroad, 
44  N.  II.  1.3G. 

A  corporation  may  mortgage  its  realty: 
Davis  V.  Bark  Creek  L.  F.  cC-  M.  Co.,  55  Cal, 
359;  Union  WatrCo.  v.  Mtirphy's  Fiat  Fluming 
Co.,  22  Id.  G20;  Aurora  Agricultural  Soci'ty  v. 
Paddock,  SO  III.  203;  Thompson  v.  Lambert,  44 
Iowa,  233;  Bardiiloton  R.  R.  Co.  v.  Metcalfe, 
4  Mete.  (Ky.)  199;  Susqnehannah  Bridge  Co.  v. 
Venerea  Ins.  Co.,  3  Md.  305;  Burt  v.  Rattle,  31 
Ohio  St.  IIG;  Watts's  Appeal,  78  P.i.  St.  370 
The  general  [lOwer  to  purcliase  land  and  dis- 
pose thereof  imports  the  riglits  to  mortgage  to 
secure  debts:  Jackson  v.  Brown,  5  Wend.  590; 
Gordon  v.  Preston,  1  Watts,  3J5;  Watts'  Ap- 
peal, 78  Pa,  St.  lilO;  7aber  v.  Cincinnati  R.  R. 
Co.,  15  Ind.  459;  McAllister  v.  Plant,  54  Miss. 
lOG;  Westv.  Madison  Co.  Aijr.  Board,  82  III. 
205. 

The  power  to  sell  and  convey  corporato  prop- 
erty can  be  conferred  only  by  the  board  of 
trustees  when  acting  as  such:  Ocushwiler  v. 
Willis,  33  Cal.  11.  Tlio  president,  as  such,  has 
no  authority  to  purchase  or  sell  real  estate  in 
the  name  of  the  corporation:  Bliss  v.  A'an- 
weak  Camd  <0  /.  Co.,  3  West  Co.ast  Rep.  571; 
SCO  also  Bank  cf  I lecddsburg  v.  Bailhace,  Id. 
149,  that  authority  from  tlio  trustees  is  neces- 
sary to  enable  the  bank  agent  to  co.npromiso  a 
defalcation  by  taking  a  deed  of  land  in  the 
bank's  name.  The  statutory  and  charter 
requisites  a3  to  who  shall  execute  corporate  con- 
tracts, and  in  what  manner  the  authority  there- 
for shall  bo  givcii,  must  be  strictly  observed: 
Id.;  Warner  v.Motoer,  UVt.  385;   W/ieelockv. 


93 


8354 


CORPORATIONS. 


[Div.  I,  Part  IV 


Moulton,  15  Id.  519;  hham  v,  Benninfjton  Iron 
Co.,  19  Jrl.  2:50.  Ami  consult  the  uote  to  Ley- 
gett  V.  N.  J.  M.  d:  B.  Co.,  23  Am.  Dec.  742  et 
eeq. 

Where  an  instrument  purporting  to  be  exe- 
cuted by  the  corj)onitiou  bears  the  corporate 
eeal  apparently  aflixed  by  the  custodian  thereof 
and  proof  of  tlie  signatures  of  the  oUicers  is 
made,  tlie  presumption  is  that  such  instrnmuut 
was  executed  purr-nant  to  regular  and  lawful 
authorlLy.  Angell  &  Ames  on  Corp.,  sec.  224; 
1  Kyil  on  Corp.,  2G8:  McCracken  v.  City  of  San 
Francisco,  IG  Cal.  039;  Miners'  Ditch  Co.  v. 
Zrllerbach,  37  Id.  543.  598;  Berks  etc.  T.  Road 
Co.  V.  3I//prs,  0  Am.  Dec.  402;  Conine  v.  Junc- 
tion /?.  Ji'.  Co.,  3  Iloust.  288;  Solomo7i'n  Lodje 
V.  Montmollin,  53  Ga.  547;  Blackshire  v.  Iowa 
Homestead  Co.,  39  Iowa,  024;  Adams  v.  His 
Cmdilor^,  1 1  La.  454;  Morria  v.  Kerl,  20  Minn. 
631;  St.  Louis  Public  Schools  v.  Risleij,  23  Jlo. 
419;  Chovq/tette  v.  B  irrada.  Id.  491;  Evans  v. 
Lee,  11  Nev.  194;  Fnnt  v.  Clinton  Co.,  12  N. 
H.  450;  Iloyt  v.  Thompson,  5  N.  Y.  3;;5; 
Lovett  V.  Steam  Saw-77iiU  Association,  G  Paige, 
64;  Bank  of  Ver<jrniies  v.  Warren,  7  Hill,  01. 

The  conveyances,  to  be  binding  upon  a  corpo- 
ration, must  be  executed  in  its  own  name  and 
seal.  For  example,  if  an  individual's  seal  is 
used,  and  is  alUxed  as  the  seal  of  that  private 
person,  it  cannot  bo  treated  as  the  seal  of  the 
corporation — and  especiallj'  will  a  declaration 
in  tlie  instrument  that  the  seal  is  an  individ- 
ual's be  conclusive  of  its  character  and  eiTcct: 
Bichardyon  v.  Scott  R.  W.  &  M.  Co. ,  22  C  .1. 
150.  Where  the  conveyance  describes  the 
grantors  as  a  corporation,  but  is  executed  by 
the  president  under  his  own  hand  and  seal,  it 
is  not  the  corjioration's  deed:  Hatch  v.  Barr,  1 
Ohio,  390;  Zoller  v.  Lie,  1  Neb.  439.  So  where 
the  treasurer  executed  the  deed  in  his  own 
name,  though  reciting  that  lie  executed  it  on 
behalf  of  the  corporation:  Brinley  v.  Mann,  2 
Cush.  357.  So  also  where  a  mortgage  was 
signed  and  sealed  in  the  president's  name: 
Mdler  v.  Rutland  R.  R.  Co.,  36  Vt.  452.  And 
compare  Haven  v.  A  dams,  4  Allen,  80;  Tenney 
V.  East  Warrm  Lamber  Co.,  40  N.  H.  31;i, 
where  the  deeds  were  declared  corporation  in- 
struments, tiiey  purporting  to  be  conveyances 
by  the_  corporatjon,  and<  bding  signed  by  the 
officers'thcreof. 

Acquirius  property  by  eminent  domain: 
See  Code  Civ.  Proc,  sees.  12."]7  et  seq. 

Maldng  contracts  generally:  See  infra, 
Bubd.  8. 

Subd.  5.  OS cers,  agents,  and  their  com- 
pensation.— Corporations  must  act  througli 
officers  and  agents.  And  what  it  may  do  by  it- 
self it  may  do  by  an  agent:  McKiernan  v. 
Lenzen,  50  Cal.  01.  Corporate  existence  must 
precede  appointment  of  agent:  Kelly  v.  Ruble, 
3  West  Coast  Rep.  737  (Or.). 

The  appointment  of  agents,  which  at  common 
law  was  required  to  be  under  seal,  is  now  ad- 
mitted to  be  valid  without  the  corporate  seal: 
Crowley  v.  Gennesaee  M.  Co.,  55  Cal.  273;  Pixl'-y 
V.  W.  P.  R.  R.  Co.,  33  Cal.  192;  Angell  &  Ames 
on  Corp. ,  sec.  283 ;  Stamford  Bank  v.  Benedict,  1 5 
Conn.  445;  Clark  v.  Benton  Mffj.  Co.,  15  Wend. 
256;  Wofy.  Goddard,  9  Watts,  544.  And  as 
in  the  case  of  agency  generally,  the  appointment 
may  be  either  by  previous  authority,  or  it  may 
be  evidenced  by  acts  of  ratitication  on  tiie  part 
of  the  corporation:  Forbes  v.  S.  R.  T.  Co.,  50 
Cal.  340;  Seeley  v.  San  Josi  I.  M.  <fc  L.  Go.,  59 


Id.  22;  Pixley  v.  W.  P.  R.  R.  Co.,  33  Id.  183} 
and  Bee  Crowley  v.  Genne-^se  M.  Co.,  Kupra} 
Perrjv.  Simpson  Mfj.  Co.,  37  Conn.  .520;  Smi' 
ley  V.  Mayor,  G  Iluisk.  004;  Clark  v.  Pratt,  47 
Me.  55;  Alabama  R.  R.  Co.  v.  Kii/d,  29  Ala. 
221.  But  the  contracts  of  agents  cannot  be 
ratified  so  as  to  bind  the  corporation,  if  they 
are  such  as  the  corporation  could  not  have  au- 
thorized their  agents  to  make:  Pixley  v.  IT.  P. 
R.  R.  Co.,  33  Cal.  183,  explaining  Zottman  v. 
San  Francisco,  20  Id.  9G,  and  Wallace  v,  San 
.'os^.,  29  Id.  180. 

As  to  tlie  power  of  the  president,  as  general 
agent  of  the  corporation,  to  raise  money  fur  the 
company  to  carry  on  its  business,  give  notes,  and 
pay  indebtedness,  see  Seeley  v.  San  Josi  I.  M. 
tt-  L.  Co.,  59  Cal.  22. 

Compensation. — Directors  of  corporations 
are  presumed  to  render  their  services  gratui- 
tously, and  are  not  entitled  to  compensation 
even  for  acts  done  outside  of  their  ordinary 
duties  unless  compensation  has  been  pre- 
viously stipulated  for:  Pierce  on  Railroads, 
31.  A  prior  agreement  to  pay  a  director  sal- 
ary rebuts  this  presumption  and  will  bind 
the  corporation:  Jkdl  v.  Vt.  <0  M.  R.  Co., 
23  Vt.  401;  Ilodjes  v.  Rutland  d:  B.  R.  Co.,  29 
Id.  220;  American  Cent.  R.  Co.  v.  Miles,  52  111. 
174;  Illinois  Linen  Co.  v.  Hough,  91  Id.  63; 
Maux  Ferry  Gravel  R.  Co.  v.  Brancja't,  40  Ind. 
331;  Butts  V.  Wood,  37  N.  Y.  317.  Some  cases 
hold  that  the  presumption  above  mentioned 
does  not  apply  to  services  wliich  are  special,  or 
of  acliaracter  outside  of  a  dircctor'.s  duty:  Hall 
V.  Vt.  <t  M.  R.  Co.,  28  Vt.  401;  Grid'ey  v.  La- 
fay>'t'.e  B.  &  M.  R.  Co.,  71  111.  200;  X.  Y.  <fc  N. 
JI.  R.  Co.,  27  Conn.  170;  Ro'/er-f  v.  Hastings 
db  I).  R.  Co.,  22  JNIinn.  23;  Santa  Clara  Min- 
ing A ss'n  V.  Meredith,  49  Md.  339.  Some  doubts 
are  cast  upon  the  projjriety  of  the  presumption 
in  any  case,  in  Rosborough  v.  Shasta  River 
Canal  Co.,  22  Cal.  556.  The  rule  which  ex- 
cludes compensation  applies  to  a  president 
chosen  by  the  directors  from  their  number; 
Merrick  v.  Peru  Coal  Co.,  0  111.  472;  L'^vi^cev. 
Shrevepnrt  City  R.  Co.,  27  La.  Ann.  641;  Nil- 
Patrick  V.  Penrose  lurry  Bridge  Co.,  49  Pa.  St. 
118;  and  to  a  treasurer  when  a  director:  Hold- 
er V.  Lafayette  B.  d-  M.  R.  Co.,  71  111.  106. 

The  presumption  of  gratuitously  rendering 
services  is  not  rebutted  l;y  proof  that  the  di- 
rector expected  that  he  was  to  receive  pay,  in 
the  absence  of  some  action  by  the  corporation 
to  justify  this  expectation:  New  Yorkd:  N.  H. 
R.  Co.  V.  Ketchum,  27  Conn.  170.  But  if  it  is 
the  expectation  and  understanding  of  both  j^ar- 
ties  that  the  services  arc  to  be  paid  for,  such 
understanding  and  expectation,  although  not 
sufficient,  perhaps,  to  amount  to  an  agreement, 
removes  the  presumption  of  gratuitous  perform- 
ance of  the  services:  Rosborongh  v.  S/uista  River 
Canal  Co.,  22  Cal.  556,  a  case  of  a  president's 
action  for  salary.  And  in  a  suit  to  recover  the 
value  of  services  rendered  to  a  corporation  by 
a  director,  all  evidence  that  will  show  the  re- 
lation of  the  parties,  and  effect  the  question  of 
presumption,  is  admissible:  B  irstow  v.  Rail- 
road Co.,  42  Id.  465.  And  a  director  who 
acted  as  superintendent  was  allowed  to  recover 
in  Neall  v.  IJill,  16  Id.  145,  there  being  no 
fraud  shown. 

A  subsequent  vote  of  tlie  board  of  directors 
to  pay  a  director  for  his  services,  when  there 
was  no  previous  agreement  therefor,  is  not 
binding:    First   Nat.   Bank  of  Fort  Scott  v.. 


94, 


Title  1,  Ohap.  HI.] 


CORPORATE  POWERS. 


§§  355-357 


DrnJce,  2  Bank.  Law  J.  99  (Kan.);  Chandler  v. 
Bank,  3  N.  J.  L.  255;  Itoilroad  Co.  v.  Milfx, 
52  111.  17t;  Merrick  v,  Peru  Co.,  Gl  Id.  472; 
Bolder  V.  L.  B.  .{-•  M.  R.  Co.,  11  Id.  lOG:  Id. 
Linen  Co.  v.  Ilough,  91  Id.  (53;  Manx  Ferry 
Gravel  Road  Co.  v.  Branegan,  40  Ind.  30 1;  iV'. 
Y.  d-  N.  If.  R.  Co.  V.  Ketchum,  27  Conn.  170. 
But  ill  the  California  case  of  J'osl'Orowjh  v. 
Shasta  etc.  Co.,  22  Cal.  56,  the  subsequent  reso- 
lution was  used  to  help  out  the  previous  under- 
standing to  pay  a  jjresident  for  his  services. 

Officers  and  agents,  not  directors,  are  enti- 
tled to  recover  on  a  quantum  meruit,  wliere  no 
price  is  fixed:  Fraylor  v.  Sonora  M.  Co.,  17 
Cal.  594;  Bee  v.  S.  F.  tfc  //.  B.  R.  R.  Co..  40  Id. 
248,  where  the  question  of  the  value  of  a  su- 
perintendent's services  was  involved;  Missouri 
E.  R.  Co.  v.  R'.chards,  8  Kan.  101;  Rogers  v. 
Hastings  ,i-D.  R.  Co.,  22  Minn.  25. 

The  power  of  removing  the  private  or  minis- 
terial otiiccrs  of  a  private  corporation  Ixlongs 
to  the  corporation  alone.  Courts  cannot  re- 
move snch  oilicers:  Neallv.  Hill,  10  Cal.  145. 

Subd.  G.  Power  to  make  by-laws:  See 
ante,  sec.  301,  and  note. 

Sellins  delinquent  shares:  See  ante  sees. 
331  ft  scq. 

Subd.  0.  To  make  contracts. — With  re- 
epect  to  contracts  in  respect  to  real  estate,  see 
supra,  subd.  4.  As  to  the  validity  of  mortgages, 
see  same.  Among  the  contracts  which  it  lias 
been  le^icatedly  decided  that  a  corporation  may 
make,  altliough  such  power  would  seem  n"t  to 
be  subject  of  (jucstion  under  the  general  priu- 
ciplo  that  *'a  corporation,  in  order  to  attain  its 
legitimate  o'ojecls,  may  deal  precisely  as  an  in- 
dividual may  who  seeks  to  accomplish  the 
same  ends:"  Bary  v.  Merchtnt-i'  Ex  Co.,  1 
San^lf.  Ch.  2S0,  are:  1.  The  borrowingof  money 
to  carry  on  the  business  for  which  it  was  incor- 
porated, altliou;..h  such  right  was  not  reserved 
by  the  charter:  Magee  v.  Mokelumne  II dl  Cunal 
Co.,  5  Cal.  2.'S;  and  see  Seeley  v.  •SanJo-.e  I.  M. 
d-  L.  Co.,  ^.'^  Id.  22;  Curtis  v.  Leavltt,  15  N.Y. 
9;  Smith  v.  Lair,  21  Id.  290;  Union  Minim]  Co. 
V.  Roely  Ml.  Xat.  Bank,  2  Col.  248;  IlachHts- 
town  V.  Swaekhamer,  37  N.  J.  L.  191 ;  Alabama 
Inn.  Co.  V.  Central  etc.  Ass'n,  54  Ala.  73; 
Thompson  v.  Lanihcrt,  44  Iowa,  239.     And  the 

355.    Limilatlon  of  power. 


general  right  to  borrow  money  implies  the 
power  to  mortgage  all  corporate  proi>erty  ex- 
cept franchises,  unless  restrained  by  express  pro- 
hibition in  the  act  of  incorporation,  or  by  some 
general  statute:  Green's  Brice's  Ultra  Vires,  pp. 
224,  in  note,  et  seq.;  see  also  supra,  subd.  4. 
2.  The  giving  of  a  note.  "No  question  is 
better  settled  upon  authority  than  that  a  cor- 
poration, not  prohibited  by  law  from  doing  so, 
and  without  any  express  power  in  its  charter 
for  that  purpose,  may  make  a  negotiable  prom- 
issory note,  jiayable  either  at  a  future  day  or 
upon  demand,  when  such  note  is  given  for  any 
of  the  legitimate  purposes  for  which  the  com- 
pany was  incorporated:"  Mosa  v.  Avrrilt,  10 
N.  Y.  457;  Se/ley  v.  SanJos6  I.  M.  d:  L.  Co.,  59 
Cal.  22;  Molt  v.  Hicks,  13  Am.  Dec.  550  ;  and 
note;  Buckley  v.  Briggs,  30  Mo.  452;  Came  v. 
Briglinm,  39  Me.  35;  Clark  v.  School  District, 
3  11.  I.  199.  With  regard  to  the  manner  of 
executing  a  note  so  as  to  make  it  the  corpora- 
tion's obligation,  it  is  sutlicient  if  it  appear 
from  the  entire  instrument  that  such  was  the 
intention:  Blanchard  v.  Kaull,  44  Cal.  440; 
flasbliv.  Cornish,  13  Id.  45;  Sharer  v.  Ocean 
Mining  Co.,  21  Id.  45;  Smith  v.  Eureka  Flour 
Mil's,  6  Id.  1;  Farmers'  d:  Mechanics'  Bank  of 
Savings  v.  Colby,  04  Id.  352,  a  case  where  the 
company's  name  did  not  appear  in  the  body  of 
the  note,  which  was  signed  by  G.  A.  C.  and  D. 
K.  T.,  in  their  official  capacity,  and  by  them 
and  others  indorsed.  The  general  principle  in- 
volved in  tiiese  eases  is  well  settled.  It  is  its 
application  to  particular  circumstances  that 
gives  rise  to  the  difficulty:  See  1  Daniel  on 
Neg.  Inst.,  sees.  .398  et  seq.  The  execution  Oj 
conveyances  by  corporations  is  touched  upon 
in  subdivision  4,  supra.  A  corporation  may 
enter  into  a  contract  of  guaranty:  Low  v.  C.  P. 
R.  /*.,  52  Cal.  53.  It  may  make  an  assign- 
ment: McKifrnan  v.  LcnZ'-n,  50  Cal.  Gl.  A 
contract  in  consideration  of  protecting  the  cor- 
poration from  loss  on  a  guaranty  is  binding, 
although  the  guaranty  is  not:  Mound  City  L. 
d  W.  A.'is'n  V.  Slauson,  3  West  Coast  Rep.  372. 

The  general  doctrine  of  u!tra  vires  is  adverted 
to  in  the  commencement  of  this  note. 

Po'wrers  of  municipal  corporations:  See 
Pol.  Code.        . 


Sec.  S'jG.  In  addition  to  the  po-w^ers  enumerated  in  the  preceding  section, 
and  to  those  expressly  given  in  that  title  of  this  part  under  which  it  is  incor- 
porated, no  coi*poration  shall  possess  or  exercise  any  corporate  powers,  except 
such  as  are  necessary  to  the  exercise  of  the  powers  so  enumerated  and  given. 

Incidental  povrers. — This  section  isanega-  whicii,  see  sec.  354,  and  note,  at  thecommeace- 
tive  grant  of  incidental  powers,  with  respect  to     meut  thereof. 

356.  Bnnkbuj  expressly  prohibi/cd. 

Sec  35G.  No  corporation  shall  create  or  issue  bills,  notes,  or  other  evidences 
of  debt,  upon  loans  or  otherwise,  for  circulation  as  money. 

Violation  of  section  a  penal  offense:  tation  upon  corporate  powers  docs  not  prevent 
Pen.  Code,  sec.  G48.  the  execution  of   negotiable   instruments,   see 

Constitutional  provision  to  the  same  purpose:     sec.  354,  subd.  S,  and  note. 
Const.  Cal.  1879,  art.  12,  sec.  5.    That  this  limi- 

357.  Uluinomfr  does  not  invalidate  iwttrument. 

Sec.  357.  The  misnomer  of  a  corporation  in  any  written  instrument  does  not 
invalidate  the  instrument,  if  it  can  be  reasonably  ascertained  from  it  what  cor- 
poratiou  is  intended. 

05 


§§  358,  350  COIUr  RATIONS.  [Div.  T,  Paut  IV, 

Misnomer  of  corporatfon  no  more  impairs  In  pleading,  the  misnomer  should  be  taken 
the  validity  of  its  acts  tliaii  a  like  error  iu  the  advantage  of  by  plea  in  abatem-jnt:  Dank  of 
name  of  an  individual.  It  its  contracts  ex-  Utici  v.  SmaUei;,  14  Am.  Doc.  5"2().  With  re- 
pressed in  writing  contain  sufDcient  to  identify  spcct  to  the  degree  of  accuracy  req  nisi  to  ia 
the  corporation,  tlie  misnomer  is  uninipnrtant:  criminal  pleadings,  see  People  v.  Putter,  '.\o  Cat. 
Jlajerstown  T.  Ro<id  v.  Vre'^'/T,  9  Am.  Dec.  111.  Sec  generally,  upon  the  effect  of  misnomer, 
495,  and  nute;  ijerks  I'oad  v.  J\Ii/i'r>i,  2  Id.  402;  Angell  &  Ames  on  Corp.,  see.  99;  Alorawctic  oa 
Thatchrr  v.  IIV.s<  River  Nat.  Bank,  19  jMich.  Corp.,  sec.  181. 
19G;  Ptoplt  V.  .S'.  B.  Q.  M.    Co.,  39  Cal.   514. 

358.  Corporation  to  organize  within  one  year. 

Sec.  358.  If  a  corporation  does  not  or^^aniza  and  commence  the  transaction 
of  its  business  or  the  construction  of  its  works  within  one  year  from  the  date  of 
its  incorporation,  its  corporate  powers  cease.  The  due  incorporation  of  any 
company,  claiming  in  good  faith  to  be  a  corporation  under  this  part,  and  doing 
business  as  such,  or  its  right  to  exercise  corporate  powers,  shall  not  be  inquired 
into,  collaterally,  in  any  private  suit  to  which  such  de  facto  corporation  may  bo 
a  party;  but  such  inquiry  may  be  had  at  the  suit  of  the  state  on  information  of 
the  attorney-general. 

Organiiiation  Tvlthin    one    year. — As   an  ance  of  acts  relating  to  the  organization  of  a 

illustration  of  what  is  meant  by  commencing  corporation  can  only  be  investigated  in  a  direct 

to  transact  the  corporate   business  within  the  proceeding  instituted  for  tliat  purpose,  ami  not 

year,  see  People  v.  S.  d:  V.  R.  R.  Co.,  45  Cal.  in  a  collateral  action:  S.   V.   H'.   W.  Co.  v.  Xan 

306.     If  a  franchise  is  granted  by  the   state  Francisco,   21   II.  441;  AfcFarlaii<l  v.    Triton 

upon  the  condition  that  the  corporation  con-  Ins.  Co.,  4  Denio,  392;  Eiton  v.  Aspimnall,  19 

etructs  certain  works  in  a  specified  time,  a  fail-  N.  Y.  119;  Searshnnj   T.   Co.   v.  (Jolfer,  0   V't. 

nre  so  to  d;)  works  a  forfeiture  with(ntt  judg-  323;  Dunniixj  v.  New  Albany  <t'  Salem  R.  R, 

ment  at  suit  of  the  state:  0.  R.  R.  Co.  v.  0.  B.  Co.,  2  Ind.  437;  Jiidah  v.  American  LiVe-stock 

<L-  P.  V.   R.  Co.,   Id.   305.     An  inquiry  as  to  /«.■).  Co.,  4  Id.  3SS. 

the  right  of  a  company  to  act  as  a  cor[>oratioa  Provision  respaotln^  railroad  companies, 

can  only  be  had  at  the  suit  of  the  state  on  in-  two  years:  See  sec.  4GS,  post. 

formation  by  the  attorney -general:  Rondelt  v.  Sa:ii3    respecting    street  railroads:   See 

i^ay,  32  Id.  354.     The  irregular  ornon-perform-  sec.  502,  ^'osi. 

359.  Isauing  bonds—  Increasing  and  diminishing  capital  stock. 

Sec.  3o9.  No  corporation  shall  issue  stock  or  bonds  except  for  money  paid, 
labor  done,  or  property  actually  received,  and  all  fictitious  increase  of  stock  or 
indebtedness  shall  be  void.  Every  corporation  may  increase  or  diminish  its 
capital  stock,  or  increase  its  boiided  indebtedness,  subject  to  the  foregoing  pro- 
vision of  this  section,  at  a  meeting  called  by  the  directors  for  the  purpose,  as 
follows: 

1.  Notice  of  the  time  and  the  place  of  the  meeting,  stating  its  object,  and  the 
amount  to  which  it  is  proposed  to  increase  or  diminish  the  capital  stock,  must 
be  pei'sonally  served  on  each  stockholder  resident  in  the  state,  at  his  place  of 
residence,  if  known,  and  if  not  known,  at  the  place  where  the  principal  office  of 
the  corporation  is  situated,  and  be  published  in  a  newspaper  published  iu  the 
county  of  such  principal  place  of  business  once  a  week  for  nine  weeks  success- 
ively. 

2.  The  capital  stock  must  in  no  case  ba  diminished  to  an  amount  less  than 
the  indebtedness  of  the  corjioration,  or  the  estimated  cost  of  the  works  Avhich 
it  may  be  the  purpose  of  the  corporation  to  construct, 

3.  At  least  two  thirds  of  the  entire  capital  stock  must  be  represented  by  the 
vote  in  favor  of  the  increase  [or|  diminution,  before  it  can  be  effectual. 

4.  A  certificate  must  be  signed  by  the  chairman  and  secretary  of  the  meeting 
and  a  majority  of  the  directors,  showing  a  compliance  with  the  requirements  of 
this  section,  the  amount  to  which  the  capital  stock  has  been  increased  or  dimin- 
ished, the  amount  of  stock  represented  at  the  meeting,  and  the  vote  by  which 
the  object  was  accomplished. 

96 


Title  1,  Chap.  111.] 


CORPORATE  POWERS. 


§§  360,  361 


5.  The  certificate  intist  be  filed  in  the  office  of  the  county  clerk  where  the 
original  articles  of  incorporation  were  filed,  and  a  certified  copy  thereof  in  the 
office  of  the  secretary'-  of  state,  and  thereupon  the  capital  stock  shall  be  so 
increased  or  diminished,  or  the  bonded  indebtedness  may  be  increased  accord- 
ingly. [Amendment,  approved  March  18,  1885;  Statutes  and  Amendments  1885, 
141;  took  effect  immediately.] 


The  amended  section  was  annulled  by  the 
constitution  of  1S70,  it  being  inconsistent  there- 
with: EituiKj  V.  Orov  lie  M.  Co.,  50  Cal.  G49. 
The  amendment  of  18S5,  supra,  was  an  amend- 
ment to  the  section  as  amended  in  1883;  Stats. 
1883,  31. 

"The  preceding  sections  of  this  article  were 
taken  from  Stats,  1850,  347,  sees.  1-0.  See 
also  Stats.  1853,  885  18G1,  85;  18G2,  540,  19'J, 
110;  ISGO,  747;  18G8,  325:"  Commissioners' 
note. 

Inoreasing  or  diminishing  the  capital 
Btock. — By  capital  stock  is  nicant  "the  capi- 
tal of  the  corporation  on  whicii  it  transacts 
business,    whether    such    capital    consists    of 


money,  property,  or  other  valuable  commodi- 
ties." So  defined  in  Martin  v.  ZellThnrh,  3$ 
Cal.  .309,  iti  discussing  the  declaring  of  divi- 
dends from  the  "capital  stock."  The  same  ex- 
pression is  also  used  of  reducing  "the  cajiital 
stock,"  in  the  very  next  clause  of  the  sectioa 
tlieii  before  the  court.  A  corporation  has  no 
implied  power  to  alter  the  amount  of  its  capital 
stock;  it  can  be  done  only  by  virtue  of  an  ex- 
press authorization  in  the  charter:  A'.  Y.  ib  N, 
11.  n.  n.  Co.  V.  Schitylrr,  34  N.  Y.  30;  liaUway,, 
Co.  V.  Allerton,  18  Wall   235. 

See  the  increase  of  the  capital  stock  of  th»  . 
Spring  Valley  Water-works,  held  valid  Ia, 
Sielii  V.  Howard,  4  West  Coast  Rep.  43. 


360.    Acquisition  of  real  property. 

Sec.  3G0.  No  corporation  shall  acquire  or  hold  any  raoi'e  real  property  than» 
may  be  reasonably  necessary  for  the  transaction  of  its  business,  or  the  construc- 
tion of  its  works,  except  as  otherwise  specially  provided.  A  corporation  may- 
acquire  real  property,  as  provided  in  Title  YII.,  Part  III.,  Code  of  Civil'  Pro- 
cedure, when  needed  for  any  of  the  uses  and  purposes  mentioned  in  said  title.. 
[Amendment,  approved  March  30, 1874;  Amendments  1873-4,  208;  took  effect  July,. 
1,  1874.] 


29  Vt.  93;  Parje  v,  Ilciheherfj,  40  Id.  511.  The- 
above  section,  which  imposes  in  the  most  posi- 
tive language  the  restriction  upon  th«  right  t»- 
acquire  realty,  would  seem  to  be  in  contraven- 
tion of  the  general  rule  that  a  limitation  upoa- 
this  implied  ritrht  is  to  be  construed  lilieral!y», 
with  a  view  to  further  t!ie  general  object  for 
which  the  corporation  was  created:  Doimhi'/v. 
Mnrxhall,  23  N.  Y.  302;  Paqe  v.  llfhiehrrQi 
40  Vt.  81;  Od"ll  V.  Oddl,  10  Allen.  1.  A  cor- 
poratiou  has  no  more  right  to  piircli  ise  an. 
equitable  estate  in  land  for  an  unauthorized' 
purpose,  than  to  purchase  a  legal  estate  lui  ler 
similar  circumstances:  Coleman  v.  San  Rafaet 
etc   (Jo.,  49  (;.al.  517. 

Power  of  insurance  corporations  to  ac- 
quire  In nd:  Sei;  soc.  -ll."". 

Power  of  railroad  corporation  toacqalrft 
laud:  See  sec.  4G5, 


Limit  to  acquisition  of  realty. — Where  a 
corporation  act] u ires  more  land  than  the  law 
al.ovvs,  it  acts  in  tlio  exercise  of  a  legitimate 
power  but  to  an  improper  extent;  it  commits  a 
wrong,  but  one  which  can  only  bo  inquired 
int  >  by  the  state,  and  does  not  thereby  lose  its 
rights  as  against  a  trespasser:  Whitman  Minimj 
Co.  V.  Uaker,  l3Nev.  38G;  California  Stat".  Tde- 
graph  Co.  v.  Alta  Telf<r-nph  Co.,  22  Cal.  398; 
Union.  IViiterCo.v,  AlnrphfuFlatFlnminijCo., 
Id.  G20.  It  can  convey  a  good  title  to  land 
whicli  has  been  conveyed  to  it:  Katoma  Water 
and  Minini)  Co.  v.  Clurkhi,  14  Id.  544;  Wid-<h 
v.  Barton,  21  Oliio  St.  28;  Cornell  v.  Colorado 
SjirliKjH  Co.,  100  U.  S.  55;  She  waiter  v.  Pirner, 
55  Mo.  218;  Grant  v.  Henri)  (lay  Coal  Co.,  80 
Pa.  St.  208;  and  it  can  recover  the  considera- 
tion for  land  soil],  which  it  had  acqnirt<l  in 
excess  of  its  authority:  llemlee  v.  Pinkerton, 
14  Allen,  3SI ;  Rutland  d:  B.  R.  Co.  v.  Proctor, 

An  Act  to  authorize  corporations  to  own  and  improve  the  lots  and  houses  in  ichich  their  busineis  i$ 

carried  on. 
[Approved  April  1, 1S7G;  187.1  O.  G53.1 
May  hold  lot,  etc. 

Skction  1.  By  unanimous  consent  of  its  members  or  atockliolder.'?,  any  corporation  existing 
tmdcr  the  laws  of  tins  state  may  acquire  and  Ik)1iI  the  lot,  and  iiouse  in  w!iic!i  its  li'isinesi  ij 
carried  on,  and  may  improve  the  same  to  any  extent  required  for  the  convenient  transaction  of 
its  business. 

Sec.  2.     This  act  shall  take  effect  immediately. 

361.    Com^olidation  of  mining  corporations. 

Sec.  3G1.     It  shall  be  lawful  for  two  or  more  corporations  formed,  or  that  may 

hereafter  be  formed,  under  the  laws  of  this  state,  for  mining  purposes,  which. 

own  or  possess  mining  claims  or  lands  aLljoining  each  other,  or  lying  in  the  sama 

vicinity,  to  consolidate  their  capital  stock,  debts,  i^roporb^*,  asset.^,  and  frau- 

Civ.  CoDK— 7  97 


%  ?62  /corporations:  fDiv.  I,  Part  IV, 

cljises  in  sucli  manner  and  upon  such  terms  as  may  be  agreed  upon  by  the 
respective  boards  of  directors  or  trustees  of  such  companies  so  desiring  to  con- 
SQlidate  their  interests;  but  no  such  consolidation  shall  take  place  without  the 
■written  consent  of  the  stockholders  representing  two  thirds  of  the  capital 
stock  of  each  company;  and  no  such  consolidation  shall  in  any  way  relieve  such 
companies,  or  the  stockholders  thereof,  from  any  and  all  just  liabilities;  and  in 
case  of  such  consolidation,  due  notice  of  the  same  shall  be  given  by  advertising 
for  one  month  in  at  least  one  newspaper  in  the  county  and  state  where  the  said 
mining  property  is  situated,  if  there  be  one  published  therein,  and  also  in  one 
newspaper  published  iu  the  county,  or  city  and  county,  where  the  principal 
place  of  business  of  any  of  said  companies  shall  be.  And  when  the  said  con- 
solidation is  completed,  a  certificate  thereof,  containing  the  manner  and  terms  of 
said  consolidation,  shall  be  tiled  in  the  office  of  the  county  clerk  of  the  county 
in  which  the  original  certificate  of  incorporation  of  any  of  said  companies  shall 
be  filed,  and  a  copy  thereof  shall  be  filed  iu  the  office  of  the  secretary  of  state. 
Such  certificate  shall  be  signed  by  a  majoi-ity  of  each  board  of  trustees  or  direc- 
tors of  the  original  companies;  and  it  shall  be  their  duty  to  call,  Avithin  thirty 
i^dayfi  after  the  filing  of  such  certificate,  and  after  at  least  ten  days'  public  notice, 
;  a. meeting  of  the  stockholders  of  all  of  said  companies  so  consolidated,  to  elect 
a  board  of  trustees  or  directors  for  the  cunsolidated  company  for  the  j^ear  thence 
next  ensuing.  The  said  certificate  shall  also  contain  all  the  requirements  pre- 
scribed by  section  two  hundred  and  ninety  of  said  Civil  Code.     {New  section, 

•  approved  March  20,  1876;  Amendments  1875-G,  75;  look  effect  from  passage.\ 

An  Act  lo  add  anothpr  section  to  the  Civil  Code. 
[Approved  March  20, 1875-fi;  Amendments  1873-0,  75.] 
[Section  1  contains  the  additional  section  301  to  tlie  Civil  Code  above  inserted.] 
Skc.  2.     This  act  shall  apply  to  all  corporations  formed  under  the  laws  of  this  state,  whether 
■formed  under  the  said  Civil  Code,  or  prior  thereto. 

Sec.  3.     This  act  shall  taUe  effect  from  and  after  its  passage. 

•  862.   Amending  arti'Cles  or  certificate  of  incorporation . 

Sec.  3G2.     Any  corporation  may  amend  its  articles  of  association  or  certificate 

of.  incorporation  by  a  majority'  vote  of  its  board  of  directors  or  trustees,  and 

by  a  vote  or  written  assent  of  the  stockholders,  representing  at  least  two  thirds 

-of,  the  capital  stock  of  such  corporation;    and  a  copy  of  the  said  articles  of 

^association  or  certificate  of  incorpoi-ation,  as  thus  amended,  duly  certified  to  be 

•  correct  by  the  president  and  secretaiy  of  the  board  of  directors  or  trustees  of 
:  such  incorporation,  shall  be  filed  in  the  office  or  offices  where  the  original  or 
-certificates  of  incorporation  are  required  by  this  code  to  be  filed;  and  from  the 

time  of  so  filing  such  copy  of  the  amended  articles  of  association  or  certificate 
of  incorporation,  such  corporation  shtill  have  the  same  powers,  and  it  and  the 
stockholders  thereof  shall  thereafter  be  subject  to  the  same  liabilities  as  if  such 

.  amendment  had  been  embraced  in  the  original  articles  or  certificate  of  incoi-po- 
ration;  provided,  that  the  time  of  the  existence  of  such  coi'poration  shall  not 
be  by  such  amendment  extended  beyond  the  time  fixed  in  the  original  articles 

•or  certificate  of  incorporation;  provided  further,  that  such  original  and 
amended  articles  or  certificate  of  incorporation  shall  together  contain  all  the 
matters  and  things  required  under  which  the  original  articles  of  association  or 
certificate  of  incorporation  were  executed  and  filed;  and  provided  further,  that 

:  nothing  herein  contained  shall  be  construed  to  cure  or  amend  any  defect  exist- 
ing in  any  original  certificate  of  incorporation  heretofore  filed,  by  reason  that 
ifiuch  certi£cate  does  not  set  forth  the  matters  required  to  make  the  same  valid 

0& 


Title  I.  Cvav.  HI.]  CORPORATE  POWERS.  S§  377,  378 

as  a  certificate  of  incorporation  at  the  time  of  its  filing;  and  also  provided,  that 
if  the  assent  of  two  tliirds  of  the  stockholders  to  such  amendment  has  not  been 
obtained,  that  a  notice  of  the  intention  to  make  the  amendment  shall  first  be 
advertised  for  thirty  (30)  days  in  some  newspaper  published  in  the  town  or 
county,  or  city  and  county,  in  which  the  principal  place  of  business  of  the 
association  or  corporation  is  located,  before  the  filing  of  the  proposed  amend- 
ment; and  provided  also,  that  nothing  in  this  section  shall  be  construed  to 
authorize  any  corporation  to  diminish  its  capital  stock.  [New  section,  approved 
March  12,  1885;  Statutes  and  Jjnendmenfs  1885,  91.] 

ARTICLE  n. 

RECORDS. 

,' 

3T7.   lipcords,  of  what  and  hoio  kppt. 

Sec.  o77.  All  corporations  for  profit  are  required  to  keep  a  record  of  all  their 
business  transactions;  a  journal  of  all  meetings  of  their  directors,  members,  or 
stockholders,  with  the  time  and  place  of  holding  the  same,  whether  regular  or 
special,  and  if  special,  its  object,  how  authorized,  and  the  notice  thereof  given. 
The  record  must  embrace  every  act  done  or  ordered  to  be  done;  who  were 
present,  and  who  absent;  and,  if  requested  by  any  director,  member,  or  stock- 
holder, the  time  shall  be  noted  when  he  entered  the  meeting  or  obtained  leave 
of  absence  therefrom.  On  a  similar  request,  the  aj'es  and  noes  must  be  taken 
on  any  proposition,  and  a  record  thereof  made.  On  similar  request,  the  protest 
of  any  director,  member,  or  stockholder,  to  any  action  or  proposed  action, 
must  be  entered  in  full — all  such  records  to  be  open  to  the  inspection  of  any 
director,  member,  stockholder,  or  creditor  of  the  corporation. 

Rccorda  as  evidence. — It  is  competent  to  resolutioa  spread  upon  the  minutea  does  not 
show  by  oiiil  testimony  tli.it  part  of  what  trans-  express  correctly  the  proposition  voted  upon, 
pircd  nt  tlic  corporate  meeting  ia  omitted  from  A  vote  of  the  board  of  directors  may  be  p-e- 
thc  record,  and  to  sup|)ly  the  omission:  Hay  sumed  from  its  acts  thougli  there  is  no  proof  of 
View  Ax:<^n  v.  WilltaniK,  .'■)0  Cal.  .3.33;  llarmomf  such  vote  on  the  corporate  rccordo:  Pixley  v. 
Btul'liwf  Asf^'n  v.  Blodfjrtt,  40  Leg.  Intel.  J72  W.  P.  R.  R.  Co.,  3:{  II.  1S.3. 
(Sup.  I't.  Penn.).  And  it  seema  from  Gtlnoii  Publicity  of  stock  and  transfer  book: 
Quailz  Miiiiiiff  Co.  v.  Oil-<ov,  51  Cal.  340,  tliat  vSec  next  BecLiou.and  note;  see  Peu,  Code,  sees, 
parol  evidence  is  admissible   to  show  that   a     505,  5G9. 

378.    Other  records  to  be  kept  by  corporations  fur  profit,  and  others. 

Sec  378.  In  addition  to  the  records  required  to  be  kept  by  the  preceding 
section,  corporations  for  profit  must  keep  a  book,  to  be  known  as  the  "  stock 
and  transfer  book,"  in  which  must  be  kept  a  record  of  all  stock;  the  names 
of  the  stockholders  or  members  alphabetically  arranged;  installments  paid  or 
unpaid;  assessments  levied  and  paid  or  unpaid;  a  statement  of  every  alienation, 
sale,  or  transfer  of  stock  made,  the  date  thereof,  and  by  and  to  whom;  and  all 
such  other  records  as  the  by-laws  prescribe.  Corporations  for  religious  and 
benevolent  purposes  must  provide  in  their  by-laws  for  such  records  to  be  kept 
as  may  be  necessary.  Such  stock  and  transfer  book  must  be  kept  open  to  the 
inspection  of  any  stockholder,  member,  or  creditor. 

Bosks  open  to  inspection. — With  respect  tntion:  People  v.  Throop,  12  Wend.  183.  A 
totheiueinbersof  a  corporation,  the  books  of  the  stockholiler  in  any  joint  stock  corporation  is 
comi).nny  are  public  books;  they  are  common  entitled  during  tiie  usual  hours  of  business,  not 
evidence  which  must  of  necessity  be  kept  in  only  to  inspect  the  books  in  which  transfers  cf 
some  one  Iiand,  and  thru  eacli  individual  pos-  stocks  are  registered,  and  the  books  containing 
eessing  a  legal  interest  in  them  has  a  right  to  the  names  of  the  Btockholdcrs,  but  also  to  take 
inspect,  and  to  use  tiiem  as  evidence  of  his  a  copy  or  menu^ran.lum  of  tlic  names  of  the 
rights.  Th«  board  of  directors  of  a  bank  have  Btockh<>lder8:  Broinrer  v.  i^ofkral,  10  Barb, 
no  authority  to  pass  a  resolution  excluding  one  21G;  aliirmed,  i  Seld.  5G2;  Angell  &  Ames  on 
of    the   members   of   the   institution    from   an     Corp.,  sec.  G8I. 

inspeution  of  its  books,  although  they  l)elieve         Sec  also  previous  section  as  to  publicity  of 
him  to  be  hostile  to  the  interests  of  the  iusti-    miuutea  of  corporate  proceedinga. 

99 


5  382-388  corporations:  [Dit.  I,  Part  IV, 

ARTICLE  III. 

EXAMINATION  OF  CORPORATIONS,  ETC. 

882.    Examination  into  affairs  of  corporation  by  Htatc  officer!^. 

Sec.  382.  The  attorney -general  or  district  attorney,  whenever  and  as  often 
as  required  by  the  governor,  must  examine  into  the  affairs  and  condition  of 
any  corporation  in  this  state,  and  report  such  examination,  in  writing,  together 
•with  a  detailed  statement  of  facts,  to  the  governor,  who  must  lay  the  same 
before  the  legislature;  and  for  that  purpose  the  attorney-general  or  district 
attorney  may  administer  all  necessary  oaths  to  the  directors  and  officers  of  any 
corporation,  and  may  examine  them  on  oath  in  i-elation  to  the  affairs  and  con- 
dition thereof,  and  may  examine  the  books,  papers,  and  documents  belonging  to 
such  corporation,  or  appertaining  to  its  affairs  and  condition. 

333.   Examination  made  by  the  leginlafure. 

Sec  383.  The  legislature,  or  either  branch  thei'eof,  may  examine  into  the 
affairs  and  condition  of  any  corporation  in  this  state  at  all  times;  and  for  that 
purpose,  any  committee  appointed  by  the  legislature,  or  either  branch  thereof, 
may  administer  all  necessary  oaths  to  the  directors,  officers,  and  stockholders 
of  such  corporation,  and  may  examine  them  on  oath  in  relation  to  the  affairs 
and  condition  thereof;  and  may  examine  the  safes,  books,  papers,  and  docu- 
ments belonging  to  such  corporation,  or  pertaining  to  its  affairs  and  condition, 
and  compel  the  production  of  all  keys,  books,  papers,  and  documents  by  sum- 
mary process,  to  be  issued  on  application  to  any  court  of  record  or  any  judga 
thereof,  under  such  rules  and  regulations  as  the  court  may  prescribe. 

384.    Chapter  and  article  may  be  repealed. 

Sec  38i.  The  legislature  may  at  any  time  amend  or  repeal  this  part,  or  any 
title,  chapter,  article,  or  section  thereof,  and  dissolve  all  corporations  created 
thereunder;  but  such  amendment  or  I'epeal  does  not,  nor  does  the  dissolution 
of  any  such  corporation,  take  away  or  impair  any  remedy  given  against  any 
such  corporation,  its  stockholders  or  officers,  for  any  liability  which  has  been 
previously'  incurred. 

Amending  or  repealing  charter  of  corpo-  former  constitution,  and  say:  "Section  384 
rations. — In  the  constitution  of  Califuriiia,  in  was  inserted  iu  this  code  out  of  an  abundance 
force  when  this  code  was  adopted,  was  the  fol-  of  caution,  and  not  because  it  was  dc  .lued 
lowin,!T  sectio":  "  Corporations  may  be  formed  necessary,  for  there  can  be  but  little  doubt 
under  general  laws,  but  shall  not  be  created  by  that  the  constitutional  provision  rjuoted  at  the 
epecial  ret  except  for  municipal  purposes.  All  beatl  of  this  note  enters  into  and  beco  iies  a 
general  laws  and  special  acts  passed  pursuant  part  of  the  contract,  thereby  reserviu'^  to  the 
to  tlds  section  may  be  altered  from  time  to  legislature  the  ri^ht  to  re[)eal,  impair,  or  alter 
time  or  reperded:"  Art.  4,  sec.  .31.  The  con-  any  law  relative  to  the  formation  of  corpora- 
stitution  of  1879.  art.  12,  sec.  1,  preserves  this  tions,  even  tliou^h  the  result  reached  would 
section  in  the  following  language:  "Corpora-  be  tlie  dissolution  of  every  corporation  organ- 
tions  may  be  formed  under  general  laws,  but  ized  within  tlie  state."  For  a  concise  state- 
shall  not  be  created  by  special  act.  All  liws  ment  of  the  principles  connected  with  the 
now  in  force  in  this  state  concerning  corpora-  constitutional  reservation  of  power  to  alter, 
tions,  and  all  laws  that  may  be  hereafter  amend,  or  rep-'al  the  contract  with  a  corpora- 
pass(!d  pursuant  to  this  section,  may  bi  altered  tion,  and  a  collection  of  the  recent  a<ljudioa- 
froni  time  to  time  or  repealed."  The  code  ti.)n3  upon  tliis  question,  consult  Morawetz  on 
commissioners    quote    the    section    from    the    Corp. ,  sees.  4G3  et  seq. 

ARTICLE  IV. 

JUDGMENT  AGAINST  AND  SALE  OF  CORPORATE  PROPERTY. 

388.   Franchise  may  be  sold  under  execution. 

Sec  388.  For  the  satisfaction  of  any  judgment  against  a  corporation  author- 
ized to  receive  tolls,  its  franchise  and  all  the  rights  and  privileges  thereof  may 
be  levied  upon  and  sold  under  execution,  in  the  same  manner  and  with  like 

100 


Title  I,  Cuap.  III.]  CORPORATE  POWERS.  g§  389-392 

effect  as  any  other  property.     [Amendment,  approved  March  30,  1874;  Amend* 
menla  1873-4,  208;  took  effect  July  1,  1874.] 

The  original  section,  instead  of  "author-  Thomnx  v.  Armstrong,  7  Id.  2SG;  Randolph  v. 

ized  to  receive  tolls,"  liad  the  words  "origan-  Lnrni'd,  '21  N.  J.  Eq.  5.")7;  Sfeimrt  v.  Jones,  40 

ized  for  jTotit."  Mo.  140;   Yoiui'iinan  v.  Ihillroad  Co.,  63  Pa. 

Levymg    execution    upon     franchise. —  St.  278;  and  when  that  permission  is  granted, 

"By  section  3SS  the  p;overumeut  consents  that  the  mode  <>f  transfer  pointed  out  must  be  fol- 

franchise.s  may  be  levied  upon  and  sold  under  lowed:    IVooil  v.  Triickfe.   T.  Co.,  24  Cal.  474; 

cxecutioi),  in  like  manner  as  otiier  property  is  Muiirof   v.    Thomas,    5   Id.    470;     Thomas   v. 

levied  upon  and  sold:"    Code  coinmissiontTs'  Annsfroaj,  7  Id.  2S6;  Utandjord  Bdiikw  Fer- 

note,  appended  to  the  original  section,  wliicli  ris,  17  Coun.  2'>0;  StUe  Bank  v.  Tutt,  44  Mo. 

extended  the  power  to  levy  execution  to  the  3G7.     The  qlle^•tiuu  as   to   the   validity    of   a 

Batisfr.ction  of  "any  judgment  against  a  cor-  transfer  of    a   corporation's   franclii-se   is    one 

poration  organized  lor  pTolit."  which  concerns  the  pulilic  alone:  0.  li.  R.  Co. 

Franchises   are  special  piivileges  conferred  v.  O.  B.  J:  F.  V.  R.  R.  Co.,  4j  Cal.  3G.3.     The 

by  government  upon  individuals,  and  which  do  corporation  is  a  necessary  party  defemlant  to 

not  belong  to  the  citizens  of  the  country  gen-  an  action  which  seeks  to  enforce  its  judgment 

cral!}'  of   common  riglit:  Da)ik  of  AiKjuxla  v.  by  .sale  of   the  corporate  franchise:  Bracia  v. 

Eaiie,  \'.\   I'et.  57-3;  2  Waslib.  on   Ileal  Prop.  Ni'l'<on,  Id.  42.  107. 

207;  A::gell  &  Ames  on  Corp.,  sec.  4;  S.   V.  IT.         That  franchises  are  property,  entitled  to  pro- 

\V.  v.  Scholtler,    11    Pac.  C.   L.  J.   4:50      The  tectioii  as  such,  and  subject  to  corresponding 

franciiis'  s    of    a     corporation    are    privdcges  burdens,  see  the  exhaustive  opinion  of  Judge 

granted  and  iield  in  personal  trust,  and  cannot  Thornton  in  discussing  tiie  riglit  to  tax  fran- 

be  tiansfcrred  by  forced  sale  or  by  voluntary  c'lises  of   corporations,   in  .'?.  V.  W.  W.  Co.  v. 

assigiinu'nt,  except  by    permission  of  the  gov-  ScholUer,  II  Pac.  C.  L.  J.  430. 
trnmeut:    Wood  v.  Ti-uckce  T.  Co.,  24  Cal.  474; 

389.  Purchaser  to  transact  business  of  corporation. 

Sec.  389.  The  purchaser  at  the  sale  must  receive  a  certificate  of  purchase  of 
the  franchise,  and  be  immediately  let  into  the  possession  of  all  jiroperty  neces- 
sary for  the  exercise  of  I  he  powers  and  the  receipt  of  the  proceeds  thei'eof,  and 
must  thereafter  conduct  the  business  of  such  corporation,  with  all  its  powers 
und  privileges,  and  subject  to  all  its  liabilities,  until  the  redemption  of  the  same, 
as  hereinafter  provided. 

390.  Purchaser  may  recover  penalties,  etc. 

Sec.  390.  The  purchaser,  or  his  assignee,  is  entitled  to  recover  any  penalties 
imposed  by  law  and  recoverable  by  the  corporation  for  an  injury  to  the  franchise 
or  properly  thereof,  or  for  any  damages,  or  other  cause,  occumng  daring  the 
time  he  holds  the  same,  and  may  use  the  name  of  the  corporation  for  the  pur- 
pose of  any  action  necessary  to  recover  the  same.  A  recovery  for  damages  or 
any  penalties  thus  had  is  a  bar  to  any  subsequent  action  by  or  on  behalf  of  the 
corporation  for  the  same. 

"  I'or  this  change  in  the  law  it  is  deemed    and  Wood  v.  Tnickfe  Turnpike  Co.,  24  Id.  487:" 
Buliicient  SiUiply  to  refer  to  Miinroe  v.  T/iomax,     Commissioaera'  note. 
5  Cal.  470;    Thomas  v.  Arm.slron</,  7  Id.  280; 

391.  Corporation  to  retain,  poiuers  after  sale. 

Sec,  391.  The  corporation  whose  franchise  is  sold,  as  in  this  article  provided, 
ii)  all  other  respects  retains  the  same  powers,  is  bound  to  the  discharge  of  tlio 
Bame  duties,  and  is  liable  to  the  same  penalties  and  forfeitures,  as  before  such 

Bale. 

392.  Rfdemption  of  franchise. 

Sec  392.  The  corporation  may,  at  any  time  within  one  year  after  such  sale, 
redeem  the  franchise,  by  paying  or  tendering  to  the  purchaser  thereof  the  sum 
paid  thert-for,  with  ten  per  cent  interest  thereon,  but  without  any  allowance  for 
the  toll  which  he  ma}'  in  the  mean  time  have  received ;  and  upon  such  payment 
or  tender  the  franchise  and  all  the  rights  and  privileges  thereof  revert  and 
belong  to  the  corporation,  as  if  no  such  sale  had  been  made. 

101 


§§303-403  COnrORATIONS.  [Dnr.  I,  Paut  IV, 

893.   Sal(^,  under  execution,  where. 

Sec.  393.  The  sale  of  any  franchise  under  execution  must  be  made  in  the 
county  in  which  the  coi-poration  has  its  principal  place  of  business,  or  in  which 
the  property,  or  some  jDortiou  thereof,  upon  which  the  taxes  are  paid,  is  situ- 
ated. [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  209;  took 
effi<vt  July  1,  1874.  J 

CHAPTETl  rV. 

EXTENSION  AND  DISSOLUTION  OF  CORPORATIONS. 

389.    Proceedir}g>i  to  disincorporate. 

Sec.  399.     The  dissolution  of  corporations  is  provided  for: 

1.  If  involuntary— in  Chapter  V.  of  Title  X.,Part  11.,  of  the  Code  of  Civil 
Procedure; 

2.  If  voluntary— in  Title  VI.,  Part  IIL,  of  the  Code  of  Civil  Procedure. 
See  Code  Civ.  Proc,  sees.  802,  227. 

400.  On  dissolution,  directors  to  be  trustees  for  creditors. 

Sec.  400.  Unless  other  persons  are  appointed  by  the  court,  the  directors  or 
managers  of  the  affiiirs  of  such  corporation  at  the  time  of  its  dissolution  are 
trustees  of  the  creditors  and  stockholders  or  members  of  the  corporation  dis- 
solved, and  have  full  power  to  settle  the  affairs  of  the  corporation. 

401.  Mmj  extend  term  of  existence. 

Sec.  401.  Every  coi-poration  foi-med  for  a  period  less  than  fifty  years  may,  at 
any  time  prior  to  the  expiration  of  the  term  of  its  corporate  existence,  extend 
such  term  to  a  period  not  exceeding  fifty  years  from  its  formation.  Such  exten- 
sion may  be  made  at  an}'  meeting  of  the  stockholdei's  or  members,  called  by  the 
directors  expressly  for  considering  the  subject,  if  voted  by  stockholders  repre- 
senting two  thirds  of  the  capital  stock;  or  by  two  thirds  of  the  members;  or 
may  be  made  upon  the  written  assent  of  that  number  of  stockholders  or  mem- 
bers. A  certificate  of  the  proceedings  of  the  meeting  upon  such  vote,  or  upon 
such  assent,  shall  be  signed  by  the  chairman  and  secretary  of  the  meeting  and 
a  majority  of  the  directors,  and  be  filed  in  the  office  of  the  county  clerk,  where 
the  original  articles  of  incoi*poration  were  filed,  and  a  certified  copy  thereof  in 
the  ofuce  of  the  secretary'  of  state,  and  thereupon  the  term  of  the  corporation 
shall  be  extended  for  the  spscifiel  period.  [Amendmeid,  approved  March  30, 
1874;  Amendments  1873-4,  209;  took  rfft^ct  July  1,  1874.] 

402.  Sow  corporations  may  cmfinue  Iheir  existence. 

Section  402  was  repealed  by  act  approved  March  30,  1874;  Amendmeuta  1873-4,  209;  took 
effect  July  1,  1874. 

403.  Title  I.  to  apply  to  all  corporations,  with  certain  exceptions. 

Sec.  403.  The  provisions  of  this  title  are  applicable  to  every  corporation, 
unless  such  corporation  is  excepted  from  its  operation,  or  unless  a  special  pro- 
vision is  made  in  relation  thereto,  inconsistent  with  some  provision  in  this  title, 
in  which  case  the  special  pi-ovision  prevails. 

An  Act  ill  r<'hition  to  forei'jn  corporations. 
[Approved  April  1,  137J;  1871-2,  823.1 
Foreifjn  rorporafion-t  to  rf^sJ./wrt'^  }>ersoii  npoii  ivhoin  procss  may  be  nerved. 

Section*  1.  Every  corporation  heretofore  created  by  the  l.iws  of  any  other  state  and  doing 
budiuess  in  this  state  shr.ll,  wiiliin  one  Iran  Ired  an  1  Iwenty  days  after  the  passage  of  tliis  act, 
and  any  corporatioji  hereafter  createil  an  I  doing  businiss  i.i  this  state,  within  sixty  days  from 
the  time  of  commencing  to  do  basincss  ia  tlii-i  state,  ilesi  ;nate  some  persoa  residing  in  t'ae  county 
in  which  the  principal  place  of  business  of  said  corporation  in  this  state  is,  upon  whom  process 

102 


Title  II,  Chap.  I.]  GENERAL  PROVISIONS,  §§  414,  415 

Issned  by  authority  of  or  under  any  law  of  this  state  may  be  served,  and  within  the  time  aford. 
said  shall  lile  such  designation  in  the  office  of  the  secretary  of  state;  and  a  copy  of  such  desig- 
nation, duly  certified  by  saitl  officer,  sliall  be  evidence  of  such  appointment;  and  it  sliall  be  law- 
ful to  serve  on  such  person  so  designated  any  process  issued  as  al'oresaiil.  Such  service  shall  be 
made  on  sucli  person  in  such  manner  as  shall  be  prescribed  in  case  of  service  required  to  be  maJo 
on  foreign  coi  pi  "rations,  and  such  service  shall  be  deemed  to  be  a  valid  service  thereof. 
Pewdtii  for  failure  to  designate. 

Sec.  2.     Every  corporation  created  by  the  laws  of  any  other  state  which  shall  fail  to  comply 
wiih  tlie  provisions  of  the  first  section  of  tliij  statute  shall  be  denied  the  benefit  of  the  statuCea 
of  tliis  state  limiting  the  time  for  the  commencement  of  civil  actions. 
PrivileiiPs  on  cowpliance. 

Sto.  3.  Every  corporation  created  by  the  laws  of  any  other  state  which  shall  comply  with 
the  provisions  of  the  first  section  of  this  statute  shall  be  entitled  to  the  benefit  of  the  statutes  of 
this  state  limiting  the  time  for  the  commencement  of  civil  actions. 


TITLE  II. 
INSURANCE  COrtPOUATIONS. 

Chapteb  I.     General  Provisions 414 

II.     Fire  and  Marine  Insurance  Corporations 424 

III.     Mutual  Life,  Health,  and  Accident  Insurance  Corporations.   437 

CHAPTEr.  I. 

GENERAL  PROVISIONS. 

414.  SiibsnTrijitions  to  capital  stock  opened,  and  how  coUrdrd. 

Bec.  414.  After  the  secretary  of  state  issues  the  certificate  of  incorporation, 
as  provided  in  Article  I.,  Chapter  I.,  Title  I.,  of  this  part,  the  directors  named 
in  the  articles  of  incorporation  must  proceed  in  the  mauncr  specified,  or  in  their 
by-laws,  or  if  none,  then  in  such  manner  as  they  may  by  order  adopt,  to  opou 
books  of  subscription  to  the  capital  stock  then  unsubscribed,  and  to  secure  sub- 
scriptions to  the  full  amount  of  the  fixed  capital;  to  levy  assessments  and 
installments  thereon,  and  to  collect  the  same,  as  in  Chapter  II.  of  Title  I. 
provided. 

Insurance  in  generail:  See  po!<t,  sees.  2527-27G6. 

415.  rurchaae  and  conveyance  of  real  et^tate. 

Sec  415.  No  insurance  corporation  must  pui'cliase,  hold,  or  convey  real 
estate,  except  as  hereinafter  set  forth,  to  wit: 

1.  Such  as  is  requisite  for  its  accommodation  in  the  convenient  transaction  of 
its  business,  not  exceeding  in  value  one  hundred  and  fifty  thousand  dollars; 

2.  Such  as  is  conveyed  to  it,  or  to  any  person  for  it,  by  \iixy  of  mort,'ja^e  or 
in  trust,  or  otherwise,  to  secure  or  j^rovide  for  the  payment  of  loans  previously 
contracted,  or  for  moneys  due; 

3.  Such  as  is  purchased  at  sales  upon  deeds  of  trust  or  judgments  obtained 
or  made  for  such  loans  or  debts; 

4  Such  as  is  conveyed  to  it  in  satisfaction  of  debts  previously  contracted  ilk 
the  course  of  its  dealings. 

All  such  real  estate  so  acquired,  which  is  not  requisite  for  the  accomraodatioa.. 
of  such  corporation  in  the  transaction  of  its  business,  must  be  sold  and  dis- 
posed of  within  five  years  after  such  corporation  acquired  title  to  the  same.  Nb- 
such  real  estate  must  be  held  for  a  longer  period  than  five  years,  unless  the- 
corporation  first  procures  a  certificate  from  the  insurance  commissioner  that  the; 
interest  of  the  corporation  will  suffer  materially  by  a  forced  sale  of  such  reali 

103 


K41G-419  COPvPOIlATIONS.  i[Div.  I,  Part  IV, 

estate,  in  ■which  event  the  time  for  the  sale  may  be  extended  to  such  time  as  the 
insurance  commissioner  directs  in  the  certificate. 

416.  Policies,  how  iKRUcd  and  by  lohom  signed. 

Si:c.  410.  All  policies  made  by  insui'auce  corporations  must  ba  subscribed 
by  tlio  president  or  vice-president,  or  in  case  of  the  death,  absence,  or  disability 
of  those  o£Scers,  by  any  two  of  the  directors,  and  countersigned  by  the  secretary 
of  the  corporation.  All  such  policies  are  as  binding  and  obligatory  upon  the 
corporation  as  if  executed  over  the  corporate  seal. 

Contract  of  insurance. — This  section  does  ami  are  not  within  the  statute  of  frauds: 
not  rconire  all  contracts  of  insurance  to  be  cvi-  Mobile  Marine  lii^.  Co.  v.  MrMiHnn,  ."'l  Ala. 
dinceil  by  an  instrument  in  writinj.'-,  signed  in  711;  Firsl.  Dayli-<1  Chu)\h\.  Brooliiin,  19  N.  Y. 
the  manner  proposed,  but  simply  provided  for  30.1;  Norfh-icc::t  liin.  Co.  v.  jEl.;a  I  ,s.  (,'o., 
tile  execution  of  policies  of  insurance  without  20  Wis.  78.  But  when  tlie  act  of  incorpora- 
mentioniiig  the  contract  generally.  As  the  tion  or  the  general  law  proliibits  the  making  of 
code  in  this  instance  expressly  points  out  the  contracts  ot  insurance  by  parol,  or  recjuirea 
mode  of  executing  a  policy  as  a  contract^  it  theni  to  be  made  in  a  certain  manner,  parol 
must  be  strictly  complied  with  in  order  to  l)ind  contracts  would  be  void:  J.'nrniiKj  v.  Ci'ti-d 
the  company.  If  a  person  accept  a  policy  not  ^titett  his.  C  \,  47  Mo.  4"25;  Trdinw  Holland 
executed  in  tlie  manner  prescribed,  it  would  Purchase  t/ix.  Co.,  62  N.  Y.  59S;  Sim'>:loi  v. 
follow  he  could  not  recover  on  the  policy  as  (he  Liverpool  etc,  Ins,  Co.,  51  Oa.  76;  Crui/han  v. 
contract*  When  an  act  of  incorporation  pre-  Underwriters'  Afjency,  53  Id.  100;  see  tlio  note 
Bcribos  the  mode  of  contracting,  that  mode  in  Wood  on  Ins.,  sec.  4.  The  subject  ia  thu3 
must  be  observed  or  th©  instrument  does  not  succinctly  summarized  in  May  on  Ins.,  2(1 
create  a  contract:  Angell  &  Amea  on  CJorp.,  cd.,  sec.  23:  '•The  distinction  I.et'.veen  a  con- 
Bee.  291;  Head  v.  Providence  Ins.  Co.,  2  tract  to  insure  or  to  issue  ;i  policy  of  insuraiice 
Crancli,  127;  Dawes  v.  North  Uiver  Ins.  Co.,  7  and  the  policy  itself  is  obvious,  and  constantly 
Cow.  4G2.  A  contract  of  insurance  or  an  recognized  by  tlie  courts.  The  former  may  be 
agreement  to  insure  need  not  necessarily  be  in  by  parol  or  in  any  form.  The  latter  m;\y  be 
writing,  as  at  common  law;  merely  verl,al  eon-  regulated  and  controlled  liy  statutes  or  by  the 
tracts  of  this  character  are  valid  and  binding,     bydaws  of  the  company  issuing  it." 

417.  Dividends,  of  what,  and  when  declared. 

Sec.  417.  The  directors  of  every  insurance  coi^poration,  at  such  times  as 
their  by-laws  provide,  must  make,  declare,  and  pay  to  the  stockholders  dividends 
'of  so  much  of  the  net  profits  of  the  corporate  business  and  interest  on  capital 
invested  as  to  them  appears  advisable;  but  the  moneys  received  and  notes  taken 
for  premium  on  risks  which  are  undetermined  and  outstanding  at  the  time  of 
making  the  dividend  must  not  be  treated  as  profits,  nor  divided,  except  as  pro- 
vided in  Chapter  II.  of  this  title. 

Declaring  dividends:  See  aide,  sec.  309,  and  note. 

418.  Directors  liable  for  loss  on  innurance  in  certain  cases. 

Seo.  418.  If  any  insurance  corporation  is  under  liabilities  for  losses  to  an 
amount  equal  to  its  capital  stock,  and  the  president  or  dii'ectors,  after  know- 
ing the  same,  make  any  new  or  further  insurance,  the  estates  of  all  who  make 
such  insurance,  or  assent  thereto,  are  severally  and  jointly  liable  for  the  amount 
of  any  loss  which  takes  place  under  such  insurance. 

419.  Certain  insurance  companies  to  have  a  capital  slock  of  at  least  two  hundred 
thousand  dollars. 

Sec.  419.  Every  company,  corporation,  or  association  hereafter  formed  or 
■.organized  under  the  laws  of  this  state,  for  the  transaction  of  business  in  fire, 

marine,  inland  navigation,  or  life  insurance,  must  have  a  subscribed  capital 
^  stock  equal  to  at  least  two  hundred  thousand  dollars,  twenty-five  per  cent  of 

which  must  be  paid  in  previous  to  the  issuance  of  any  policy,  and  the  residue 
•within  twelve  months  from  the  diiy  of  filing  the  certificate  of  iuconx)raLion. 

No  person,  corporation,  or  association,  organized  or  formed  under  tlic  laws  of 
:  any  other  state  or  country  as  a  stock  company,  must  transact  any  such  iusur- 
jvftnce  business  in  this  state,  unless  such  person,  corporation,  or  association  haa 

104 


rtTLK  tl,  i'ttAP.  II.]    FltlE  AND  MAraNE  INSURANCE  COMPANIES.  §§  420-425 

a  paid-up  capital  stock  equal  to  at  least  two  liundred  thousand  dollars  in  avail- 
able casli  assets,  over  and  above  all  liabilities  for  losses  reported,  expenses, 
taxes,  and  reinsurance  of  all  outstanding^  risks,  as  provided  in  section  six  hun- 
dred and  two  of  the  Political  Code  of  this  state.  Nor  must  any  person,  cor- 
poration, or  association,  oi'ganized  or  formed  under  the  laws  of  any  other  state 
or  country  as  a  mutual  insurance  company,  transact  any  such  insurance  busi- 
ness in  this  state,  unless  such  person,  corporation,  or  association  possesses 
available  cash  assets  equal  to  at  least  two  hundred  thousand  dollars  over  and 
above  all  liabilities  for  losses  reported,  expenses,  taxes,  and  reinsurance  of  all 
outstandinrr  risks,  as  provided  in  said  section  six  hundi'ed  and  two  of  the 
Political  Code  of  this  state.  [Amendmenl,  approved  April  1,  1878;  Amendmenfs 
1877-8,  80;  took  effect  from  pcLnHage.] 

Capital  stock. — Underthis  section  asit stood     have  a  suhscril)cd  capital  stock  of  one  liundred 
in  1874  insurance  cor[joratiou3  were  required  to     thousand  dollars:  People  v.  Flint,  G4  Cal.  49. 

420.    Certain  insurance  companies  to  have  capital  stock  of  at  least  one  hundred 

thousand  dollars. 

Sec.  420.  Every  company,  corporation,  or  association  hereafter  formed  or 
orpfanized  under  the  laws  of  this  state,  for  the  transaction  of  business  in  any 
kind  of  insurance  not  enumerated  in  section  four  hundred  and  nineteen  of  the 
Civil  Code,  must  have  a  subscribed  capital  stock  equal  to  at  least  one  hundred 
thousand  dollars,  which  must  be  paid  in  at  the  times  and  in  the  manner  pre- 
Bcribed  for  the  payment  of  the  capital  stock  of  a  corporation  organized  under 
section  four  hundred  and  nineteen  of  said  Civil  Code.  No  company,  coi'pora- 
tion,  or  association,  formed  or  organized  under  the  laws  of  any  other  state  or 
country  as  a  stock  company,  must  transact  any  such  insurance  business  in  this 
state  without  a  paid-u[)  capital  stock  of  not  less  than  one  hundred  thousand 
dollars,  in  available  cash  assets,  over  and  above  all  liabilities  for  losses  reported, 
expenses,  taxes,  and  reinsurance  of  all  outstanding  I'isks,  as  provided  in  section 
six  hundred  and  two  of  the  Political  Code  of  this  state.  Nor  must  any  com- 
pany, corporation,  or  association,  formed  or  organized  under  the  laws  of  any 
other  state  or  countiy  as  a  mutual  insurance  company,  transact  any  such  insur- 
ance business  in  this  state,  unless  such  company,  corporation,  or  association 
possesses  available  cash  assets  equal  to  at  laast  one  hundred  thousand  dollars 
over  and  above  all  liabilities  for  losses  reported,  expenses,  taxes,  reinsurance  of 
all  outstanding  risks,  as  provided  in  said  section  six  hundi'ed  and  two  of  the 
Political  Code  of  this  state.  [New  section,  approved  April  1,  1878;  Amendments 
1877-8,  80;  took  effect  from  passage.] 


CHAPTER  II. 
FIRE  AND  MARINE  INSURANCE  CORPORATIONS, 

424.  Payment  ofsubstrriptionn — Capltil  to  be  all  paid  in  twelve  monthly. 

Sec  424.  The  entire  capital  stock  of  every  fire  or  marine  insurance  corpora- 
tion liiust  be  paid  up  in  cash  within  twelve  months  from  the  filing  of  the  articles 
of  incorporation,  and  no  policy  vi  insurance  must  be  issued  or  ridk  tiiken  until 
twenty-five  i)er  cent  of  the  whole  capital  stock  is  paid  up. 

r^ro  h2sur--inoe:  See  jiost,  Sfcs.  2732  et  acq. 

Ma:i-i3  inauranoe:  See  post,  sees.  2GJ3  et  scq. 

425.  Ci-rlificnle  of  capital  sto(-h  paid  up  to  be  fled,  and  when. 

Sec.  425.  The  president  and  a  majority  of  the  directors  must,  within  thirty 
days  after  the  payment  of  the  twenty-five  jjcr  cent  of  the  capital  stock,  and 

105 


§§  42G-429  CORPORATIONS.  [Div.  I,  Part  IV, 

also  within  thirty  days  aiter  the  payment  of  the  last  installment  or  assessment 
of  the  capital  stock  limited  and  fixed,  prepare,  subscribe,  and  swear  to  a  cer- 
tificate settiuf^  forth  the  amount  of  the  fixed  capital  and  the  amount  thereof  paid 
np  at  the  times  respectively  in  this  section  named,  and  file  the  same  in  the 
office  of  the  county  clerk  of  the  county  where  the  principal  place  of  business 
of  the  corporation  is  located,  and  a  duplicate  thereof,  similarly  executed,  with 
the  insurance  commissioner. 

426.    Propi^rty  which  may  be  inaured. 

Sec  42G.  Every  corporation  formed  for  fire  or  marine  insurance,  or  both, 
}nay  make  insurance  on  all  insurable  interests  within  the  scope  of  its  articles  of 
incorporation,  and  may  cause  itself  to  be  reinsured. 

Insurable  intarest  defined:  See  sec.  2j46,  j'O'^t. 

42.1.    Funds  may  be  invested,  how. 

Sec.  427.  Corporations  hereafter  organized  under  the  laws  of  this  state,  for 
the  transaction  of  business  in  any  kind  of  insurance,  may  invest  their  capital 
and  accumulations  in  the  following-named  securities: 

1.  In  the  purchase  of  or  loans  upon  interest-bearing  bonds  of  the  United 
States  government; 

2.  In  the  purchase  of  or  loans  upon  interest-bearing  bonds  of  any  of  the 
states  of  the  United  States  not  in  default  for  interest  on  such  bonds; 

3.  In  the  purchase  of  or  loans  upon  interest-bearing  bonds  of  any  of  the 
counties  and  incorporated  cities  and  towns  of  the  state  of  California  not  in 
default  for  interest  on  such  bonds; 

4.  In  loans  upon  unincumbered  real  property,  or  upon  merchandise  in 
warehouse,  worth  at  least  one  hundred  per  cent  more  than  the  amount  loaned. 
But  no  investment  in  the  securities  named  in  subdivisions  one,  two,  and  three, 
of  this  section,  must  be  made  in  amount  exceeding  the  par  value  of  such 
securities,  nor  exceeding  their  market  value.  [Amendmenly  approved  April  1, 
1878;  Amendments  1877-8,  81;  toot  effect  from  j)assage.\ 

428.  Risk,  limitation  of. 

Sec.  428.  Fire  and  marine  insurance  corporations  must  never  take,  on  any 
one  risk,  whether  it  is  a  marine  insurance  or  an  insurance  against  fire,  a  sum 
exceeding  one  tenth  part  of  their  capital  actually  paid  in  and  intact  at  the  time 
of  taking  such  risk,  without  reinsuring  the  excess  above  one  tenth.  \  Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  210;  took  ejfecl  July  1, 
1874.] 

Limitation  of  amount  of  insurance. — If  a  29  Pa.  St.  31.     The  violation  of  the  charter  is 

corporati.iii  vuhiutarily  and  without  fraud  or  a  matter  for  the  company  to  settle  \vit!i   the 

nnsrepresentation  insure  for  a  sum  bayoiid  that  power  tliat  gave  them   the  c'.iartcr,   but   they 

allowed  by  law,  the  policy  is  not  tli^rcby  ren-  cannot  set  nj  their  own  misconduct  i.i  dt'fense 

(lered  void:    Wil'ams  v.  A^  E.  Mutual  F.  Ins.  agai.ist  tlio  claim  of  the  insured  for  iud.'mu  ty, 

Co.,  31  Mo.  211);  F.I  Her  y.  lionton  Mat.  F.  I:i>i.  as  by  showing  that  in  insuring  to  the  stl[iulate(i 

Co.,  4  Mi;t.  203;  Iloxie  v.  ProDclencc  Ins.  C >.,  amount  they  iiave  done  wliat  they  ought  not 

6 R.  I.  517;  Cumberland  Valley  Lis,  Co.  v.  Schfll,  to  have  done:  See  cases  supra. 

429.  Amounts  to  be  reserved  bffnrt  makiny  dividends. 

Sec.  429.  No  corporation,  formed  hei-aafter  under  the  laws  of  this  state  and 
transacting  fire,  marine,  inland  navigation  insurance  business,  or  insurance 
provided  for  by  section  f c  ur  hundred  and  twenty  of  this  code,  must  ujake  any 
dividends,  except  from  profits  remaining  on  hand  after  retaining  unimpaired — 

1.  The  entire  subscribed  capital  stock; 

2.  All  the  premiums  received  or  receivable  on  outstanding  marine  or  inland 
risks,  except  marine  time  risks; 

106 


liTLE  II,  CiiAP.  II.]    FIRE  AXD  MARINi:  INSURAXCE  COMPANIZS.  §  430 

3.  A  fund  equal  to  one  half  of  the  amount  of  all  premiums  on  all  other  risks 
not  terminated  at  the  time  of  makiu;;*'  such  dividend; 

4.  A  sum  sufficient  to  pay  all  losses  reported,  or  in  course  of  settlement,  and 

all  liabilities  for  expenses  and  taxes.     \Am<m(linenl,  approved  April  1,  1878; 

Ainpiidmcid!^  1877-8,  81;  took  effect  from  paHsagc] 

Declaring  dividends  generally:  See  a;iv,  to  tlecl.iring  dividends  by  insurance  companies 
sec.  30y,  and  note.     See  also  ante,  sec.  417,  as     generally. 

430.    Amoiirds  to  be  reserved  by  companies  with  less  than  two  hundred  thousand 

dollars  cnpital. 

Sec.  430.  No  fire  or  marine  insurance  coi'poration,  with  a  subscribed  capital 
of  less  than  two  hundred  thousand  dollars,  must  declare  any  dividends,  except 
from  profits  remaining  on  hand  after  reserving: 

1.  A  sum  necessary  to  form,  with  the  subscribed  capital  stock,  the  aggregate 
Bum  of  tv;o  hundred  thousand  dollars; 

2.  All  the  premiums  received  or  receivable  on  outstanding  marine  or  inland 
risks,  except  marine  time  risks; 

3.  A  fund  equal  to  one  half  the  amount  of  all  premiums  on  fire  risks  and 
marine  time  risks  not  terminated  at  the  time  of  making  such  dividend; 

4.  A  sura  sufficient  to  pay  all  losses  reported  or  in  course  of  settlement,  and 
all  liabilities  for  expenses  and  taxes. 

AiuAct  to  confer  erf  at  n  powers  upon  corporations',  orfjanized  for  the.  pttrpoxe  of  dhcovering  and 

2ir<-ventiii<j  fits,  and  of  saritig  property  ami  human  life  from  conflaijralion. 
[Approved  April  1,  1870;  1875-0,  C89.] 
Po>''er  to  rqn'ip  and  employ  men  as  fire  patrol. 

SECTION  1.  Any  corporation  of  iiudcrwriters  heretofore  organized  and  now  existing,  orwliioh 
may  lie  hereafter  organized  iindur  the  laws  of  this  slate,  for  the  imri^ose  of  iliscovcring  and  pre- 
venting iircs  and  of  saving  property  and  human  life  from  conflagration,  and  duinj  business 
within  any  nmnicipal  corporation  of  this  state,  shall  have  p)wer,  at  its  own  proper  cost  and 
fXi.en  c,  to  maintain  a  corjis  of  men,  with  proper  oliicers,  etpiipped  with  the  neci'ss.iry  machin- 
ery and  aiiparatua  therefor,  whose  duly  it  sliall  be,  so  far  as  practicable,  to  discover  and  prevent 
tires  and  save  property  and  human  life  from  conllagration;  and  for  the  cffjcLive  discharge  of 
such  duties,  pov/er  and  authority  is  hereby  granted  such  corps  to  enter  any  building  on  (ire,  or 
in  which  property  is  on  fire,  or  whicii  such  corps  or  any  ofDcer  thereof  shall  deem  to  lie  imme- 
diately exposed  to  any  existing  firo,  or  in  danger  of  taking  fire  from  a  bunnng  building,  and  to 
remove  or  otherwise  save  r.nd  protect  from  coiillagratiou  or  damage  by  water  any  ]>i'operty, 
du:  ii;g  and  i..  mediately  after  sucli  fire;  provbled,  /i-nwier,  that  nothing  in  this  ;  ct  shall  be  so 
Construed  as  in  any  degree  to  lessen,  impair,  or  interfere;  with  the  powers,  privdcgcs,  duties,  or 
autluxity  of  the  regular  tire  department  of  such  nmnicipality;  and  provided  fiir!/ier,  that  no 
act  of  su'di  corps  .shall  justify  any  owner  of  any  building  or  property  in  abandoning  such  build- 
ing or  property. 
Priv(/('</e.f  'jranted  to  fire  patrol  corps. 

Sec.  "J.  Sucli  coipui-ation,  wilii  its  officers  and  corps,  when  running  to  a  fire,  shall,  with  its 
liors.  s,  vehicles,  and  salvage  apparatus,  have  tlio  same  right  of  way  as  is  or  may  be  licstowed  by 
any  ordinance  of  the,  nuinici2i;dity  or  law  of  this  state  up:)n  the  regular  fire  depart  sioit  of  the 
niuniciiMlity  wiierein  Fuch  corporation  is  acting;  prnvide  /,  that  the  rights  of  such  firo  depart- 
m-iiL  shad  always  l.c  paramount  to  the  rights  of  said  corporition.  Ail  ordinances  now  existing 
or  which  may  hereafter  be  passed  by  tiie  iiinnici|<al  authorities  of  any  city  and  county,  or  of  any 
incoi  poiate  I  city  <>r  town  wherein  such  a  coi-poration  may  carry  on  business,  and  all  la\\s  of  this 
state  a.ijilicalile  t'»  sueh  city  and  county,  or  ci.y  or  town,  for  the  conviction  or  pup.i.sl;ment  of 
any  pei-son  or  persons  willfully  or  carelessly  obstructing  the  progress  of  tlie  apparatus  of  the  lire 
deparLment  of  sucli  city  and  county,  or  city  or  tov.'u,  while  going  to  a  firo,  or  of  an^'  person  or 
persons  willfully  or  carelessly  injuring  any  animal  or  prfiperty  of  said  fire  depanment,  shall  bo 
equa  Iv  a|iplicalil(i  to  any  person  or  persons  willfidly  or  carelessly  obstructing  the  progress  of  the 
apparatus  <>f  such  cor|ioration  wldlo  going  to  a  fire,  and  to  any  person  or  jiersons  who  sliall  will- 
fully "r  carele-sly  injure  any  anin)al  or  property  of  sucli  corporation;  ami  said  laws  ami  ordi- 
nances, and  their  penaUies,  may  be  enforced  in  the  same  courts  and  in  the  sanio  manner,  and  with 
erpud  force  aid  cOect,  as  in  tlio  case  of  the  fire  department. 
Costs  anil  exjieiities  of'  maiiit.ahiintf  or;f"irization,  liom  wsi-xned. 

Sec.  3  Each  such  corporation  shall  ha\  o  power  t)  assess  its  members  for  tho  cost  of  estab- 
lish ng  and  leainlauiing  itsorganization,  upon  the  basisof  in^uranc;  bnsinesa  transacted  by  such 
mem!)  rs  within  tin;  municipality  where  such  corporation  is  carrying  on  business,  an  I  i:i  such 
in..nncr  as  is  oi'  may  be  |  roviilcd  for  by  its  bydaws.  and  all  assessments  so  made  may  l>e  duly 
<'n;oiced  under  anil  by  virtue  of  the  laws  of  this  state.  For  tlic  purpose  of  ajcortaining  tlie 
basis  of  such  assessments  such  corporation  shall  havo  power  to  re(]uiro  and  domuud  from  eaeb 

107 


§§  431-43S  CORPCRATIONS.  [Div.  I,  Pakt  IV, 

and  every  mcmlier  thereof  quarterly  statements  sworn  to  by  the  president  or  secretary,  in  case 
the  in-^nrauce  company  or  mcuiher  on  wliicli  the  demand  is  made  shall  be  incorporated  under  the 
laws  of  this  state,  or  otherwise  hy  the  a'^ent  of  the  co  njtany  wlio  shall  bn  raco .;nize  I  as  such  by 
the  iiH'iriii'jc  uo  uiiH-iiouor  of  this  stat;^  w!iii;!i  (|uarterly  statement  shall  show  the  a'^gregate 
araimiit  of  pfi-niiunis  received  and  receivable  for  fire  insurance  upon  property  within  suc'.i  munici- 
pality, by  said  comnmy  or  nieudjcr,  during  t!ic  three  niontlis  next  j)recedin'^.  respectively,  tlie 
thirly-lirst  day  of  March,  the  thirtieth  day  of  June,  the  thirtieth  day  of  September,  an<l  the 
thirty-lirst  day  of  December,  in  each  year,  and  a  demau  I  Ijy  tlie  secretary  or  trea-^nrer  of  such 
corporation,  made  within  fifteen  days  after  the  term'nation  of  any  such  quarter  of  a  year,  as 
heroinal)ovc  set  forth,  shr.ll  be  cousiilcred  the  demand  lier  dn  provided  for,  and  any  member  who 
shiill  fail  to  make  such  statement  within  ten  davs  after  such  demand  shall,  for  each  day's  <lelay 
after  sur  h  ten  days,  forfeit  ten  dollars,  to  be  added  to  such  member's  next  assessment,  and  pay- 
ment thereof  to  be  enforced  in  like  manner  as  is  provided  for  enforcing  payment  of  assess- 
ments. 

Six;.  4.     This  act  shall  take  effect  and  be  ia  force  from  and  after  its  passage. 

431.    Same. 

Sec.  4:'j1,  No  corporation,  formed  under  tbe  law??  of  tbig  state,  and  transact- 
ing* life  insurance  business,  must  malce  any  dividends,  except  from  profits 
remaining  on  liand  after  retaining  unimpaired — 

1.  The  entire  capital  stock; 

2.  A  sum  sufiicient  to  pay  all  lo.sses  reported,  or  in  course  of  settlement, 
and  all  liabilities  for  expenses  and  taxes; 

3.  A  sum  sufficient  to  reinsure  all  outstanding  policies  as  ascertained  and 
determined  upon  the  basis  of  the  American  experience  table  of  mortality, 
and  interest  at  the  rate  of  four  and  one  half  per  cent  per  annum.  [New 
section,  npprored  April!,  1878;  Amendmental^ll-d),  81;  iookeffect  from  passage. \ 

Life  cmd  liealdi  iusurance:  See^>o»<,  sees.  2762  et  seq. 

CHAPTER  III. 

MUTUAL  LIFE,  HEALTH,  AND  ACCIDENT  INSURANCE  CORPORATIONS. 

437.  Capital  stock — Guarantee  fund. 

Sec.  437.  Every  corporation  formed  for  the  purpose  of  mutual  insurance  on 
the  lives  or  health  of  persons,  or  against  accidents  to  persons  for  life  or  any 
fixed  period  of  time,  or  to  purchase  and  sell  annuities,  must  have  a  capital 
stock  of  not  less  than  one  hundred  thousand  dollars.  It  must  not  make  any 
insurance  upon  any  risk  or  transact  any  other  business  as  a  coi*poi*ation  until  its 
capital  stock  is  fully  paid  up  in  cash,  nor  until  it  has  also  obtained  a  fund,  to 
be  known  as  a  "  guarantee  fund,"  of  not  less  than  two  hundred  and  fifty  thou- 
sand dollars,  as  hereinafter  provided.  If  more  than  the  requisite  amount  13 
subscribed,  the  stock  must  be  distributed  pro  rata  among  the  subscribers.  Any 
subscription  maybe  rejected  by  the  board  of  directors  or  the  commi'tee  thei'eof, 
either  as  to  the  whole  or  any  part  thereof,  and  must  be,  so  far  as  rejected,  with- 
out effect. 

438.  Of  zoliat  guarantee  fund  shall  consist. 

Sec.  -138.  The  guarantee  fund  mentioned  in  the  preceding  section  must 
consist  of  the  pi-omissory  notes  of  solvent  parties,  approved  by  the  board  of 
directors  and  by  ea-^-h  other,  payable  to  the  corporation  or  its  order,  and  at  such 
times,  in  such  modes,  and  in  such  sums,  with  or  without  interest,  and  con- 
formable in  all  other  respects  to  such  requirements,  as  the  board  of  directors 
prescribe;  but  the  amount  of  the  notes  given  by  any  one  person  must  not  exceed 
in  the  whole  the  sum  of  five  tliousand  dollars,  exclusive  of  interest.  Such  note 
must  be  pay.able  absolutely  and  at  the  option  of  the  corporation;  they  must  be 
negotiable,  and  may  be  indorsed  and  transferred,  or  converted  into  cash,  or 
otherwise  dealt  with  by  the  corporation,  at  its  discretion,  without  reference  to 

lOS 


Title  11,  Chap.  III.]    MUTUAL  LIFE.  ETC.,  INSURANCE  COMPANIES.  §§  4.'59-442 

any  contingency  of  losses  or  expenses.  Sucli  notes,  or  the  proceeds  thereof, 
must  remain  with  the  corporation  as  a  fund  for  the  better  security  of  persons 
dealing  with  it,  and  constitute  the  assets  of  the  corporation,  liable  for  all  ita 
debts,  obligations,  and  indebtedness  next  after  its  assets  from  premiums  and 
otlier  sources,  exclusive  of  capital  stock,  until  the  net  earnings,  over  and  above 
its  expenses,  losses,  and  liabilities,  shall  have  accumulated  in  cash,  or  securities 
in  which  the  net  earnings  have  been  invested,  to  a  sum  which,  with  the  capital 
Btock,  is  equal  to  the  aggregate  of  the  original  amounts  of  the  guarantee  fund 
and  of  the  capital  stock. 

439.  WJiat  consiUutcH,  and  dcficininj  infixed  capital. 

Sic.  439.  The  sum  accumulated  as  provided  in  the  preceding  section,  together 
with  the  capital  stock,  shall  become  and  remain  the  fixed  capital  of  the  corpo- 
ration, not  subject  to  division  among  the  stockholders  or  parties  dealing  with 
it,  or  to  be  expended  in  any  manner  otherwise  than  maybe  required  in  payment 
of  the  corporation's  debts  and  actual  expenses,  until  the  business  of  the  corpo- 
ration is  closed,  its  debts  paid,  and  its  outstanding  policies  and  obligations  of 
every  kind  canceled  or  provided  for;  and  if  from  any  cause  a  deficiency  at  any 
time  occurs  in  such  fixed  capital,  no  further  division  of  profits  must  take  place 
until  such  deficiency  has  been  made  up. 

440.  Declaration  of  fixed  capital  In  befded.     • 

Sec.  440.  Whenever  the  fixed  capital  of  the  corporation  is  obtained  as  here- 
iubefoi'e  provided,  the  precident  of  the  corporation  and  its  actuaiy,  or  its 
sacretaiy  if  tbere  is  no  actuaiy,  must  make  a  declaration  in  writing,  sworn  to 
before  some  uotaiy  public,  of  the  amount  of  such  fixed  capital,  and  of  the  par- 
ticular kinds  of  property  composing  the  same,  with  the  nature  and  amount  of 
each  kind,  which  must  be  filed  with  the  original  articles  of  incorjioration,  and 
a  cojiy,  certified  by  the  county  clerk,  must  be  published  for  at  least  four  suc- 
cessive weeks,  in  a  newspaper  published  in  the  county  where  the  principal 
business  of  the  corporation  is  situated.  Upon  the  filing  of  such  declaration 
the  guarantee  fund  is  discharged  of  its  obligations,  and  all  notes  of  the  fund 
remaining  in  the  control  of  the  corporation,  and  not  affected  by  an}'  lien  thereon, 
or  claim  of  that  nature,  must  be  surrendered  by  it  to  the  makers  thereof,  respect- 
ively, or  other  parties  entitled  to  receive  the  same. 

441.  Guarantee  notes  and  inlereat,  how  di'^pofted  of. 

Sec.  441.  Until  the  guarantee  fund  is  discharged  from  its  obligations,  as 
provided  in  the  pi'eceding  section,  no  note  must  be  withdrawn  from  the  fund 
unless  another  note  of  equal  solvency  is  substituted  therefor,  with  the  approval 
of  the  board  of  directors.  The  corporation  must  allow  a  commission,  not 
exceeding  five  per  cent  per  annum,  on  all  such  guarantee  notes  while  outstand- 
ing, and  also  interest  on  all  moneys  paid  on  such  notes  by  the  parties  liable 
thereon,  at  the  rate  of  twelve  per  cent  per  annum,  payable  half-yearly  until 
repaid  by  the  corporation,  unless  the  current  rate  of  interest  is  different  from 
this  amount,  in  which  case  the  rate  p.ayablo  maj',  from  time  to  time,  at  intervals 
of  not  less  than  one  year,  be  increased  or  reduced  by  the  board  of  directors,  so 
as  to  conform  to  the  current  rate.  \Ame.ndmenty  approved  March  30, 1874;  Amend- 
ments 1873-4,  210;  took  effect  July  1, 1874.] 

442     Tns^ured  to  he  entitled  to  vote,  xchen. 

Sec.  442.  After  the  filing  of  the  declaration  of  the  fixed  capital,  as  in  this 
article  provided,  tL6  holders  of  policies  of  life  insurance  for  the  term  of  life, 

109 


§§  443-447  CORPORATIONS.  [Div.  I,  Part  IV, 

on  wliieh  the  premiums  are  not  in  default,  may  vote  at  the  election  of  directors, 
and  have  one  vote  for  each  one  thousand  dollars  insured  by  their  policies, 

respectively. 

443.  May  invest  in  what  securities. 

Sec.  44^5.  The  number  of  directors  specified  in  the  articles  of  incorporation 
may  be  altered  from  time  to  time  during  the  existence  of  the  corporation  by 
resolution,  at  the  annual  meeting  of  a  majority  of  those  entitled  to  vote  at  the 
election  of  directors,  but  the  number  must  never  be  reduced  below  five. 

444.  Investment  of  capital  stock,  on  what  securities. 

Sec.  444.  Life,  health,  and  accident  insurance  corporations  may  invest  their 
capital  stock  as  follows: 

1.  In  loans  upon  unincumbered  and  improved  real  property  -within  the  state 
of  California,  which  shall  be  worth  at  the  time  of  the  investment  at  least  forty 
per  cent  more  than  the  sum  loaned; 

2.  In  the  purchase  of  or  loans  upon  interest-bearing  bonds,  and  other  secu- 
rities of  the  United  States  and  of  the  state  of  California; 

3.  In  the  purchase  of  or  loans  upon  interest-bearing  bonds  of  any  of  the 
other  states  of  the  Union,  or  of  any  county,  or  incorporated  city,  or  city  and 
county  in  the  state  of  California; 

4.  In  the  purchase  of  loans  upon  any  stocks  of  corporations  formed  under 
the  laws  of  this  state,  except  of  mining  corporations,  which  shall  have,  at  the 
time  of  the  investment,  a  value,  in  the  city  and  county  of  San  Fi'ancisco,  of  not 
not  less  than  sixty  per  cent  of  their  par  value,  and  shall  be  rated  as  first-class 
securities;  but  no  loans  shall  be  made  on  any  securities  specified  in  subdivis- 
ions three  and  four  of  this  section,  in  any  amount  beyond  sixty  per  cent  of 
the  market  value  of  the  securities,  nor  shall  any  loan  be  made  on  the  stock  of 
the  corporation,  or  notes  or  other  obligations  of  its  corporators.  \  Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  211;  took  effect  Julij  1,  1874.] 

445.  Limitations  to  holding  of  stock,  etc. 

Sec.  445.  The  corporation  ma}',  by  its  by-laws,  limit  the  number  of  shai'es 
which  may  be  held  by  any  one  person,  and  make  such  other  provisions  for  the 
protection  of  the  stockholders  and  the  better  security  of  those  dealing  with  it 
as  to  a  majority  of  the  stockliolders  may  seem  proper,  not  inconsistent  with  the 
provisions  of  this  title  or  pai't. 

446.  Premiii VIS,  how  payable. 

Sec  44G.  All  premiums  must  be  payable  wholly  in  cash,  or  one  half  or  a 
greater  proportion  in  cash,  and  the  remainder  in  promissory  notes  bearing 
interest,  as  may  be  provided  for  by  the  by-laws.  Agreements  and  policies  of 
insurance  made  by  the  corporation  may  be  upon  the  basi.s  of  full  or  partial 
participation  in  the  profits,  or  without  any  participation  therein,  as  may  be  pro- 
vided by  the  by-laws  and  agreed  between  the  parties. 

447.  Insurance  commissioner  to  be  furnished  with  valuation  of  policiesi  outstandr- 
ing. 

Sec.  447.  Every  life  insurance  corporation  organized  under  tbd  laits  of  this 
state  must,  on  or  before  the  first  day  of  February  of  each  year",  funiish  the  in-i 
Burance  commissioner  the  necessarj'  data  for  determining  the  Valu'ati&n  of  all 
its  policV??  outstanding  on  the  thirty-first  day  of  December  then  next  preced- 
ing. And  every  life  insurance  company  organized  under  the  laws  tjf  any  other 
Btate  or  country,  and  doing  business  in  this  state,  must,  upon  ihenvritten  requi- 


Title  n,  Chap.  III.]   MUTUAL  LIFE,  ETC.,  INSURANCE  COMPANIES.  §§448-460 

sition  of  the  commissioner,  furnish  him,  at  such  time  as  he  may  designate,  the 
requisite  data  for  determining  the  valuation  of  all  of  its  policies  then  outstand- 
ing. Such  valuations  must  be  based  upon  the  rate  of  mortality  esLiblished  by 
the  American  experience  life-table  and  interest  at  four  and  one  half  per  cent 
per  annum.  For  the  purpose  of  making  the  valuations,  the  insurance  com- 
missioner is  authoi'ized  to  employ  a  competent  actuary,  whose  compensation 
for  such  valuations  shall  be  three  cents  for  each  thousand  dollars  of  insurance; 
to  be  paid  by  the  respective  companies  whose  policies  are  thus  valued.  {Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4,  211;  took  effect  July  1, 1874.  J 

448.  No  stamp  required  on  accident  insurance  contract. 

Sec.  448.  No  stamp  is  required  nor  stamp  duty  exacted  on  any  contract  of 
insurance,  when  such  contract  insures  against  accident  which  may  result  in 
injury  or  death. 

449.  Valuation  of  policies — Retaliatory  provision. 

Sec.  449.  When  the  certificate  of  the  insurance  commissioner  of  this  state, 
of  the  valuation  of  the  policies  of  a  life  insurance  company,  as  provided  in  sec- 
tion four  hundi'ed  and  forty-seven  of  the  Civil  Code  of  this  state,  issued  to  any 
company  organized  under  the  laws  of  this  state,  shall  not  be  accepted  by  the 
insurance  authorities  of  any  other  state,  in  lieu  of  a  valuation  of  the  same,  by 
the  insurance  officer  of  such  other  state,  then  every  company  organized  under 
the  laws  of  such  other  state,  doing  business  in  tliis  state,  shall  be  required  to 
have  a  separate  valuation  of  its  policies  made  under  the  authority  of  the  insur- 
ance commissioner  of  this  state,  as  provided  in  section  four  hundred  and  forty- 
seven  of  the  Civil  Code.  [New  section,  approved  March  30,  1874;  Amendments 
1873—4,  270;  took  effect  sixtieth  day  after  2)assage.] 

450.  Policies  issued  within  state,  what  to  contain. 

Sec.  450.  Everj'  contract  or  policy  of  insurance  hereafter  made  by  any  per- 
son or  corporation  organized  under  the  laws  of  this  state,  or  under  those  of' 
any  other  state  or  country,  with  and  upon  the  life  of  a  resident  of  this  state, 
and  delivered  within  this  state,  shall  contain,  unless  specifically  contracted 
between  the  insurer  and  the  insured  for  tontine  insurance,  or  for  other  term  or 
paid-np  insurance,  a  stipulation  that  when,  after  three  full  annual  premiums 
shall  have  been  paid  on  such  policy,  it  shall  cease  or  become  void  solely  by  the 
non-payment  of  any  premium  when  due,  its  entire  net  reserve,  by  the  Ameri- 
can experience  mortality,  and  interest  at  four  and  one  half  per  cent  yearly, 
less  any  indebtedness  to  the  company  on  such  policy,  shall  be  applied  by  such 
company  as  a  single  premium,  at  such  company's  published  i-ates  in  force  at 
the  date  of  original  policy,  but  at  the  age  of  tlie  insured  at  time  of  lapse,  either 
to  the  purchase  of  non-participating  term  insurance  for  the  full  amount  insured 
by  such  policy,  or  upon  the  written  application  by  the  owner  of  such  jiolicy, 
and  the  surrender  thei'eof  to  such  company  within  three  months  from  such 
non-payment  of  premium,  to  the  purchase  of  a  non-participating  paid-up  policy 
payable  at  the  time  the  original  ])olicy  would  be  payable  if  continued  in  force; 
both  kinds  of  insurance  to  be  subject  to  the  same  conditions,  except  as  to  pay- 
ment of  premiums,  as  those  of  the  original  policy.  It  may  be  provided,  how- 
ever, in  such  stipulation,  that  no  part  of  such  term  insurance  shall  be  due  or 
payable,  unless  satisfactory  proofs  of  death  be  furnished  to  the  insuring  com- 
pany within  one  year  after  death,  and  that,  if  death  shall  occur  within  three 
years  after  such  non-payment  of  premium,  and  during  such  term  of  insurance, 

111 


§5  4.-.!,  452  CORr(  RATIONS.  [Drv.  I,  Part  IV, 

tliere  shall  bo  cleducted  from  the  amount  payable  the  sum  of  all  the  premiums 
that  wouhl  have  become  clue  ou  the  original  policy  if  it  had  continued  in  force. 
If  the  respi've  on  endowment  policies  be  more  than  enonc"h  to  purchase  tem- 
porary insurance,  as  aforesaid,  to  the  end  of  the  endowment  term,  the  excess 
shall  be  applied  to  the  purchase  of  pure  endowment  insurance,  payable  at  the 
end  of  the  term,  if  the  insured  be  then  living.  If  any  life  insui-anco  coiTiora- 
tion  or  company  shall  deliver  to  any  person  in  this  state  a  policy  of  insurance 
upon  the  life  of  any  person  residing  in  this  state,  not  in  conformitj'  wilh  the 
provisions  of  this  section,  the  right  of  such  corporation  or  company  to  tiansact 
business  in  this  state  shall  thereupon  and  thereby  cease  and  terminate,  and  the 
insurance  commissioner  shall  immediately  revoke  the  certificate  of  such  cor- 
poration or  company  authorizing  it  to  do  business  in  this  state,  and  2>nblish 
such  revocation,  daily,  for  the  period  of  two  weeks,  in  two  daily  newspapers,  one 
published  in  the  city  of  San  Francisco  and  the  other  in  the  city  of  Sacramento. 
[Amenilmeul,  approved  April  26,  1880;  Amendment.^  [to  Pol.  Code)  1880,  01  {Ban. 
ed.  519);  toolc  effect  sixlieth  day  after  passage;  repealed  conjllcllng  acts.] 

451.  Fraternal  societies  not  insurance  companies. 

Sec.  451.  All  associations  or  secret  orders,  and  other  benevolent  or  fraternal 
co-operative  societies,  incorporated  or  organized  for  the  purpose  of  mutual  pro- 
tection and  relief  of  its  members,  and  for  the  payment  of  stipulated  sums  of 
money  to  its  members,  or  to  the  family  of  deceased  members,  and  not  for  profit, 
are  declared  not  to  be  insurance  companies  in  the  sense  and  meaning  of  the 
insurance  laws  of  this  state,  and  are  exempt  from  the  provisions  of  all  existing 
insurance  laws  of  this  state.  [New  section,  approved  March  23,  1885;  Statutes 
and  Amendments  1885,  221.] 

The  original  section  of  this  number  related  to  payment  of  policy  was  repealed  in  ISSO,  at  the 
same  time  with  section  452:  See  note  under  sec.  452. 

452.  Payment  and  cancellation  o/jyoUcy. 

Section  452  relating  to  payment  and  caucella-     Amendments    1880,    92   (Ban.   ed.  520);   took 
tion  of  policy  and  determination  i)f  net  value  of    effect  sixtieth  day  after  passage, 
policy,  was  repealed  by  act  of  Apiil  2G,  1880; 

An  Act  to  proo-ide  for  the  incorporation  of  mutual  insurance  companies,  for  the  insurance  of  life 

aii'l  hedlth,  (iiul  aijaiiLst  accidi'iils. 

[Approved  April  2,  18UU;  18C0-6,  702.J 

This  act  was  amended  in  1880  as  follows: 
Capital  utock. 

Sec.  8.  Every  company  formed  or  existing  under  this  act  shall  have  a  capital  stock  of  not 
less  th;in  one  liundred  thousand  dollars.  It  shall  not  make  any  insurance  nor  transact  any 
busin-iss  until  its  capital  stock  sliall  have  been  fully  paid  up  in  cash.  The  hoard  of  directors  of 
the  company,  or  a  committee  of  the  directors  ap[)oiutod  by  the  l)oard,  shall,  without  delay,  after 
organizing,  proceed  to  obtain  the  subsciiptions  required  to  comiilete  the  capital  stoclv  of  the 
companj',  and  in  obtaining  such  suliscription,  or  any  sul>scriptions  to  capital  stock  afterwards 
anthorizo'l,  must  open  books  therefor,  giving  public  notice  thereof,  if  deemed  necessary  by  them 
in  some  newspa;^er  of  general  circulation  in  the  county  in  which  th'j  principal  olttce  of  t'.u;  com- 
pany is  located;  such  books  shall,  in  either  case,  l)c  kept  open  until  the  amount  of  capital  stock 
required  shall  have  been  subscribed.  If  more  than  the  requisitf.  amoimt  is  subscribe<l,  the  stock 
shall  be  distributed  pro  rata  among  the  sul)scril)er3.  Any  subscription  may  be  rejected  by  the 
board  of  directors,  or  the  committee  thereof,  or  by  either,  as  to  the  whole  or  any  part  thereof, 
and  shall  be,  so  far  as  rejected,  without  etlect.  [Amend me nl,  approved  April  20.  1880;  1880, 
229  (/?!(?(,  ed.  552);  took  eject  from  passuije;  affects  on' >j  corporaiions  formed  before  ISTiJ.J 
lieturn  of  (juarautee  nolesi. 

Sec.  U.  Any  corporation  formed  or  existing  under  this  act  may,  at  any  time,  return  to  the 
makers,  their  assigns  or  heirs,  the  guarantee  notes  iiell  by  said  corporation;  and  from  and  after 
8uch  return,  or  the  offer  thereof,  made  in  good  faith,  the  corporation  shall  not  be  subject  to  any 
of  the  obligations  or  Imrdens  imposed  l)y  Sictioa  ten  of  said  act  upon  said  corporation  and  in 
favor  of  the  makers  of  such  notes.  [.Ameudmeid,  approved  April  20,  1880:  1880,  230  [Ban.  ed. 
523);  tool:  iffccl  from  pa-iHa<je;  affects  oidi/ corporatlowi  formed  i./o/'C  1873.] 
Impaired  ra/iital — A .■<,ieKsmeiit. 

Sec  10.  \Vhenever,  at  any  time,  the  capital  of  .any  corporation  formed  or  existing  under  this 
act  shall  become  impaired,  it  shall  bo  the  duty  of  the  board  of  directors  at  once  to  levy  such  an 

112 


Title  III,  Chap.  I.]  OFFICERS  AND  CORPORATE  STOCK.  8  454-456 

assessment  upon  the  capital  stock,  whether  paid  up  or  not,  as  may  be  necessary  to  make  good 
such  impaiinient;  and  such  assessment,  except  as  to  tlie  amount  thereof,  shall  he  levied  and  col- 
lected in  the  manner  prescrihcd  by  sections  three  hundred  and  thirty-one  to  three  hundred  and 
forty-nine,  inclusive,  of  the  Civil  Code  of  this  state.  Every  such  corporation  may  increase  or 
diminisli  its  capital  stock  in  the  mode  and  manner  prescribed  by  section  three  hundn'd  and  tifty- 
iiine  of  said  Civil  Code.  {Ameiidvient,  ap2)rovid  April  20,  1S80;  18S0,  230  (Bun,  ed.  523);  took 
affect  from  pa.ssafjr;  affecU  only  corjioratious  formed  before  1873.] 

The  net  of  Apiil  26,  1880,  from  wliich  the  foregoing  three  amendments  were  taken,  contained' 
the  following  additional  section: 
Construction  of  act. 

Sec.  4.  Nothing  in  this  act  shall  be  construed  to  affect  any  corporation  formed  after  twelve 
o'clock  noon  on  the  day  upon  which  the  Civil  Code  of  California  took  effect,  nor  shall  anytliing 
in  this  act  be  construed  to  revive  or  put  in  force  any  part  of  the  act  of  which  it  is  ainemiatory, 
beyond  wliat  w;is  intended  should  be  in  force  by  iho  provisions  of  section  two  hundred  aiul 
eighty-eight  of  the  Civil  Code  of  California. 


TITLE    III. 
BAILKOAD  CORPORATIONS. 

Chapter  I.     Officers  and  Corporate  Stock , 454 

II.     Enumeration  of  Powers 4G5 

III.     Business,  how  Conducted 479 

CHAPTER  I. 
OFFICERS  AND  CORPORATE  STOCK. 

454.  Directors  to  he  elected,  when. 

Sec.  454.  Directors  of  raih-oad  corporations  may  be  elected  at  a  mectiner  of 
the  stockholders  other  than  the  annual  meeting,  as  a  majority  of  the  fixed  cap- 
ital stock  may  determine,  or  as  the  by-laws  may  provide;  notice  thereof  to  be 
given  as  provided  for  notices  of  meetings  to  adopt  by-laws  in  Article  II.,  Chap- 
ter I.,  Title  I.,  of  this  part. 

455.  Additional  provisions  in  assessment  and  transfer  of  stock. 

Sec  455.  No  stock  in  any  railroad  corporation  is  transferable  until  all  the 
previous  culls  or  installments  thereon  have  been  fully  paid  in;  nor  is  any  such 
transfer  valid,  except  as  between  the  parties  thereto,  unless  at  least  twenty  per 
cent  has  been  paid  thereon  and  certificates  issued  therefor,  and  the  transfer 
approved  by  the  board  of  directors. 

456.  Bail  road  corporations  may  borrow  money  and  Vfsue  bonds. 

Sec.  45G.  Railroad  corporations  may  borrow,  on  the  credit  of  the  corpora- 
tion, and  under  such  regulations  and  restrictions  as  the  directors  thereof,  by 
unanimous  concurrence,  may  impose,  such  sums  of  money  as  may  be  necessary 
for  constructing  and  completing  their  railroad,  and  may  issue  and  dispose  of 
bonds  or  promissory  notes  therefor,  in  denominations  of  not  less  than  five  hun- 
dred dollars,  and  at  a  rate  of  interest  not  exceeding  ten  per  cent  per  annum; 
and  may  also  issue  bonds  or  promissory  notes  of  the  same  denomination  and 
rate  of  interest  in  payment  of  any  debts  or  contracts  for  constructing  and  com- 
pleting their  road,  with  its  equipments  and  all  else  relative  tliereto,  and  for 
the  purchase  of  railroads  and  other  property  within  the  purposes  of  the  cor- 
poration. The  amount  of  bonds,  or  )iron)issory  notes,  issued  for  such  pur- 
poses, must  not  exceed  in  all  the  amount  of  their  capital  stock;  and  to  secure 
the  payment  of  such  bonds  or  notes  they  may  mortgage  their  corporate  prop- 
erty and  franchises,  or  may  secure  the  payment  of  such  bonds  or  notes  by  deed 
Civ.  CouE— 8  113 


§§  457-4C5  CORrORATIONS.  [Div.  I,  Part  IV, 

of  trust  of  their  corporate  property  and  franchises.  Any  person  or  corpora- 
tion formed  under  the  laws  of  this  ytate,  or  of  any  other  state  witbm  the 
United  States,  that  the  directors  of  the  railroad  corporation  may  by  unanimous 
concurrence  select,  may  be  trustees  in  such  deed  of  trust.  [Amendment,  approved 
April  15,  18S0;  Amendments  1880,  10  {Ban.  ed.  211);  took  effect  immediately .\ 

Bon-owing  money  by  railroad  corpora-     principle,  unless  retrained  by  statute,  contract 

tions — Undur  this  section  railroad  companies     debts  by  obtaining  credit  in  the  course  of  its 

•could  not  engage  in  banlcing:  People  v.  River    business,  or  by    l)orrovving    money,  and    may 

i  liauin  etc.  R.  R.  Co.,  12  Mich.  ."39.     Power  to     give  evidences  of  its  debts  tlie  same  as  an  indi- 

*  borrow  money  on  interest,  and  give  bonds  pay-     vidual:  Kent  v.  Quic/cxHver  lit.   Co.,  78  N.  Y. 
able  at  such  times  and  places  as  mi^ht  be  agreed     1j9,  177;  Olcott  v.  Tio<ja  R.   Co.,  '21   Id.  54G; 

-npon,   authorizes  a   contract   to   pay   inLerest  Cnrtlxv.  LeavUf,  I!")  h\.  0;  Kel/// v.  A'abama  R. 

periodically  beforo  payment  of  principal:  Coe  Co.,  58  Ala.  489;  Rlc/iards  v.  Merrimark  R.  R. 

V.  CoLiuiihm  R.  R.  Co.,  10  Ohio  St.  372,  300.  Co.,  44  N.  II.  127;  Commonioeahh  v.  Smith,  10 

A   railroad  corporation   may,  as  a  general  Allen,  448,  455;    IFood  v.  Whelan,  93  III,  153. 

•  457.    To  provide  sinking  fund  to  pay  bonds. 

Sec.  457.  The  directors  must  provide  a  sinking  fund,  to  be  specially  applied 
to  the  redemption  of  such  bonds  on  or  before  their  maturity,  and  may  also  con- 
fer on  any  holder  of  any  bond  or  note  so  issued,  for  money  borrowed  or  in  pay- 
ment of  any  debt  or  contract  for  the  construction  and  equipment  of  such  road, 
the  right  to  convei't  the  principal  due  or  owing  thereon  into  stock  of  such  cor- 
poration, at  any  time  M'ithin  eight  years  from  the  date  of  such  bonds,  under 
such  regulations  as  the  directors  may  adopt. 

458.    Capital  stock  to  be  fixed. 

Sec  458.  When,  at  any  time  after  filing  the  articles  of  incorporation,  it  is 
ascertained  that  the  capital  stock  therein  set  out  is  either  more  or  less  than  act- 
ually required  for  constructing,  equipping,  operating,  and  maintaining  the  road, 
by  a  two-thirds  vote  of  the  stockholders  the  capital  stock  must  be  fixed,  and  a 
certificate  thereof,  and  of  the  proceedings  had  to  fix  the  same,  must  be  made 
out  and  filed  in  the  office  of  the  secretary  of  state. 

453.    Certificate  of  payment  of  fixed  capital  stock. 

Sec  450.     AVithin  thirty  days  after  the  payment  of  the  last  installment  of  the 

fixed  capital  stock  of  any  railroad  corporation  organized  under  this  title  and 

part,  the  president  and  secretary  and  a  majority  of  the  directors  thereof  must 
make,  subscribe,  and  file  in  the  office  of  the  secretary  of  state  a  certificate,  stat- 
^ing  the  amount  of  the  fixed  capital  stock,  and  that  the  whole  thereof  has  been 

paid  in.     The  certificate  must  be  verified  by  the  affidavit  of  the  president  and 

eecretaiy. 

CHAPTER  II. 

EXmiERATION  OF  POWERS. 

"465.   Enumeration  of  powers. 

Sec  4G5.     Eveiy  railroad  corporation  has  power: 

1.  To  cause  such  examination  and  surveys  to  be  made  as  may  be  necessary  to 
the  selection  of  the  most  advantageous  route  for  the  railroad;  and  for  such  pur- 
poses their  officers,  agents,  and  employees  may  enter  upon  the  lands  or  waters 
of  any  person,  subject  to  liability  for  all  damages  which  they  do  thereto. 

May  accept  real  estate. 

2.  To  receive,  hold,  take,  and  convey,  by  deed  or  otherwise,  as  a  natural  per- 
son, such  voluntary  grants  and  donations  of  real  estate  and  other  pi'operty 
•which  may  be  made  to  it  to  aid  and  encourage  the  construction,  maintenance, 
and  accommodation  of  suck  railroad. 

Hi 


TiTLBin,  Chap.  II.]  ENUMERATION  OF  POWERS.  (465 

Ilay  acquire  real  estate. 

3.  To  purchase,  or  by  voluntary  grants  or  donations  to  receive,  enter,  take 
possession  of,  bold,  and  use,  all  such  real  estate  and  other  property  as  may  be 
absolutely'  necessary  for  the  construction  and  maintenance  of  such  railroad,  and 
for  all  stations,  depots,  and  other  purposes  necessary  to  successfully  work  and 
conduct  the  business  of  the  road. 

Lay  out  road,  hoio  wide. 

4.  To  lay  out  its  road,  not  exceeding  nine  rods  wide,  and  to  construct  and 
maintain  the  same,  with  a  single  or  double  track,  and  with  such  appenduges 
and  adjuncts  as  may  be  necessary  for  the  convenient  use  of  the  same. 

Where  may  construct  road. 

5.  To  construct  their  road  across,  along,  or  upon  any  stream  of  water,  water- 
course, roadstead,  bay,  navigable  stream,  street,  avenue,  or  highway,  or  across 
any  railway,  canal,  ditch,  or  flume,  which  the  route  of  its  road  intersects,  crosses, 
or  runs  along,  in  such  manner  as  to  afford  security  for  life  and  property;  but 
the  corporation  shall  restore  the  stream  or  watercourse,  road,  street,  avenue, 
highway,  railroad,  canal,  ditch,  or  flume  thus  intersected  to  its  former  state  of 
usefulness,  as  near  as  may  be,  or  so  that  the  railroad  shall  not  unnecessarily 
impair  its  usefulness  or  injure  its  franchise;  thus  intersected  to  its  former  state 
of  usefulness,  as  near  as  may  be,  or  so  that  the  railroad  shall  not  unnecessarily 
impair  its  usefulness  or  injure  its  franchise. 

May  cross  or  connect  roads. 

6.  To  cross,  intersect,  join,  or  unite  its  railroad  with  any  other  railroad, 
either  before  or  after  construction,  at  any  point  upon  its  route,  and  upon  the 
grounds  of  such  other  railroad  corporation,  with  the  necessary  turnout,  sidings, 
and  switches,  and  other  conveniences  in  furtherance  of  the  objects  of  its  con- 
nections; and  every  corporation  whose  railroad  is,  or  shall  be  hereafter,  inter- 
sected by  any  new  railroad  shall  unite  with  the  owners  of  such  new  railroad 
in  forming  such  intersections  and  connections,  and  grant  facilities  therefor;  and 
if  the  two  corporations  cannot  agree  upon  the  amount  of  compensation  to  be 
paid  therefor,  or  the  points  or  the  manner  of  such  crossings,  intersections,  and 
connections,  the  same  shall  be  ascertained  and  determined  as  is  provided  in 
Title  VII.,  Part  III.,  Code  of  Civil  Procedure. 

Maij  jnircJiase  land,  timber,  stone,  gravel,  etc. 

7.  To  purchase  lands,  timber,  stone,  gravel,  or  other  materials,  to  be  used  in 
the  construction  and  maintenance  of  its  road,  and  all  necessary  appendages 
and  adjuncts,  or  acquire  them  in  a  manner  provided  in  Title  VII.,  Part  III., 
Code  of  Civil  Procedure,  for  the  condemnation  of  lands;  and  to  change  the 
line  of  its  road,  in  whole  or  in  part,  whenever  a  majority  of  the  directors  so 
detei'mine,  as  is  provided  hei*eiuafter;  but  no  such  change  must  vary  the  general 
route  of  such  road,  as  contemplated  in  its  articles  of  incorporation. 

Carry  jyersons  and  freight. 

8.  To  carry  persons  and  property  on  their  railroad,  and  receive  tolls  or  com- 
pensation therefor. 

Urevt  necessary  build ingst. 

9.  To  erect  and  maintain  all  necessary  and  convenient  buildings,  stations, 
depots,  fixtures,  and  machinery  for  the  accommodation  and  use  of  their  passen- 
gers, freight,  and  business. 

JieguUile  time  and  freight,  subj"ct  to  legislation. 

10.  To  regulate  the  time  and  manner  in  which  passengers  and  property  shall 

115 


S465 


CORPORATIONS. 


Piv.  I,  Part  IV, 


be  transported,  and  the  tolls  and  compensation  to  bo  paid  therefor  witbin  the 
limits  prescribed  bj  law,  and  subject  to  alteration,  change,  or  amendnient  by 
the  legislature  at  any  time. 
Itegulate  force  and  speed. 

11.  To  I'ogulate  the  force  and  speed  of  their  locomotives,  cars,  trains,  or 
other  machinery  used  and  employed  on  their  road,  and  to  establish,  execute, 
and  enforce  all  needful  and  proper  rules  and  regulations  for  the  management 
of  its  business  transactions  usual  and  proper  for  railroad  corporations. 

Proliminary  survey  may  be  authorized  by     roa,il3  are,  to  all  intents  and  purposes,  public 


the  state  without  coaipc  u^atioa  being  previ- 
ously paid  or  secured  to  the  owner,  sucli  act 
not  being  a  '"taking"  within  the  constitutional 
meaning  of  eminent  domain.  The  entry  must 
b;,',  iiowever,  for  a  temporary  purpose,  and  ac- 
companied  l)y  no  unnecessary  damage:  Blood- 


good  V.  Mohawk  <£•  //.   li.   Co.,  J-1  Wend.  51;    pell.  Rice,  SS3. 


highways,  subject  oaly  to  the  restriction  t'lab 
per.iona  going  on  them  must  use  tlie  veliiclca 
provided  by  the  owners  of  the  roa<l,  atid  must 
pay  toll  thereon:  S.  F.  li.  I'.  Co.  \.  Ca'dicell, 
31  Cal.  .037;  R^d  vjh  etc.  R.  R.  Co.  y.  Davis,  2 
Dev.  &  B.  4Jl;  Louisville  etc.  R.  R.  Co.  v.  Chap- 


Polly  V.  Sarato'ja  d:  W.  R.  Co.,  0  Baib.  449; 
Bonaparte  v.  Camden  A  A.  R.  R.  Co.,  Caldw. 
20");  CVfs/it//f/v..9«ii7/j, 34Mc.  247;  Orrv.Quimby, 
54  N.  II.  590;  Lyon  v.  Green  Bay  .C-  M.  R.  Co., 
42  Wis.  538;  Wcdther  v.  Warner,  25  Alo.  277. 

Where  the  charter  of  a  railroad  company  au- 
thorizes an  entry  for  the  purpose  of  locating 
the  road,  and  directs  the  location  to  be  made, 
and  a  survey  of  the  route  of  the  road  to  be  de- 
posited in  the  ofBco  of  the  secretary  of  state, 
the  location  and  deposit  are  conditions  piece- 
dent  to  their  authority  to  enter  for  the  purpose 
of  constructing  the  read:  Bonaparte  w.  Camden 
cfc  A.  R.  R.  Co.,  supra. 


Lind  may  he  appropriated  for  depots,  station- 
grounds,  euginediouses,  warehouses  for  receiv- 
ing, storing,  and  de'ivcring  goods:  /'en.s.selaer 
d-  S.  R.  Co.  v.  Davis,  43  N.  Y.  137;  N.  Y.  <b 
IL  R.  Co.  V.  Kip,  40  Id.  54G;  In  reN.  Y.  Cent. 
R.  R.  Co.,  77  Id.  24S;  Mansfield  etc.  R.  Co.  v. 
Clark,  23  JNlich.  510;  Reed  v.  Louisville  Bridge 
Co.,  8  Bush,  09;  Hannibal  etc.  R.  Co.  v.  Muder, 
49  Mo.  1G5;  for  shops  for  the  repair  of  cars  and 
locomotives:  C.  B.  &  Q.  Co.  v.  Wdson,  17  111. 
123;  llamnbal  &  St.  J.  R.  Co.  v.  Muder,  49 
Mo.  1G5;  Vir.  d:  T.  R.  Co.  v.  Elliott,  5  Ncv. 
338;  State  v.  Mansfield,  3  Zab.  510;  S.  /'.  R.  R. 
Co.  v.  Raymond,  53  Cal.  223,  in  which  ease  the 


Subds.  2,  3.     Aoquiring  real  estate  other  question  was  raised  whether  such  work-shops 

than  by  eminent  domain:    See  the  note  to  sec-  were  "necessary  appendages"  within  the  mean- 

tion  354,  ante,  subdivision  4,  upon  the  general  ing  of  this  section,  and   considered   a   jToper 

power  of  corporations  to  acquii'c  and  dispone  of  issue  to  be  submitted  at  the  trial.     See  Pierce 

property.    The  power  to  hold  real  estate  is  lim-  on  Railroads,  150,  151,  et  serj.,  for  a  systematic 

ited  to  the  proper  and  necessary  uses  of  the  arrangement  of  numerous  authorities  upon  the 

ciunpany,  such  as  for  L)cation,  materials  for  con-  propositions  for  what  purposes  railroads  may 

Btruction,  station-grounds,  and  other  like  pur-  condemn  private  property,  and  what  private 

[)oses.  aail  does  not  extend  to  the  purchase  of  property  may  be  condemned, 

and  as  an  investment  or  .'^peculation:  Orerineyer  Under  the  guise  of  a  public  use,  a  corpora- 


V.  IVilliams,  15  Oiiio,  2G;  Sl,ate  v.  Newmarb,  1 
D.  tch.  315;  Taber  v.  Cin.  L.  d:  C.  R.  Co.,  15 
Ind.  459;  Waldo  v.  Chlca/o,  St.  P.  d-  F.  R.  Co., 
14  Wis.  575;  Pacific  R.  Co.  •-.  Seely,  45iMo.  212. 

Cs^ecclias  liniit  up^a  po">.ver  to  acquire 
reiliy:  See  ante,  sec.  3G0,  and  note. 

Gu ods.  G,  7.  Eininenl  d  .mala — It  is  well 
settled  that  railroads  for  jjublic  travel  are  public 
im:irovcmcnt3,  in  behalf  of  whicli  the  power  of 
eminent  domain  may  be  legitimately  (exercised: 
Is  a  pa  R.  R.  Co.  v.  Napa  Co.,  30  Cal.  437; 
Storkton  R.  R.  V.  at II  of  Stocklon,  41  Id.  147; 
S.  F,  A.  d-S.  R.  R.  Co.  V.  Ca'dwell,  31  Id.  3G7; 
Contra  Costa  R.  R.  Co.  v.  Moss,  23  Id.  323; 
Fox  V.  W.  P.  R.  R.  Co.,  31  II.  533;  Ca'.  P. 
R.  R.  Co.  V.  G.  P.  R.  R.  Co..  47  Id.  510;  S.  P. 
R.  R.  Co.  V.  Raymond,  5:1  Id.  223;  S.  P.  R.  R. 
Co.  V.  Wilson,  40  Id.  300;  .Sac.  \'al.  R.  R.  v. 
Mnf.xtl,  7  Id.  577;  G.  P.  11  R.  v.  Pearson,  35 
Id."  247;  C.  P.  R.  R.  v.  Frlsble,  41  Id.  3-)3;  Ccd. 
P.  n.  R.  Co.  V.  Armstroin/,  43  Id.  85;  B  ektnm 
V.  Sn-atoija  R.  //.,  22  Am.  Dec.  G70,  cal'.ed  the 
leading  American  decision  on  tliia  s.ibject  in 
Stc'vart  V.  Supervisors  of  Poll:  Co.,  30  lavva,  9; 
A  'drld'i''  V.  Tascumbla  R.  R.  Co.,  23  A  n.  Dec. 
337;  Glbsmv.  Mason,  5Nev.  233;  Sioan  v.  Will- 
j.Tfti--,  2  Mich.  427;  Bro:vii.  v.  ileatlii,  34  Miss. 
227;  llullenheck  v.  //a/in,  2  Neb.  377;  Cmcord 
R.  R.  Co.  V.  Oreeh/,  17  N.  II.  47;  B.ifah  etc. 
R.  R.  Co.  V.  Bra'lnard,  9  N.  Y.  lOO';  BnfJT.ih 
etc.  li.  R,  Co.  V.  Ferris,  23  Tex.   5S3.     Such 


tion  operating  a  private  railroad  for  its  own 
convenience  in  transporting  coal  from  its  mine, 
no  passenger  or  other  cars  being  provided  for 
the  use  of  the  public,  cannot  condemn  jirivata 
land  for  the  purposes  of  such  a  railroad:  People, 
V.  Pi't.sbiir()h  R.  /,\  Co.,  53  Cal.  094. 

Emiaeat  domain:  See  the  subject  dis- 
cussed in  Code  Civ.  Proc,  sees.  1237-i2G3,  and 
notes. 

C3an30ting  -with  and  crossing  other  rail- 
roads: See  constitutional  right  of  railroad 
comiianics  to  intersect,  connect  with,  or  cross 
otlier  railroads,  art.  12,  sec.  17,  Const.  Cal. 
1G79.  The  right  to  compensation  for  the  cross- 
ing of  one  railroad  by  auotlier  may  bo  given  by 
st'.Lut-:  In  re  Lockport  d-  B.  R.  Co.,  Ti  N.  Y. 
557;  In  re  Boston  d  /I.  T.  R.  R.  Co.,  70  Id.  04. 
Tiie  use  of  the  rails  of  another  comi)auy:  Jer- 
sey City  etc.  R.  Go.  v.  Jersey  City  He.  R.  Co., 
20  N.  J.  Kq.  01;  Metropolitan  R.  Co.  v.  Qnincy 
R.  Co.,  12  Allen,  202;  or  the  laying  of  tracks 
upon  its  location:  Worcester  d  N.  R.  Co.  v. 
Railroad  Coni'rs,  113  Mass.  5G1,  is  a  taking 
requiring  compensation. 

If  a  railroad  company  whose  road  forms  a 
j'.uiction  with  another  road  relies  upon  an  em- 
ployee of  the  latter  to  attend  to  the  switch,  it 
is  not  relieved  from  responsibility  for  an  acci- 
dent on  the  ground  that  it  did  not  employ  the 
sw'tc'nnan:  Taylor  v.  Western  P.  R.  Jt.  Co., 
45  CaL  323. 


UG 


Title  III,  Chap.  IT.]  ENUMERATION  OF  POWERS.  §  466-468 

Siibd.   7.     Clianging    route.— The    power  Church,   108  U.   S.   SI?.      The  railroatl   com- 

to  cliaiipe  the  h^catioii  must   bu  strictly  con-  pany   constructed    an    engine-house  ami    ma- 

Btrucd:   Pierce   on    llailroads,    255.     And    the  chine-shop  on   a  parcel  of  land  ailjoinin'^'  tlie 

power  lo  cliange  tlie  route  does  not  authorize  a  churcii.     The  use  of  these  shops  disturbctl  tlio 

chdkngQoi  thQtirmlvi:  Attorney-Geiicrul  w  Went  congregation,    hy   the   hammering,    whistling. 

Wis.  li.  U.  Co.,  ?>'o  Wis.  4G0;  see  sec.  4G7,  pO'<t.  ringing    of    bells,    ])assing    and    repassing   of 

Subd.  8.     Rates  of  charges:  See  pod,  sec.  engines,   and  the  oU'ensive  smoke  and  cinder 

489.     IvStablishincnt  of  rates  by  railroad  com-  which    entered    the    church.     An   action   for 

niissioners:   See   Const.  Cal.,  art.   12,  sec.  22.  damages  r(  salted  in  a  verdict  for  four  thousand 

Tolls. — Pierce  on  Itailroads,  49S,  makes  the  five  hundred  dollars,  which  was  alurnied. 
following  remarks  on  the  distinction  between  Judge  Field,  speaking  for  the  court,  declared 
tolls  anil  rates  of  fare:  "The  power  to  take  tlie  shops  to  be  a  nuisance,  and  used  the  follow- 
tolls*  must  be  ex))rcEsly  given,  and  when  so  ing  language  in  the  course  of  the  opinion:  "The 
given  is,  in  case  of  doubt  or  ambiguity,  to  be  authority  of  the  company  to  construct  such 
construed  favoral)ly  to  the  public:  Perrbie  v.  works  as  it  might  deem  necessary  and  expedi- 
Vhr!<aii(ahe  Cav.'d  Co.,  \)  How.  172;  Cdindeii  d:  ent  for  the  completion  and  maintenance  of  ita 
A.  li.  Co.  v,  Briitf/x,  2  Zab.  02.3;  IJr'nlup  (Jo.  v.  road  did  not  authorize  it  to  place  them  \\  hcre- 
Jioholoi  Co.,  2  L'cas.  81,  50.'];  1  Wall.  IIG;  ever  it  might  think  proper  in  the  city  without 
Pcuii.  /'.  Co.  v.  National  /?.  Co.,  23  N.  J.  Eq.  reference  to  the  property  and  riglits  of  others. 
411;  UlaLc  v.  Winoiind- Sf.  P.  R.  Co.,  19  Minn.  *  *  *  Whatever  the  extent  of  the  author- 
418;  Alidin  v.  III.,  04  U.  S.  113,  12G.  Tolls  are  ity  conferred,  it  was  accompanied  by  this  im- 
to  be  distinguished  from  rates  of  transporta-  plied  qualification  that  the  work  should  not  i)e 
tions,  being  a  tribute  for  a  privilege  as  a  right  so  placed  as  by  their  use  to  unreasonably  inter- 
of  passage,  and  not,  like  freight  or  fares,  a  pay-  fere  with  and  disturb  the  peaceful  and  com- 
ment for  a  service:  JJoy'e  v.  Ph'Aa.  etc.  J'.  A*,  f  ntable  enjoyment  of  others  in  their  property. 
<  0.,  b-l  Va.  Ht.'MO;  Cianlicrlranl  Val/ci/  /,'.  ('o.''s  Grants  of  privileges  or  powers  to  corporate 
Apperl,  G2  Id.  218;  Cavihlos  v.  Phila.  etc.  11.  R.  bodies  like  those  in  (juestion  confer  no  license  to 
Co.,  4  Drewst.  r,C3."  nso  them  in  disregaril  of  the  private  rights  of 

Subd.  9.      Erecting  buildin-s.— The    su-  others,  and  witli  immunity  for  theirinvasion." 

preme  court  of  the  United  ,St;itcs  has  passed  S'abd.  10.     Regulnting  time  and  mamier 

upon  an  interesting  <|uestion  in  th's   connec-  of  traasportatiou,  time  tables  of  starting: 

ti  n:  Baliimort  d:  O.  li.  li.  Co.  v.  Pi/th  Uajiti.nt  See  sec.  481. 

•466.    Map  and  profile  lo  he  filed. 

Sec.  4GG.  Every  railroad  corporation  in  this  state  must,  within  a  reasonable 
time  after  its  road  is  finally  located,  cause  to  bo  made  a  map  and  profile  thereof, 
and  of  the  laud  acquired  for  the  use  thereof,  and  the  boundaries  of  the  several 
counties  through  which  the  road  may  run,  and  file  the  same  in  the  olEce  of  the 
secretary  of  state;  and  also  like  maps  of  the  parts  thereof  located  in  different 
counties,  and  file  the  same  in  the  office  of  the  clerk  of  the  county  in  which 
such  parts  of  the  I'oad  are,  there  to  remain  of  record  forever.  The  maps  and 
profiles  must  be  certified  by  the  chief  engineer,  the  acting  president  and  secre- 
taiy  of  such  company,  and  copies  of  the  same,  so  certified  and  filed,  be  kept  in 
the  office  of  the  secretary'  of  the  corporation,  subject  to  examination  by  all 
parties  interested. 

467.  ]\lai/  cliavge  line  of  road. 

Sic.  4G7.  If,  at  any  time  after  the  location  of  the  line  of  the  railroad  and  the 
filing  of  the  maps  and  profiles  thereof,  as  provided  in  the  preceding  section,  it 
appears  that  the  location  can  be  improved,  the  directors  may,  as  pi-ovided  in 
subdivision  seven,  section  four  hundred  and  sixty-five,  alter  or  change  the  same, 
and  cause  new  maps  and  profiles  to  be  filed,  showing  such  changes,  in  the  same 
offices  where  the  originals  are  of  file,  and  may  proceed  in  the  same  manner  as 
the  original  location  was  acquired,  to  acquire  and  take  possession  of  such  new 
line,  and  must  sell  or  relinquish  the  lands  owned  by  them  for  the  original  loca- 
tion, within  five  years  after  such  change.  No  new  location,  as  herein  provided, 
must  be  so  run  as  to  avoid  any  points  named  in  their  articles  of  incorporation. 

Stats.  ISGl,  p.  G21,  sec.  .34. 

Chaugiug  location:  See  sec.  405,  subd.  7,  and  note. 

468.  Forfeiture,  of  franchise. 

Sec  4(J8.  Every  railroad  corporation  must,  within  two  years  after  filing  its 
original  articles  of  incorporation,  begin  the  construction  of  its  road,  and  must 

117 


g§4G9-473  CORPORATIONS.  lOiv.  I,  Pabt  IV, 

every  year  thereafter  complete  and  put  iu  full  operation  at  least  five  miles  of  its 
road,  until  the  same  is  fully  .completed;  and  upon  its  failure  so  to  do,  for  the 
period  of  one  year,  its  right  to  extend  its  road  beyond  the  point  then  completed 
is  forfeited. 

Stats.  1S61,  C'26,  sec.  54;  1870,  578. 

Orgauising  and  commencing  work:  See  general  provision,  sec.  358,  ante,  and  note. 

4G3.    Croi^sings  and  intersections. 

Sec.  4G9.  Whenever  the  tract  of  one  railroad  intersects  or  crosses  the  track 
of  another  railroad,  whether  the  same  be  a  street  railroad,  wholly  within  the 
limits  of  a  city  or  town,  or  other  railroad,  the  rails  of  either  or  each  road  must 
be  so  cut  and  adjusted  as  to  permit  the  passage  of  the  cars  on  each  road  with 
as  little  obstruction  as  possible;  and,  in  case  the  persons  or  coi-poratious  own- 
ing the  railroads  cannot  agree  as  to  the  compensation  to  be  made  for  cutting 
and  adjusting  the  rails,  the  condemnation  of  the  right  of  way  over  the  one  for 
the  use  of  the  other  road  may  be  had  in  proceedings  under  Title  VII.,  Part  III., 
Code  of  Civil  Procedure,  and  the  damages  assessed  and  the  right  of  way  granted 
as  in  other  cases. 

Stats.  1862,  493.  Crossings  and  intersections:  Seean^e,  465, 

Right  of  eminent  domain:  Code  Civ.  Proc,     subd.  sec.  G. 
Bees.  1237-1"2G3. 

470.  ?7se  of  streets,  alleys,  or  icater  in  cities  or  towns. 

Sfc.  470.  No  railroad  corporation  must  use  any  street,  alley,  or  highway,  or 
any  of  the  land  or  water,  within  any  incorporated  city  or  town,  unless  the  right 
to  so  use  the  same  is  granted  by  a  two-thirds  vote  of  the  town  or  city  authority 
from  which  the  right  must  emanate. 

471.  Charging  fare  in  cities. 

Section  471,  relating  to  railroads,  other  than     of  April  1,  1878;  Amendments  1877-8,  84;  took 
street  I'ailmads,  iu  cities  charging  fare  to  and     eflfcct  immediately, 
from  points  in  such  cities,  was  repealed  by  act 

472.  When  crossing  railroads  or  highways,  how  other  lands  are  acquired. 

Sec.  472.  "Whenever  the  tract  of  such  railroad  crosses  a  railroad  or  highway, 
such  railroad  or  highway  may  be  carried  under,  over,  or  on  a  level  with  the 
track,  as  may  be  most  expedient;  and  in  cases  where  an  embankment  or  cutting 
necessitates  a  change  iu  the  line  of  such  railroad  or  highway,  the  corporation 
may  take  such  additional  lands  and  material  as  are  necessary  for  the  construc- 
tion of  such  road  or  highway  on  such  new  line.  If  such  other  necessary  lands 
cannot  be  had  otherwise,  they  may  be  condemned  as  provided  iu  Title  VII., 
Part  III.,  Code  of  Civil  Procedure;  and  whsn  compensation  is  made  therefor, 
the  same  becomes  the  property  of  the  corporation. 

Stats.  ISGl,  CIG,  sec.  19.  restore  the  highway  to  its  former  condition  so 

Right oi  em '-oeut domain:  Code  Civ.  Proc,  as  not  to  interfere  materially  with  iis  iiscful- 

eecs.  r2:i7-l2G:).  ness,  and  to  make  the  crossing  safe  and  conven- 

Mode  of  crossing  loigh'ways. — The  election  ient  for  the  public,  is  presumed  to  be  incum- 

of  the  company  to  cross  irailer  or  over  a  high-  bent  upon  the  company  without  any  express 

way,  when  the  power  of  choice  is  conferred  by  statutory  requirement:  Norlheni  Vent.    11.  Co. 

statute,  is  not,  when  made  in  good  faith,  sub-  v.    Ballimorc,    4(j   Md.    425;   Eijhr   v.    Coiinlif 

ject  to  judicial  control:  Peoplf  v.  JV.   Y.  C'l^nt.  Com'ra,  49  Id.  257;  ludlaiiapoiU  it  C.  R.  Co. 

Ji.  H.  Co.,  74  N.  Y.  302;  Slruihers  v.  Dunkirk  v.  State,  37  lud.  3S9,  502. 

jr.  tfc  /'.  n.  Co.,  87  Pa.  St.  282.     The  duty  to 

473.  Corporations  may  consolidate. 

Sec  473.  Two  or  more  railroad  corporations  may  consolidate  their  capital 
stock,  debts,  property,  assets,  and  franchises  in  such  manner  as  may  be  agreed 
upon  by  their  respective  boards  of  directors.  No  such  amalgamation  or  con- 
solidation must  take  place  without  the  written  consent  of  the  holders  of  three 

lis 


Title  III,  Chap.  11.]  ENUMERATION  01^  POWERS.  §§  474-4T8 

fourths  in  value  of  all  the  stock  of  each  corporation;  and  no  such  amalgama- 
tion or  consolidation  must  in  any  way  relieve  such  corporation  or  the  stock- 
holders thereof  from  any  and  all  just  liabilities.  In  case  of  such  amalgamation 
or  consolidation,  due  notice  of  the  same  must  be  given,  by  advertisement  for 
one  month  in  at  least  one  newspaper  in  each  county,  if  there  be  one  published 
therein,  into  or  through  which  such  roads  run,  and  also  for  the  same  length  of 
time  in  one  paper  published  in  Sacramento  and  in  two  papers  published  in  San 
Francisco;  and  when  the  consolidation  and  amalgamation  is  completed,  a  copy 
of  the  new  articles  of  incorporation  must  be  filed  in  the  office  of  the  secretary 
of  state. 

Stats.  18G1,  G22,  sec.  40.  of  and  buy  a  majority  of  thestock  in  a  rival  road: 

Coasolidatiou  of  railroad  corporations.  Elk' as  v.  Cunidpn  d-  Atlantic  R.  IL  Co.,  M  N. 

A  railroad  or  other  corporation,  in  the  absence  J.  Yj\.  5,  where  it  is  said:  "  Union  aiul  consoli- 

of  lei^islative  authority,  has  no  power  to  con-  dation  of  two  railroad  companies  are  one  thing, 

solidate  with  another  corporation:    Elkiiis   v.  and  the  purcliase  by  one  company  of  tlie  prop- 

Camdca  <{;  Atlantir  R.  R.  Co.,  36  N.  J.  Eq.  H;  erty  and  fr?.noliises  of  the  otiier  is  anotlicr." 
/nteni'Uional  R.  R.  v.  Bremond,  53  Tex.   9(5;        Pooling  contracts  of  railroads  are  uncon- 

Yorh  n.  R.  Co.  V.  Wlimns,  17  How.  30.    Under  a  stitutional:  See  Dinvpr  He.  R.  R.  Co.  v.  Atchl- 

statute  empowering  railroad  comnanies  to  con-  son  etc.  R.  R.,  13  F^d.  Rep.  030,  and  note, 
solidate,  one  railroad  cannot  assume  the  debts 

'474.    Slale  lands  granted  for  use  of  corporalions. 

Sec.  474.  There  is  granted  to  every  railroad  corporation  the  right  of  way  for 
the  location,  construction,  and  maintenance  of  their  necessary  works,  and  for 
every  necessary  adjunct  thereto,  over  any  swamp,  overflowed,  or  other  jmblio' 
lands  of  the  state  not  otherwise  disposed  of  or  in  use,  not  in  any  case  exceeding; 
in  length  or  width  that  which  is  necessary  for  the  construction  of  such  woz'ka 
and  adjuncts,  or  for  the  protection  thereof,  not  in  any  case  to  exceed  two  hun- 
dred feet  in  width. 

475.  Grant  not  to  embrace  town  hts. 

Sec.  475.  The  grants  mentioned  in  the  preceding  section  do  not  apply  to 
public  lands  of  the  state  within  the  corporate  limits  of  towns  and  cities,  or 
within  three  miles  thereof. 

476.  Wood,  i<tone,  and  earth  vuiij  he  taken  from  i^laie  lands. 

Sec.  47G.  The  right  to  take  from  any  of  the  lands  belonging  to  the  state, 
adjacent  to  the  works  of  the  corpox'ation,  all  materials,  such  as  wood,  stone,  and 
earth,  naturally  appurtenant  thereto,  which  may  be  necessary  and  convenient 
fur  the  original  construction  of  its  works  and  adjuncts,  is  granted  to  such  cor- 
porations. 

477.  Lands  to  revert  to  date,  when. 

Sec.  477.  If  any  corporation  receiving  state  lands  or  appurtenances  there- 
under is  dissolved,  ceases  to  exist,  is  discontinued,  or  the  route  or  line  of  its 
works  is  so  changed  as  not  to  cover  or  cross  the  lands  selected,  or  the  use  of  th« 
lands  selected  is  abandoned,  such  selected  lands  revert,  and  the  title  thereto  is 
reinvested  in  the  state  or  its  grantees,  free  from  all  such  uses. 

478.  Selections  made,  how  proved  and  certified  to. 

Sec.  478.  When  any  selection  of  the  right  of  way,  or  land  for  an  adjunct  to 
the  works  of  a  railroad  corporation,  is  made  by  any  corporation,  the  secretary 
theroof  must  transmit  to  the  surve^-or-general,  controller  of  state,  and  recorder 
of  the  county  in  which  the  selected  lands  are  situate,  a  plat  of  the  lands  so 
selected,  giving  the  extent  thereof  and  uses  for  which  the  same  is  claimed  or 
desired,  duly  veriiied  to  be  correct;  and  if  approved,  the  surveyor-general  must 
so  indorse  the  plat,  and  issue  to  the  corporation  a  permit  to  use  the  same, 

119 


ii  479-481  CORroRATlONS.  [Div.  I,  Part  IV, 

unless,  on  petition  propei'ly  presented  to  tbe  court,  a  review  is  had  and  such 
use  prohibited. 
The  live  pieceJing  aoctiona  arc  drawn  from  Stats.  1801,  017,  013,  sees.  20-22. 

CHAPTER  III. 

BUSINESS,  now  CONDUCTED. 

479.  Checks  to  be  affixed  to  all  baggage. 

Sec.  479.  A  check  must  be  affixed  to  every  package  or  parcel  of  baj^gage 
when  taken  for  transportation  by  any  agent  or  employee  of  such  railroad  cor- 
poration, and  a  duplicate  thereof  given  to  the  passenger  or  person  delivering 
the  same  in  his  behalf;  and  if  such  check  is  refused  on  demand,  the  railroad 
corporation  must  pay  to  such  passenger  the  sum  of  twenty  dollars,  to  be  recov- 
ered in  an  action  for  damages;  and  no  fare  or  toll  must  be  collected  or  received 
from  such  passenger,  and  if  such  passenger  has  paid  his  fare,  the  same  must  be 
returned  by  the  conductor  in  charge  of  the  train;  and  on  producing  the  check, 
if  his  baggage  is  not  delivered  to  him  by  the  agent  or  employee  of  the  railroad 
corporation,  he  may  recover  the  value  thereof  from  the  corporation. 

Checking  baggage. — The  baggn'^e  check  is  not  be  liable  for  baggage  of  passengers  unless 

jirlmaj'arie  eviileuce  of  the  receipt  by  the  rail-  checked,  such  notice  will  not  have  the  elTect  to 

road  company  of  the  bagga,'e:  DiU.v.  R.  U.  Co.,  excuse  the  company  where  it  has  received  the 

7  Rich.  L.  ir,8;  Daxnsx.  Mich.  etc.  R.  R.  Co.,  22  .baggage,  hut  i-cfused  to  check  it:  FreiniHin  v. 

III.  '278;  Cliicaiio  etc.  R.  Co.  v.  Clayton,  73  Id.  Neii;!oii,  3  E.  D.  Smith,  240.     Fur  aii  exreuiled 

(510;  Check  V.  Little  Miami  R.  Co.,  2  Disney,  examination  of  the  rights  and  liability  of  rail- 

233;  Davis  w  Cayuga  R.  Co.,  10  IIow.  Pr.  330;  I'oad  companies  with   respect  to  bag'^'age,  see 

At:'hison  etc.  R.  Go.  v.  Brewer,   20  Kan.  069.  Tiiompsou  ou  Carriers  of  Passengers,  510  ct  seq. 
If  the  coiiiiiauy  gives  public  notice  that  it  will 

480.  Annual  report  to  be  verified. 

Sec.  480.  Every  railroad  coi"poration  must  make  an  annual  report  to  the  sec- 
retary of  state,  or  other  officer  designated  by  law,  of  its  operations  for  each 
year,  ending  on  the  thirty-first  daj^  of  December,  verified  by  the  oaths  of  the 
president  or  acting  superintendent  of  operations,  the  secretary  and  treasurer  of 
Buch  corporation,  and  file  it  in  the  office  of  the  secretary  of  state,  or  such  other 
designated  officer,  by  the  twentieth  day  of  February,  which  must  state;  * 

1.  The  capital  stock,  and  the  amount  thereof  actually  j^aid  in; 

2.  The  amount  expended  for  the  purchase  of  lands  for  the  construction  of 
the  road,  for  buildings,  and  for  erg'nes'and  cars,  respectively; 

3.  The  amount  and  nature  of  its  indebtedaesB,  and  the  amount  due  the  cor- 
poration ; 

4.  The  amount  received  from  the  transportation  of  passengers,  property, 
mails,  and  express  matter,  and  from  other  sources; 

.  5.    The  amount  of  freight,  specifying  the  quantity  in  tons; 

6.  The  amount  paid  for  repairs  of  engines,  cars,  buildings,  and  other  expenses 
in  gross,  showing  the  curx'ent  expenses  of  running  such  road; 

7.  The  number  and  amount  of  dividends,  and  when  paid; 

8.  The  number  of  engine-houses  and  shop3,  of  engines  and  cars,  anJ  their 
character. 

481.  Duties  of  corporation. 

Sec.  481.  Every  such  corporation  must  start  and  run  their  cars,  for  the  trans- 
portation of  persons  and  property,  at  such  regular  times  as  thoy  shall  fix  by 
public  notice,  and  must  furnish  sufficient  accommodations  for  the  transporta- 
tion of  all  such  ptTiSsengers  and  property  as,  within  a  reasonable  time  previous 

120 


Title  III,  Chap.  TIL]  BUSINESS,  HOW  CONDUCTED.  §§  4S2-^S4 

thereto,  offer  or  is  offered  for  transportation,  at  the  place  of  starting,  at  the 
junction  of  other  raih'oads,  and  at  siding  and  stopping-jilaces  established  for 
receiving  and  discharging  way-passengers  and  freight;  and  must  take,  trans- 
port, and  discharge  such  passengers  and  property  at,  from,  and  to  such  places, 
on  the  due  ])ayment  of  tolls,  freight,  or  fare  therefor. 

Time  tables. — The   publication  of  a  time  p.nssenger  unprovided  in  tliis  particular  insists 

table  imposes  upon  the  company  the  duty  of  upon  riding  in  a  standing  ]Jo.siliou:    Davit  v. 

using  due  and  reasonable  care  to  arrive  at  and  Ka)i><aii  fir.  /'.  Co.,  53  Mo.  IWt. 

depart  from  stations  at  the  advertised  times.  Railronda  must  carry  all  proper  persona 

But  in   tlic  absence  of  a  special  contract  for  who  apply  to  be  carried  ami    who  t'lider  the 

transportation,  the  company  is  not  a  warrantor  requisite  fare.     Railroads  are  compulled  to  act 

of  the  arrival  or  departure  of  its  trains  at  the  as  common  carriers  for  tiie  conveyance  of  all 

precise  uioment  indicated.     Reasonable  care  to  passengers   and    property    that   may    come   to 

conform  to  the  ailvertised  tal)le  is  all  that  can  their  roatl  for  that  purpose:  Coufra  Costa  li.  R. 

be  required:  Gordon  v.  Manchester  etc.  I!.  Co.,  Co.  v.  .1/o.s.s-,  23  Cal.  323;  Wheeler  v.  S.  F.  <t  A. 

62  N.  II.  r>9G;  Jfrmi  v.  McCaiujhan,  32  Miss.  7?.  U.  Co.,  31  Id.  4G;  and  they  may,  by  virtue 

17.     Cliangts  made  in  the  time  tables  must  be  of  custom,  make  themselves  common  carriers 

advertised  with  the  same  publicity  as  the  tables  of  passengers  and  freight  beyond  tiinir  route: 

themselves:  Sears  v.  Eastern  li.  Co.,  14  Allen,  Id.;  Dnvis  v.  Kan.  li.  Co.,  53  Mo.  317;  Bass  v. 

433.  Chicaijo  R.  Co. ,  3G  Wis.  450.  40 1 ;  Wd!h  v.  Long 

Providing  aocommodatlons — Passengers  I.  R.  Co.,  34  N.  Y.  G70;  S.  C,  32  Barb.  399; 

must   be  accommodated   with  seats:    Da^.f  v.  and  see  sec.  483,  post.     The  train  nuist  stop  at 

Chicaijo  etc.  /!.  Co.,  3G  Wis.  450;  8.  C,  39  Id.  the  station  to  which  the  passenger's  ticket  runs 

63G;  42  Id.  r).J4;    Willis  v.  Lonif  I.   R.  Co.,  34  and  at  which  it  is  in  the  habit  of   stoi)ping: 

N.  Y.  G70;  but  it  is  a  waiver  of  the  breach  of  Cliira'io  etc.  R.  R.  Co.  v.  Fislier,  G6  111.  152. 

the  company's  contract  to  furnish  a  seat  if  the  Rules  and  regulations:  See  sec.  484,  post. 

482.  Corporation  to  paij  damages  for  refimal. 

Sec.  482.  In  case  of  refusal  by  such  corporation  or  their  agents  so  to  take 
and  transjiort  any  passengers  or  property,  or  to  deliver  the  same,  at  the  regular 
epijointed  places,  such  corporation  must  pay  to  the  party  aggrieved  all  damages 
■which  are  sustained  thereby,  with  costs  of  suit. 

483.  ln^i(U  room  for  passengers,  etc. — Passengers  on  freight-cars. 

Sec.  483.  Every  railroad  corporation  must  furnish,  on  the  inside  of  its  pas- 
senger-cars, sufficient  room  and  accommodations  for  all  passengers  to  whom 
tickets  are  sold  for  any  one  trip,  and  for  all  persons  presenting  tickets  entitling 
thetn  to  travel  thereon;  and  when  fare  is  taken  for  transporting  passengers  on 
any  baggage,  wood,  gravel,  or  freight  car,  the  same  care  must  be  taken  and  the 
same  responsibility  is  assumed  by  the  corporation  as  for  passengers  on  passen- 
ger-cars. 

Accommodations  to  be  furnished:  See  sec.  freight  train  and  paid  first-class  fare,  is  entitled 

481.  Hii'e.  ;u)<l  note  to  the  same  protection  as  if  lie  were  on  a  regii- 

Passengers  on  other  than  passenger-cars,  lar  train:  J>unn\.  Grand  Tnii,k  R.  /.'.  Co.,  58 

It  ii  coiiipctrnt-.  for  a  railroad  to  forbid  passen-  Me.  187.     Generally,  railway  companies  which 

gers  to  be  c.u  ried  on  freight  trains:  I lonstoii  He.  are  in  the  habit  of  carrying  passengers  on  their 

R.  Co.  V.  M'lrite,  49  Tc.x.  31;  Chica/fo etc.  R.  R.  freiglit  trains,  cither  without  any  rule  to  the 

Co.  V.  Uanddljdi,  53  III.  510;  ///.    R.  R.  Co.  v.  conti-ary  or  in  violation  of  tiieir  rules,  are  lia- 

Jokiison,  07  Id.  312;  Eaton  v.  Delau^are  etc.  R.  ble  for  their  safety,  subject  only  to  the  usual 

R.  Co.,  57  N.  Y.  382.  hazards  of   travel  by  sucli  trains:    Hazard  v. 

A  passenger  who  has  no  notice  of  any  rnle  to  Chicago  etc.  R.  R.  Co.,  1  Biss.  503;  Jlotulon  li. 

the  contrary,  and  has  entered  the  caboose  of  a  Co.  v.  Moore,  49  Tex.  31. 

484.  Printed  rules  and  regnhttums. 

Sec.  48-1.  Every  railroad  corporation  must  have  printed  and  conspicuously 
posted  on  the  inside  of  its  passenger-cars  its  rules  and  regulations  regarding 
fare  and  conduct  of  its  passengers;  and  in  case  any  passenger  is  injured  on  or 
from  the  platform  of  a  car,  or  on  any  baggage,  wood,  gravel,  or  freight  car,  in 
violation  of  such  printed  regulations,  or  in  violation  of  positive  verbal  instruc- 
tions or  injunctions  given  to  such  passenger  in  person  by  any  officer  of  the  train, 
the  corporation  is  not  responsible  fur  damages  for  such  injuries,  unless  the 
corporation  failed  to  comply  with  the  provisions  of  the  preceding  section. 

121 


§§  485,  486  COr.PORATlONS.  [Div.  I,  Part  IV, 

The  five  preceding  sections  were  drawn  from  see  the  note   to  Commomopalth  v.  Porocr,   41 

Stats.  18G1,  ()-2t,  GJf),  sees.  44-4(),  48.  Am.   Dec.  4G5,  471,  and  the  Dote  to   //fill  v. 

Rules  and   regulations. — For   recent  and  Mcmphit  etc.  R.  Co.,  l.j  F»d.  11' p.  7u,  09. 

vnluablu  a"iieh:3  \\\nn\  tlie  suhjcct  of  regula-  Rules  and    regulations    by    carriers   of 

tioiia  which  railroad  companies  may  make  re-  pasaengers,   generally:    See  pout,  sec.  2186, 

spectiug  passengers  and  others  not  employees,  and  note. 

485.  Friwea — Damages. 

Sec.  485.  Railroad  corporations  must  make  and  maintain  a  gccd  and  sufRcien !; 
fence  on  eitber  or  both  sides  of  their  track  and  property.  In  case  tuey  do  not 
make  and  maintain  such  fence,  if  their  engine  or  cars  shall  kill  or  maim  any 
cattle  or  other  domestic  animals  upon  their  line  of  road  which  passes  through 
or  along  the  property  of  the  owner  thereof,  they  must  pay  to  the  owner  of  such 
cattle  or  other  domestic  animals  a  fair  market  price  for  the  same,  unless  it 
occurred  through  the  neglect  or  fault  of  the  owner  of  the  animal  so  killed  or 
maimed.  Railroad  corporations  paj'ing  to  the  owner  of  the  land  through  or 
along  which  their  road  is  located  au  agreed  price  for  making  and  maintaining 
such  fence,  or  paying  the  cost  of  such  fence  with  the  award  of  damages  allowed 
for  the  right  of  way  for  such  railroad,  are  relieved  and  exonerated  from  all 
claims  for  damages  arising  out  of  the  killing  or  maiming  any  animals  of  persona 
who  thus  fail  to  construct  and  maintain  such  fence;  and  the  owners  of  such 
animals  are  responsible  for  any  damage  or  loss  which  may  accrue  to  such  cor- 
poration from  such  animals  being  upon  their  railroad  track,  resulting  from  the 
non-construction  of  such  fence,  unless  it  is  shown  that  such  loss  or  damage 
occurred  through  the  negligence  or  fault  of  the  corporation,  its  officers,  agents, 
or  employees. 

Stats.  1761,  62.3,  sec.  40.  not  fenced  as  is  required  by  this  section:  TTynea 
Fencing  railroad  track — At  one  period  of  v.  S.  F.  cfc  N.  P.  R.  R.,  3  West  Coast  Ilep  99. 
the  state's  history  railroad  companies  were  not  101.  For  an  instance  of  the  lial)ility  of  the 
required  to  fence  in  their  track:  Fic/imond  v.  lessee  of  a  railroad  to  respond  in  damages  for 
S.  V.  U.  R.  Co.,  18  Cal.  351.  But  the  act  of  kdling  cattle  on  unfenced  porl ions  of  its  road, 
1861,  svpra,  upon  which  the  above  section  of  see  Foit/aiuf  v.  S.  P.  R.  Co.,  51  Cal.  64,5.  The 
the  code  is  based,  expressly  provided  that  this  owner  of  stock  is  not  guilty  of  contributory 
should  be  done,  and  has  been  construed  to  nei^;ligence  in  turning  stock  into  a  field  which 
mean  by  a  sufficient  fence,  the  standanl  of  lie  Ihiows  the  I'ailroad  had  imt  fenced.  The 
lawful  fences:  Eiirljht  v.  .V.  F.  <t  .S'.  J.  R.  R.  owner  cannot  be  dispossessed  by  the  non-com- 
Co.,  33  Id.  230.  If  the  company  do  not  fence  pliance  with  the  statute  of  the  raihoad  com- 
the  line  of  their  road  where  it  i)asses  through  a  pany:  McCoy  v.  Cal.  P.  R.  R.,  40  Id.  032; 
field  where  live-stock  of  the  owner  are  running,  I'iorce  on  Railroads,  408,  409. 
and  some  of  the  latter  stray  upon  the  track  An  adjoining  owner  who  has  received  from 
and  are  killed,  these  facts,  unexplained,  make  the  company  compensation  for  maintaining 
a  prima  fane  case  of  negligence  against  the  fences  himself  cannot  recover  from  them  for 
company:  McCoy  v.  Cal.  /*.  R.  /?.,  40  LI.  532.  t!ie  killing  of  an  animal  that  escapes  over  such 
Anil  the  company  will  be  liable  for  injuries  fences  from  his  land:  Tene  IlaiUe  R.  /'.  Co.  v. 
both  to  a  horse  and  its  rider  done  witiiout  neg-  Sml  h,  16  Ind.  102;  Talmadje  v.  Rensselaer  R, 
ligeuce  of  the  rider  on  a  portion  of  the  road  R.  Co.,  13  Barb.  493. 

486.  Bell  and  other  regulations  of  trains. 

Sec.  48G.  A  bell,  of  at  least  twenty  pounds  weight,  must  be  placed  on  each 
locomotive  engine,  and  be  rung  at  a  distance  of  at  least  eighty  rods  from  the 
place  where  the  railroad  crosses  any  street,  road,  or  highway,  and  be  k(pt  ring- 
ing until  it  has  crossed  such  street,  road,  or  highway;  or  a  steam-whistle  must 
be  attached,  and  be  sounded;  except  in  cities,  at  the  like  distance,  and  be  kept 
sounding  at  intervals  until  it  has  crossed  the  same,  under  a  penalty  of  one  imn- 
dred  dollars  for  every  neglect,  to  be  paid  by  the  corporation  operating  the 
railroad,  which  may  be  recovered  in  an  action  prosecuted  by  the  disti'ict  attor- 
ney of  the  proper  county,  for  the  use  of  the  state.  The  corporation  is  also 
liable  for  all  damages  sustained  by  any  person,  and  caused  by  its  ioeo.iiotives, 
train,  or  cars,  when  the  provisions  of  this  section  are  not  complied  with. 

122 


Title  III,  Chap.  III.] 


BUSINESS,  now  CONDUCTED. 


§§  4S7^S9 


The    engine-bell   must  he  rung  at  cross-  especially  when  near  whore  a  puMic  highway 

ings;  an  I  it  w  ill  1)0  p-eanmed  tliixt  it  was  not  cross'iil  t'le  track,  see  JLeLi  v.  H.  P.  I',  li.  Co., 

done  wiieii  the   record  does   not  show  tlie  con-  50  Cal.  513. 

trary:  S'rovij  v.  .S'.  d-  P.  U.   R.   Co.,  GO  Cal.  Palliiro  to  rin^  bell  is  a  mi.sdemeanor; 

32G.     Th;.t  it  is  negligf-nce  not  to  ria_'  the  hell  Pen.  Code,  sec.  390. 
or  blow  the  whistle  to  warn  people  on  the  track, 

487.    Passenger  refusing  ly  pay  fare. 

Sec.  487.  If  any  passenger  refuses  to  pay  liis  fare,  or  to  exhibit  or  surrender 
his  ticket,  when  reasonably  requested  so  to  do,  the  conductor  and  employees  of 
the  corporation  may  put  him  and  his  baggage  out  of  the  cars,  using  no  uaneces- 
sar}'  force,  at  any  usual  stopping-place,  or  near  any  dwelling-house,  on  stop- 
ping the  train. 

Refusing  to  pay  fare:  See,  generally,  sees. 
2187  et  se(j.,  post.  A  passcni^er  who  rcfiisea 
to  show  or  surrender  his  ticket,  or  jiay  his 
fare,  becomes  a  t:  espasser,  and  ui;iy  be  ejected: 
Ohio  tic.  li.  R.  Co.  V.  Mukliixj,  30  111.  9;  Chi- 
cago etc.  R.  R,  ( o.  V.  Roherts,  40  Id.  503; 
State  V.  Overtoil,  24  N.  J.  L.  435.  The  con- 
ductor, before  ejecting  a  passenger  for  non- 
payment ot  fare,  must  use  reasonable  diligence 
to  ascertain  whetlier  lie  lias  a  proper  ticket: 
Qiiujli'i/  V.  C.  R.  n.  Co.,  11  Nev.  350.  And  if 
tlie  passenger  assures  the  conductor  that  he 
lias  a  ticket,  and  beginning  to  search  for  it,  is 
ejected  before  he  has  had  reasonable  time  to 
find  it,  the  company  will  be  liable:  Curtis  v. 
Grand  T.  R.  Co.,  12  U.  C.  C.  P.  S9;  J/ff/Vcs  v. 
N.  Y.  etc.  n.  R.  Co.,  38  Conn.  557.  The  con- 
ductor may  refuse  to  accept  tiie  fare  after  the 
passenger  has  been  ejected,  unless  it  be  at  a 
regular  station,  and  may  refuse  to  admit  him 
again  upon  the  train:  (J'Brieii  v.  Boston  etc.  R. 
li.  Co.,  15  Cray,  20;  A'eL-ion  v.  L.  I.  Jt.  R.  Co., 
7  Hun,  140;  O' ilrini  v.  N.  Y.  R.  li.Co.,  80 
N.  Y.  236.  The  conductor  is  not  required  to 
accept  fare  even  before  ejection,  if  the  train  has 
been  stopped  to  put  the  pussengcr  off:  People 
V,  Jlllsoii,  3  i*arli.  Cr.  234;  Slo7ie  v.  Chicago  etc, 
R.  R.  Co.,  47  Iowa,  82.  Nor  can  the  passenger 
save  himself  by  showing  his  ticket  after  tlie 
train  has  been  stojipcd  to  eject  him:  Ilibbard 
V.  N.  Y.  R.  Co.,  15  N.  Y.  455. 


But  if  a  passenger  is  ejected  at  a  regular  sta- 
tion, he  may  re-enter  the  car  upon  tendering  a 
ticket  or  payment  of  fare:  Xelson  v.  L.  I.  R. 
R.  Co.,  7  llun,  140.  Ho  must,  however,  pay 
fare  fioni  the  station  from  wliich  he  originally 
rode:  Sloiiev.  Chicago  R.  /«'.,  4/  Iowa,  82.  The 
conductor  cannot  retain  the  ticket  j>roduced 
a]ul  still  eject  the  traveler,  oa  tlie  ground  that 
the  ticket  is  not  good:  Va>ikirk  v.  J^enn,  R.  R. 
Co.,  70  Pa.  St.  06.  Yet  wiiere  money  is  ten- 
dered which  is  not  sufficient,  the  conductor 
nia^'  keep  it  to  pay  for  the  distance  trav- 
eled, and  sUll  eject  the  passenger,  although 
he  tender  full  fare,  after  the  train  is  stopped: 
Hoffman  v.  The  D.  <t  N.  R.  R.  Co.,  52  Iowa, 
342. 

No  unnecessary  violence  must  be  used:  Kline 
V.  C.  P.  R.,  37  Cal.  400;  :Slale  v.  Ros.t,  26  N. 
J.  L.  224. 

In  the  absence  of  statute  providing  that  pas- 
sengers shall  be  ejected  for  non-payment  of 
fare  only  at  regular  stations,  some  of  the  cases 
hold  that  he  may  bo  put  off  at  a  distance  from 
any  station,  if  he  is  not  thereby  ex poscil  to  peril: 
Great  iVcitern  R.  Co.  v.  Miller,  10  Mich.  305; 
McCture  v.  Philadelphia  R.  R.  Co.,  34  Md. 
532.  Others  hold  differently:  Maples  v.  N. 
Y.  R.  R.  Co.,  38  Conn.  557.  .And  see  gene- 
rally note  to  Comma II Wfalth  v.  Poirer,  41  Am. 
M>c<!.  476,  and  note  to  Hall  v.  Memphis,  15  Fed. 
Hep.  09. 


488.  Officers  to  wear  badge. 

Sec.  488.  Every  conductor,  baggage-master,  engineer,  brateman,  or  other 
employee  o'  any  railroad  corporation,  employed  on  a  passenger  train  or  at  sta- 
tions for  passengers,  must  wear  upon  his  hat  or  cap,  or  in  some  conspicuous 
place  on  the  breast  of  his  coat,  a  badge,  indicating  his  office  or  station,  and  the 
initial  lettei*3  of  the  name  of  the  corporation  by  which  he  is  employed.  No 
collector  or  conductor,  without  such  badge,  is  authorized  to  demand  or  to  receive 
from  any  passenger  any  fare,  toll,  or  ticket,  or  exercise  any  of  the  powers  of 
his  offi(re  or  station;  and  no  other  officer  or  employee,  without  such  badge,  has 
any  authority  to  meddle  or  interfere  with  any  passenger  or  property. 

489.  Rates  of  charges. 

Sec  489.  All  railroad  corporations  must  fix  and  publish  their  rates  of  charges 
for  freightage  and  fares  from  one  depot  to  another,  or  their  various  lines  of  road 
in  this  state,  graduated  as  follows: 

1.  One  rate  of  charges  per  luilo  for  a  distance  of  one  hundred  milos  or  over; 

2.  One  rate  for  a  distance  of  seventy-fiv«.  and  less  than  one  hundred  miles, 
charging  not  exceeding  ten  per  cent  per  mile  iioi-e  than  the  first  I'ate; 

123 


8§  490,  491  COIirORATIONS.  [Div.  I,  Part  IV, 

3.  One  rate  for  a  distance  of  fifty  and  less  than  seventy-five  miles,  charging 
not  exceeding  fifteen  per  cent  per  mile  more  than  the  first  rate; 

4.  One  rate  for  a  distance  of  twenty-five  and  less  than  fifty  miles,  charging 
not  exceeding  twenty  per  cent  per  mile  more  than  the  first  rate; 

5.  One  rate  for  a  distance  not  exceeding  twenty-five  miles,  charging  not 
exceeding  twenty-five  per  cent  per  mile  more  than  the  first  rate. 

But  in  no  case,  nor  in  any  class  of  charges  hereinbefore  named,  shall  Any 
railroad  corporation  charge  or  receive  more  than  ten  cents  p3r  mile  for  each 
passenger,  nor  fifteen  cents  per  mile  for  each  ton  of  freight  transported  on  its 
road.  For  every  transgression  of  these  limitations  the  corporation  is  liable,  to 
the  J)arty  sufTering  thereby,  treble  the  entire  amount  of  fare  or  freightage  so 
charged  to  such  party.  In  no  case  is  the  corporation  requii'ed  to  receive  less 
than  tweny-five  cents  for  any  one  lot  of  freight  for  any  distance. 

"The  three  j)receding  sections  are  founded  seuger  fare,  and  freightage  i-s  graded  something 
on  Slats.  ISOl,  CJJ,  soco.  40,-31.  The  provision  like  the  provisions  of  this  sccLion:"  Comrais- 
fixing  grades  of  charges  is  in  aocordanee  with     sinners'  note. 

the  statutes  of  the  states  of  M.iine,  Missouri,         Rates  of  charges  on  streat-railroad.s:  Sec. 
Kansas,  and  others,  aud  frecpient  suggestions     501,  jiod. 

in  this  state.      In  Kansas   and    Missouri,  six         Power  of  railroad  corporations  to  charge  tolls 
cents  per  mile  is  the  maximum  charge  for  pas-     or  compensation:  Sec.  435,  subd.  S. 

490.  PaHnenrjpr  tickets,  how  issued,  and  to  be  good  for  six  months. 

Sec.  400.  Every  railroad  corporation  must  j)i'ovide,  and  on  being  tendered 
the  fare  therefor,  fixed  as  provided  in  the  preceding  section,  furnish,  to  every 
person  desiring  a  passage  on  their  passenger-cars  a  ticket  which  entitles  the 
purchaser  to  a  ride,  and  to  the  accommodations  provided  on  their  cars,  from 
the  depot  or  station  where  the  same  is  purchased  to  any  other  depot  or  station 
on  the  line  of  their  road.  Every  such  ticket  entitles  the  holder  thereof  to  ride 
on  their  pas«enger-cars  to  th(;  station  or  depot  of  destination,  or  any  interme- 
diate station,  and  from  any  intermediate  station  to  the  depot  of  destination 
designated  in  the  ticket,  at  any  time  within  six  months  thex'eafter.  Any  corpo- 
ration failing  so  to  provide  and  furnish  tickets,  or  refusing  the  passage  which 
the  same  calls  for  when  sold,  must  pay  to  the  person  so  refused  the  sum  of  two 
hundred  dollars. 

Tickets. — For  a  collection  of  the  authorities  time  in  which  a  ticket  may  he  used,  see  Com- 
upon  tlie  regulations  of  a  company  limiting  the     jnontveaUh  v.  Power,  41  Am.  Dec.  479,  in  note. 

491.  Character  of  iron  rail  to  be  ust'd. 

Sec.  491.  All  railroads,  other  than  street- railroads  and  those  used  exclusively 
for  carrying  freight  or  for  mining  purposes,  built  by  corporations  organized 
under  this  chapter,  must  be  constructed  of  the  best  quality  of  iron  or  steel 
rails,  known  as  the  T  or  H  rail,  or  othar  pattern  of  equal  utility.  [Amend- 
vient,  approved  Ilarch  30, 1874;  Ainnidmen/s  1873-4,  212;  took  effect  July  1, 1874.] 

An  Act  to  enable  rnilroml  companies  ti  com/il^'te  their  railroads. 
[Approved  Aprn  1,  1^78;  1377-8,  9i4.] 
Authorizing}  cojisfrurtoon  of  railroads. 

SKcrioN'  1.  Every  railroad  company  hm-etofore  organized  under  the  laws  of  this  state,  and 
which  l-.as  co-.:pleti(l  a  portion  of  its  road  p:-ior  to  tlu  passage  of  this  act,  is  hereby  auLhorized 
and  emnovverei'  to  complete  its  roail  as  described  in  its  articles  of  incoi-poi'ation,  notwiihst  aid- 
ing it  may  not  have  bogun  the  construction  of  i;;s  ro.id  within  two  years  after  iiiing  its  original 
articles  of  iac  iriioratiou,  and  notwithstanding  it  nuiy  not  have  completed  aud  pat  in  operation 
five  miles  of  it^  road  eacli  year  tlicreafter. 

Sec  2.     This  act  shall  take  effect  from  aud  after  its  passage. 

AnActpermiUiii'j(tiidaiithoriziiiijrailioa>/nil  o'V--  corporation-^,  orr/anized  under  th"   laivs  of 
this   tatp.  or  of  aaj  Mate  or  terrilori/  of  the  United  SUi'ei  of  America,  or  any  act  of  conijresa  of 
the  United  S'ales  of  America,  to  do  husi'ie-s.^  in  l.'il^  state  on  eijnal  terms. 
lApproved  April  3,  16S0;  USO,  21  (Ban.  ed.  1U).1 

Equal  terms  for  <dl  railiony  corpora/ions. 

Section  1.     Tliat  every  railway  corpoiation,  ami  every  corporation  organized  for  the  purpose 

124 


Title  III,  Chap.  III.]  BUSINESS,  HOW  CONDUCTED.  <5  401 

of  carrying  freights  or  passengers,  which  has  or  may  be  created  or  organized  under  or  bj*  rirtuo 
of  any  of  th,-  law s  of  any  state  or  territory  of  the  United  States  of  America,  or  any  act  of  con- 
gress of  llie  Uuiteil  States  of  Aineiica,  may  liereafter  builil  railways,  exercise  the  liglit  of  emi- 
nent (I'lmaln,  and  do  or  transact  any  other  business  which  such  corporation  might,  if  the  same 
had  been  created  or  organized  under  or  by  virtue  of  the  laws  of  tliis  state,  having  the  same 
rights,  privileges,  and  immunities,  and  suhject  to  the  same  laws,  penalties,  and  obligations,  and 
burdens,  as  thoniji  said  corporations  had  been  created  by  or  organized  under  tlie  laws  of  the 
state  of  California. 
Ha'lroad  corporations  may  contract  with  one  another. 

Sec.  2.  iluihoad  corporations  doing  ))usine33  in  this  state  and  organized  under  any  law  ol 
this  state,  vc  the  United  States,  or  of  any  state  or  territory  thereof,  have  jiower  to  enter  into 
contracts  w  ith  one  another,  whereby  tlie  one  may  lease  of  the  other  the  whole  or  any  part  of  its 
railroad,  or  ni;iy  acquire  of  the  other  the  right  to  use,  in  common  with  it,  the  whole  or  any  part 
of  its  raih'jad. 

Sec.  3.     AH  laws  inconsistent  with  this  act  are  hereby  repealed. 

An  Act  to  compel  railroad  corporations,  or  indlvidiiaU  owitin/j  railroadi,  to  operate  their  roculs. 

[Approved  April  15,  1830;  1880,  43  (Ban.  ed.  205).] 
Opfration  of  railroads,  or  forfeiture. 

Section  1.  From  and  after  the  completion  of  any  railroad,  or  the  completion  of  such  portion 
thereof  caj  able  of  being  operated,  it  bhall  be  the  duty  of  the  corjjoratiou,  or  individual  owning 
the  same,  to  ojierate  it;  and  upon  the  failure  of  said  corporation  or  individual  so  owning  said 
road  to  keep  the  same,  or  any  part  thereof,  in  full  operation  for  the  period  of  six  months,  its  or 
his  light  to  operate  tiie  same  in  whole  or  in  part,  as  the  case  may  be,  shall  be  forfeited;  and  the 
lands  occuj.ied  for  the  purposes  of  its  or  his  road,  so  far  as  the  same  shall  not  be  operated,  shall 
revert  to  t'e  original  owners,  or  their  successors  in  interest.  A  railroad  shall  be  ileemed  to  be 
in  full  operation  v.licn  one  passenger  train,  or  one  mixed  train,  is  run  over  it  once  each  day  iu 
each  direction,  and  a  sufficient  number  of  freight  trains  to  accommodate  the  traffic  on  said  road. 
Prevention  if  ojieration. 

Sec.  2.     This  act  shall  not  be  construed  to  apply  to  a  case  where  the  operation  of  tlie  road  13 

Erevciited  by  tiie  act  of  God,  nor  to  a  case  where  the  operation  of  said  road,  together  with  its 
ranch  or  trunl;  lines,  does  not  yield  income  sulficiont  to  defray  the  expenses  of  maintaining 
and  operating  the  same  iu  connection  wich  its  said  branch  or  trunk  lines. 
Duly  <f  railroail  commismonera. 

Sci'.  3.     Tlie  railroad  commissioners  of  the  state  of  California  shall  have  the  power  to  examine 
and  determine  the  question  whether  said  road,  together  with  its  said  branch  and  trunk  lines, 
does  or  does  not  yieul  income  sufficient  to  operate  the  same. 
Skc.  4.     This  act  shall  take  effect  immediately. 

An  Act  (0  create  the  office  of  commissioner  of  transportation,  and  to  define  its  powmrand  duties; 

to  fix  the  mazimnm  chari/es  for  transport i>i;j  pas^eixjers  and  freights  on  certain  railroads;  and 

to  prevent  extortion  and  unjust  d<\scri/iiination  t/iereon. 

[Approved  April  1,  1878;  1877-«,  9G9.] 

This  act,  which  repealed  the  previous  act  of  similar  character  of  April  .3,  1S7G,  Stats.  1S75-6, 
783,  was  .superseded  Ijy  the  operation  of  the  constitution  adopted  iu  May,  ISTD.  The  following 
act  of  ISSO  was  intended  to  put  the  provisions  of  the  constitution  iu  reference  to  the  subject  into 
operation. 

An  Act  to  organize  and  define  the  powers  of  the  hoard  of  railroad  commissioner^. 
[Approved  April  IJ,  1880;  1880,  io  (Ban.  e^  207).] 
"Board  of  railroad  commisKioners." 

SiXTioN  I.  The  three  jiersons  elected  railroad  commissioners,  pursuant  to  the  pro\nsion3  of 
section  twenty-two  of  article  twelve  of  the  constitution  of  this  state,  constitute,  and  shall  be 
known  iuid  designated  as,  the  "  board  of  railroad  commissioners  of  the  state  of  Ca.ifornia."  They 
shall  have  power  tn  elect  one  of  their  number  president  of  said  lioard,  to  appoint  a  secretary,  to 
appoint  a  baiiiff,  who  shall  perform  the  duties  of  j.mitor;  also,  to  employ  a  stenographer,  when- 
ever they  may  deem  it  expedient. 
Salarii'x — F.xjientieft. 

Si.r.  2.  Tiie  salary  of  each  commissioner  shall  be  four  thousand  dollars  per  annum;  tlie  sal- 
ary of  the  secretary  shall  be  twenty-four  hundred  dollars  per  annum;  the  salary  of  the  bailitf 
shall  be  twelve  luiiidred  dollars  jier  annum,  sucii  salarios  to  be  pai  1  by  the  state  of  California  in 
the  .same  manner  as  the  salaries  of  state  oiliecrs  are  pai  I.  The  stenographer  shall  receive  a  rea- 
sonable compensation  for  his  services,  the  amount  to  be  fixed  by  tlic  state  lioaid  <if  examiners, 
and  paid  by  the  state.  Said  commissioners,  anil  the  [lersons  in  their  oiiieial  employment  when 
traveling  in  the  performance  of  their  official  duties,  shall  have  their  traveling  expenses  other 
than  transportation  paid,  the  amounts  to  bo  passeil  on  liy  the  state  board  of  cxamiuers.  and  paid 
by  the  state.  Said  board  of  railroad  commissioners  shall  be  allowed  one  hundred  dollars  per 
month  for  oHice  rent,  and  fifty  dollars  per  monti-.  for  fuel,  lights,  postage,  cx[>ressagc,  subscrip- 
tion to  publieations  upon  the  subject  of  transportation,  and  other  incidental  expenses,  to  be  paid 
by  the  state;  proi^ided,  tiiat  all  moneys  remaining  uncxpendcil  at  the  expiration  of  each  fiscal 
year  shall  be  leinrned  to  the  state  treasury'.  Sai  1  board  is  furtlier  authorized  to  expend  not  to 
exceed  four  hundred  dollars  for  office  furniture  and  fixtures,  to  lie  paid  by  the  st.ite.  The  state 
shall  furnish  said  board  with  all  necessary  stationery  and  printing,  upon  requisitions  signed  by 
the  president  of  said  board. 

125 


fi  491  COEPORATICNS.  Piv.  I,  I  ,kt  IV, 

Free  paaxcs. 

Sec.  3.  Said  commissioners,  and  the  persons  in  their  official  employment,  shall,  when  »n  the 
performance  of  their  oLficial  duties,  have  tlie  ri^Iit  to  pass  free  of  charge  on  all  railroads,  steam- 
ers, ships,  vessels,  and  boats,  and  on  all  vehicles  employed  in  or  by  any  railroad  or  other 
transportation  company  engaged  in  the  transportation  of  freight  and  passengers  within  this  state. 

Duties  of  (ittorne)i-(jeneral  and  district  attoriiei/. 

Sec.  4.  It  shall  be  the  duty  of  the  attoincy-general,  and  the  district  attorney  in  evory  count  j^, 
on  request  of  said  board,  to  institute?  and  prosecute,  and  to  appear  and  to  defend  for  said 
board,  in  any  ami  all  suits  and  proceedings  wliic!i  they  or  cither  of  tliem  shall  be  refjueste  1  by 
said  board  to  institute  and  prosecute,  and  to  appear  in  all  suits  and  proceedings  to  which  the 
board  is  a  party,  shall  have  precedence  over  all  other  business  exije[)t  criminal  business;  pro- 
vided, that  said  board  shall  have  the  power  to  employ  additional  counsel  to  assist  said  attorney- 
general,  or  said  district  attorney,  or  otherwise,  when  in  their  judgment  the  exigencies  of  the 
case  may  so  require.  The  fees  and  expenses  of  said  additional  counsel  to  bo  determined  by  the 
Btate  boaid  of  examiners,  and  paid  by  the  state. 
Location  of  office. 

Sec.  5.  The  office  of  said  board  shall  be  in  the  city  of  San  Francisco.  Said  office  shall  always 
be  open  (legal  holidays  and  non-judicial  days  excepted).  The  board  shall  hold  its  sessions  at 
least  once  a  month  in  said  city  of  San  Francisco,  and  at  such  other  times  and  suoli  other  jjlaces 
•within  this  state  as  may  be  expedient.  The  .sessions  of  said  board  shall  be  public,  and  when 
held  at  a  place  other  than  the  office  in  the  city  of  San  Francisco,  notice  thereof  shall  be  pub- 
lished once  a  week  for  two  successive  weeijs  before  the  commencement  of  such  session,  in  a 
newspaper  published  in  the  county  wliore  such  session  is  to  be  held;  and  if  no  newspaper  is  pub- 
lished in  such  county,  then  in  a  newspaper  published  in  an  adjacent  county.  Such  i)ublication 
to  be  paid  by  the  state  in  the  manner  as  other  publications  authorized  by  law  are  paid. 
Seal. 

Sec.  C.     The  board  shall  have  a  seal,  to  be  devised  by  its  members,  or  a  majority  thereof. 
Such  seal  shall  have  the  following  inscription  surrounding  it:  "Railroad  Commission,  State  ol 
California."   The  seal  shall  be  affixed  only  to,  first,  writs;  second,  authentications  of  a  copy  of  a 
record  or  other  proceeding,  or  copy  of  a  document  on  file  in  the  office  of  said  commission. 
Powers  of  board. 

Sec.  7.  The  process  issued  by  said  board  shall  extend  to  all  parts  of  the  state.  The  board 
shall  have  power  to  issue  writs  of  summons  and  of  subpoena  in  like  m  inner  as  courts  of  record. 
The  summons  shall  direct  the  defendant  to  appear  and  answer  within  lifteen  d:'y3  from  the  day 
of  service.  The  necessary  process  issued  by  the  board  may  be  served  in  any  counly  in  this  state 
by  the  bailiff  of  the  board,  or  by  any  person  authorized  to  serve  process  of  courts  of  record. 
Powers  of  officers. 

Sec.  8.  The  secretary  of  said  board  shall  issue  all  process  and  notices  required  to  be  issued, 
and  do  and  perform  such  other  duties  as  the  board  may  prescribe.  The  baiiilf  shall  preserve 
order  during  the  sessions  of  said  board,  and  shall  have  authority  to  make  arrests  for  disturb- 
ances, lie  shall  also  have  authority,  and  it  shall  be  his  duty,  to  serve  all  process,  orders,  and 
notices  issued  by  said  board,  when  directed  by  the  president,  and  make  return  of  the  same. 

Complaints  and  decisions  to  he  in  wrilintf. 

Sec.  0.     All  complaints  before  said  board  shall  be  in  writing  and  under  oath.     All  decisions 
of  said  board  shall  be  given  in  writing,  and  t'lo  grounds  of  the  decisions  shall  be  stated.     A  rec- 
ord of  the  proceedings  of  said  board  shall  be  kept,  and  the  evidence  of  persons  appearing  before 
said  board  shall  be  preserved. 
Whr'H  may  sue. 

Sec.  10.  Whenever  the  board  shall  render  any-decision  within  the  pnrviewand  pursuant  to 
the  authority  vested  in  said  board  by  section  twenty-two  of  article  twelve  of  the  constitution, 
Baid  board,  or  the  person,  copartnersliip,  comp.iny,  or  corporation  making  the  comi)laint  upon 
which  such  decision  was  rendered,  is  authorized  to  sue  upon  such  decision  in  any  court  of  com- 
petent jurisdiction  in  this  state. 
JRates. 

Sec.  11.  Whenever  said  board,  in  the  discharge  of  its  duties,  shall  establish  or  adopt  rates 
of  charges  for  the  transportation  of  passengers  and  freight,  pursuant  to  the  provisions  of  the 
constitution,  said  board  shall  servo  a  printed  schedule  of  such  rates,  and  of  any  changes  that 
may  be  made  in  such  rates,  upon  the  pers(m,  copartnership,  company,  or  corporation  affected 
thereby;  and  upon  such  service,  it  shall  be  the  duty  of  such  person,  copartnership,  company,  or 
corporation  to  immediately  cause  copies  of  the  same  to  be  posted  in  all  its  otEces,  station-houses, 
warehouses,  and  landing-offices  affected  by  such  rates,  or  change  of  rates,  in  suc!i  manner  as  to 
be  accessible  to  public  inspection  during  usual  business  hours.  Said  buarJ  shall  also  make  such 
further  publication  thereof  as  they  shall  deem  proper  and  necessary  for  the  public  good.  If  the 
party  to  be  served,  as  hereinbefore  provided,  lie  a  corporation,  such  service  niay  be  made  upon 
the  president,  vice-president,  secretary,  or  managing  agent  thereof,  and  if  a  copartnership,  upon 
any  partner  thereof.  The  rates  of  charges  cstablisbed  or  adopted  by  said  board,  pursuant  to  the 
constitution  and  this  act,  shall  go  into  force  and  effect  on  the  twentieth  day  after  service  of  said 
schedule  of  rates,  or  changes  in  rates,  upon  the  person,  copartnership,  company,  or  corporation 
affected  thereby,  as  hereinbefore  provided. 
Jurisdiction^ 

Sec.  12.  When  jurisdiction  is,  by  the  constitution,  conferred  on  the  board  of  railroad  com- 
missionera,  jaUl  the  mpAns  necessary  to  carry  it  into  nfCect  are  also  coaferred  on  said  board,  and 

126 


Trri.E  rV.]  STREET-RAILROAD  CORPORATIONS.  §  497 

when  in  the  exercise  of  jurisdiction  within  the  purview  of  the  authority  conferred  on  said  board 
by  the  constitution  the  coiirr.e  of  proceeiHng  he  not  specifically  pointed  out,  any  suitable  process 
or  mode  of  proc(e<ling  may  De  adopted  by  the  board  which  may  appear  most  coufurmuble  to  the 
spirit  of  the  constitution. 
Demand  from  Iranx-portation.  commiasiover,  imder  act  of  April  1,  1S7S. 

Sec.  13.  The  said  board  shall,  iriiniediafely  after  entering  upon  the  performance  of  its  duties, 
demand  and  receive  from  the  trausj)ortatioii  commissioner,  appointed  under  an  act  approved 
April  first,  eighteen  hundred  and  seventy  eight,  section  nine,  chapter  one,  all  public  property 
belonging  to  the  otfice  of  said  transportation  commis^sioncr,  in  his  possession,  or  under  his  con- 
trol, and  it  is  hereby  made  his  duty  to  deliver  the  same  to  the  said  board. 
Definition  of  terv^  " transport'ition  companies." 

Skc.  14.     Tlie  term  "transportation  coin])anie3 " sliall  be  deemed  to  mean  and  include: 

1.  All  companies  owning  and  operating  railroads  (other  than  street-railroads)  within  this 
state; 

2.  All  companies  owning  and  operating  steamships  engaged  in  the  transportation  of  freight 
or  passen,::ers  from  and  to  port.s  within  this  state; 

3.  All  companies  owning  and  operating  steamboats  used  in  transporting  freight  or  passengers 
upon  the  rivers  or  inland  waters  of  this  state. 

The  word  "  company,"  as  used  in  this  act,  shall  be  deemed  to  mean  and  include  corporations, 
associations,  partnerships,  trustees,  agents,  as.signees,  and  individuals.  Whenever  any  railroad 
company  owns  and  operates  in  connection  with  its  road,  and  for  the  purpose  of  transporting  its 
cars,  freijrht,  or  ]iassenger3,  any  steamer  or  other  water-craft,  sucli  steamer  or  other  water-craft 
shall  be  deemed  part  of  its  said  road.  Whenever  any  steamship  or  steamboat  company  owns 
and  operates  any  barge,  canal-boat,  steamer,  tug,  ferry-boat,  or  lighter,  in  connection  with  its 
ships  or  boats,  the  thing  so  owned  and  operated  shall  be  deemed  to  be  part  of  its  main  line. 
ISn'arie.i,  how  paid. 

Svc.  1.").  The  salaries  of  the  comndssioners,  secretary,  bailiff,  and  all  other  officers  and 
attaches  in  any  manner  employed  by  the  board  of  commissioners,  and  all  expenses  of  every 
kind  created  under  this  act,  shall  be  paid  ou'.  of  any  money  in  tlie  general  fund  not  otherwise 
Bpj)ropriatcd,  and  the  controller  of  .state  is  hereby  authorized  and  directed  to  draw  his  warrants 
from  time  to  time  for  such  purposes,  and  the  state  treasurer  is  hereby  authorized  and  directed 
to  pay  the  same. 

Sec.  16.     Thia  act  sliall  take  effect  immediately. 


TITLE  lY. 

STREET-RAILROAD  CORPORATIOXS. 

497.   Aufhority  to  lay  street-railroad  track,  how  obtained. 

Sec.  497.  Authority  to  lay  railroad  tracks  through  the  streets  and  public 
highways  of  any  incorporated  city  or  town  may  be  obtained,  for  a  term  of 
years  not  exceeding  fifty,  from  the  trustees,  council,  or  other  body  to  whom  is 
intrusted  the  government  of  the  citj'  or  town,  under  such  restrictions  and  lim- 
itations, and  upon  such  terms  and  payment  of  license  tax,  as  the  city  or  town 
authority  ma}''  provide.  In  no  case  must  prrmission  bo  granted  to  propel  cars 
upon  such  tracks  otherwise  than  by  horses,  mules,  or  by  wire  ropes  running 
under  the  streets  and  moved  by  stationary  steam-engines,  unless  for  special 
reasons,  as  hereinafter  provided.  [Amendmott,  approved  March  3,  187G; 
Ameiidmeiils  1875-G,  76;  took  effect  from  pasmge.] 

Authority  to  grant  street-railroad  frau-  St.  li.  Co.  v.  Central  R.  Co.,  51  Id.  5S.T;  an<l 
Chises,  here  given,  is  to  bo  construe  1  in  con-  one  railroad  may  cross  the  track  of  another: 
nectiun  with  the  other  sections  of  this  title.  Id.  A  legislative  franchise  to  run  a  stcani- 
For  example,  see  sec.  499,  and  note.  The  railroad  through  the  streets  of  a  city  does  not 
power  iiere  given  recognized  in  Omnibus  /?.  J',  place  the  corporation  beyond  local  police  legu- 
V.  Ualdw'.n,  ^>~  Cal.  IGO,  1G7.  Under  tius  sec-  lations,  or  from  municipal  taxation:  San  Joxi 
tion  the  |  ermission  may  bo  granted  to  indi-  v.  S.  J.  <t  //.  /'.  Co.,  o.'J  Id.  47.'). 
viduald  as  \v  ell  as  to  corporations:  Id.  The  grant  of  a  privilege  to  run  a  railroad  does 

Effect  of  granting  the  franchise.— A  not  preclude  the  owners  of  adjacent  lots  from 
street-railroad  company  has  only  an  e(iual  recovering  damages  for  injuries  resulting  tiierc- 
right  with  the  traveling  public  to  the  use  of  from:  <S'.  P.  li.  R.  Co.  v.  Rccd,  41  Cal.  23G. 
the  street,  with  a  few  cxcepti(ms,  sucii  as  that  But  mere  consequential  disadvantages  of  a 
vehicles  nuist  give  way  to  a  car  running  on  its  Btreet-railroa<l  to  a  particular  locality,  and  its 
track:  Skra  v.  /*.  «t  li.  V.  R.  R.  Co.,  44  Cal.  consequential  detriment  to  property  along  its 
414.  The  public  are  not  excluded  from  the  line,  cannot  bo  made  the  subject  of  a  private 
•treet  by  reason  of  the  franchise:  Id.;  MarLrt    action:  Carton  v.  C.  R.  R.  Co.,  33  Id.  325. 

127 


§§  498-501  COPJ  ORATIONS.  [Div.  I,  Fart  IV, 

498.  Condition!^  on  grant  nf  rigid  of  way. 

Skc.  408.  The  city  or  town  authorities,  in  n;ranting  the  right  of  way  to  street- 
railroad  corporations,  in  adJitiou  to  th(i  restrictions  which  they  are  authorized 
to  impose,  must  require  a  strict  compliance  with  the  followinj^  conditions, 
except  in  the  cases  of  prismoidal  or  other  elevated  railways.  In  such  cases  said 
railway  shall  be  required  to  be  constructed  in  such  a  manner  as  will  present 
the  least  obstruction  to  the  freedom  of  the  streets  on  which  it  may  be  erected, 
when  allowed  by  the  p^ranting  power: 

1.  To  construct  their  tracks  on  those  portions  of  streets  designated  in  the 
ordinance  granting  the  right,  which  must  ba  as  nearly  as  possible  in  the  middle 
thereof; 

2.  To  plank,  pave,  or  macadamize  the  entire  length  of  the  street  used  by 
their  track,  between  the  rails,  and  for  two  feet  on  each  side  thereof,  and  between 
the  tracks,  if  there  be  more  than  one,  and  to  keep  the  same  constantly  in  repair, 
flush  Avith  the  street,  and  with  good  crossings; 

3.  That  the  tracks  must  not  be  more  than  five  feet  wide  within  the  rails,  and 
must  have  a  space  between  them  sufScieut  to  allow  the  cars  to  pass  each  other 
freel}'.  [Amendment,  approved  April  3,  187G;  Amendments  1875-G,  77;  took 
effect  from  passage.  ] 

Cited  iu  Whiting  v.  Townsend,  57  Cal.  515,  5 IS. 

499.  Two  corporations  may  use  the  same  track. 

Sec.  499.  Two  corporations  may  be  permitted  to  use  the  same  street,  each 
paying  an  equal  portion  for  the  construction  of  the  track;  but  in  no  case  must 
two  railroad  corporations  occupy  and  use  the  same  street  or  track  for  a  distance 
of  more  than  five  blocks. 

Tv70  corporatious  using  same  street. —  on  that  condition,  and  on  tliat  condition  only, 

The   supreme  court   thus   discuss  this  section  the  liiuitation  is  not  at  all  qualiliel   in  tliat 

in  Omn  bun  U.  R.  Co.  v.  Ikddwin,  57  Cal.  1(30,  respect   by   the   subsequent   clause,  whicli    as 

168:  "The  first  clause  of  this  section  clearly  before  remarked,  simply  adds  a  further  ]i;nita- 

means  that  a  right  to  use  the  same  street  can-  tion,   which  in  no  sense  can  be  rc-^arded   aa 

not  be  granted  to  more  than  two  cori^orations  inconsistent  with  that  contained  in  the  preced- 

in  any  case,  and  if  granted  to  two,  it  must  ha  ing  clause.     •     *    *    The  limitation  is  not  only 

upon    the   condition    that   both   use  the  same  in  the  act,  but  very  properly  there,  iunl  we  are 

track,  and  tliat  each  pay  an  equal  portion  of  not  disposed,  even  if  we  had  the  p  )\ver,  v/liich 

the  cost  of  constructing  it.     The  second  clause  we   have   not,   to  modify   it   iu    the   slightest 

contains  nothing  which  conflicts  witli  the  con-  de^^'ee." 

struction  of  the  lirst,  l)ut  simply  adds  another  In  the  important  particular — prohibiting  the 

limitation;  viz.,  tliat  'in  no  case  must  two  rail-  use  of  the  same  street  by  two  corporations  for 

road    corporations   occujiy  and    u -e    the   same  the  given  distance — the  present  section  difFera 

street   or  track   for  a  distance  of  more  than  from  the  act  of  1870,  under  whicIi  O.  /'.  A'.  ' 'o. 

rive   blocks.'      If    the   provision   of    the    first  v.  ().  B.  d:  F.    V.   IL  R.  Co..  4.j  Cal.  .i78,  was 

clause  had  lieen   that  two  railro.uls  might  use  decided.     The  former  provision  simply  rofened 

the  same  track,  each  paying  an  equal  portion  to   track.     A   grant   by  the   supervisors  of  a 

for  the  construction  of  it,  there  might  be  some  county   in   violation   of   section    439    is    void: 

difficulty  in  determining  Avhat  it  meant.     But  People  v.  Rich,  54  Id.  74;  Oniaibas  R.  H.  Co. 

when  it  permits  them  to  use  the  same  street  v.  B.Udw'm,  57  Id.  IGO. 

500.  Crossing  tracks. 

Sec.  500.  Any  proposed  railroad  track  may  be  permitted  to  cross  any  track 
already  constructed,  the  crossing  being  made  as  provided  in  Chapter  II.,  Title' 
III.,  of  this  part.  In  laying  down  the  track  and  preparing  therefor,  not  more 
than  one  block  must  be  obsti'ucted  at  any  one  time,  nor  for  a  longer  jieriod 
than  ten  working  days. 

See  sees.  4G5  et  seq. 

501.  Jlat'-s  of  fire,  speed,  etc. 

Sec.  501.  The  rates  of  fare  on  the  cars  must  not  exceed  ten  cents  for  ono 
fare,  for  aay  distance  under  three   miles.     Tha  cars  must  be  of   the   most 

123 


Tm-E  IV.]  STREET-KAILROAD  CORPORATIONS.  8S  r.02-505 

approved  construction  for  comfort  and  convenience  of  passengers,  and  pro- 
vided with  brakes  to  stop  the  same  when  required.  The  rate  of  speed  must 
not  be  greater  than  eight  miles  per  hour.  A  violation  of  the  provisions  of  this 
section  subjects  the  corporation  to  a  fine  of  one  hundred  dollars  for  each  offense. 
Rates  of  fare  for  railroad  corporations:  See  sec.  4S9. 

An  Act  to  limit  and  fix  the,  rates  0/  farex  on  ftred-raHroads  in  cities  and  towns  of  more  titan  one 

Itundred  thousand  inhabilant't. 
lAiiproved  January  1, 1878;  1877-6, 18.] 
Raten  of  fare  of  street-railroads. 

Section   1.     No  street-railroad  in  any  city  or  town  of  this  state  M-ith  more  than  one  liundTsd 
thousand  inhabitants  shall  be  allowed  to  charge  or  collect  a  higher  rate  of  fare  than  five  cents  for 
each  passenger  per  trip  of  any  distance  in  one  direction,  either  going  or  coming,  along  any  part 
of  the  whole  length  of  the  road  or  its  connections. 
Violation  and  forfeiture. 

Sec.  2.  Every  violation  of  the  provisions  of  section  one  of  this  act  shall  subject  the  owner 
or  owners  of  the  street-railroad  violating  the  same  to  a  forfeiture  to  the  person  so  unlawfully 
charged,  or  paying  more  than  is  ther'^in  allowed  to  be  charged,  the  sum  of  two  hundred  and 
fifty  dollars  for  each  and  every  instance  when  such  unlawful  charge  is  made  or  collected,  to  be 
recovered  by  suit  in  any  court  of  competent  jurisdiction;  such  causes  of  action  shall  be  assign- 
able, and  the  action  may  be  maintained  by  the  assignee  in  his  own  name,  and  several  causes  of 
action  arising  out  of  unlawful  cliarges  or  collections  from  different  persons  may  be  vested  iu  the 
assignee  and  united  in  the  same  action. 

Sec.  3.     This  act  shall  be  in  force  from  its  passage. 

502.  Time  allowed  for  completion  of  work  of  laying  down  track. 

Sec.  502.  "Work  to  construct  the  railroad  must  be  commenced  within  one 
year  from  the  date  of  the  ordinance  granting  the  right  of  way  and  the  filing  of 
articles  of  incorporation,  and  the  same  must  be  completed  within  three  years 
thereafter.  A  failure  to  comply  with  these  provisions  works  a  forfeiture  of  the 
right  of  way  as  well  as  of  the  franchise,  unless  the  uncompleted  portion  ia 
abandoned  by  the  corporation,  with  the  consent  of  the  authorities  granting 
the  right  of  way,  such  abandonment  and  consent  to  be  in  writing. 

The  three  preceding  sections  are  founded  on  Baldioin,  51  Ceil.  ]G0.  The  section  does  not  pre- 
Stats.  1S'J3,  2'J7,  sees.  1-5.  This  section  is  also  scribe  how  mucii  work  shall  constitute  a  com- 
bated on  Stats.  1870,  482,  sees.  1-G.  menceinent:  Id. 

To  work   a  forfeiture  under  this  section,         Forfeiture    for    failure     to     commence 

the  failure  to  commence  work  within  a  year,  vrorli,  of  railroail  corporations:   See  sec.  4CS; 

and  the  failure  to  complete  within  three  years  generally,  see  sec.  3oS,  and  note, 
thereafter,  must  unite:   Omnibtm  R.  R.  Co.  v. 

503.  May  make,  further  regulations  and  rules. 

Sec  503.  Cities  and  towns  in  or  through  which  street-railroads  run  may 
make  such  further  regulations  for  the  government  of  such  street-railroads  as 
may  be  necessary  to  a  full  enjoyment  of  the  franchise  and  the  enforcement  of 
the  conditions  jjrovided  herein. 

504.  Penallij  for  overcharging. 

Sec  504.  Any  corporation,  or  agent  or  employee  thereof,  demanding  or 
charging  a  gi-eater  sum  of  money  for  fare  on  the  cars  of  such  street-i*ailroad 
than  that  fixed,  as  provided  iu  this  title,  forfeits  to  the  person  from  whom  such 
Bum  is  received,  or  who  is  thus  overcharged,  the  sum  of  two  hundred  dollars, 
to  be  recovered  in  a  civil  action,  in  any  justice's  court  having  jurisdiction  thereof, 
against  the  corporation. 

505.  Street-railroads  must  furnish  tickets. 

Sec.  505.  Every  street-railroad  corporation  must  provide,  and  on  request 
furnish  to  all  persons  dcsinng  a  passage  on  its  cars,  any  required  quantity  of 
passenger  tickets  or  checks,  each  to  bo  good  for  one  ride.  Any  corporation 
failing  to  provide  and  furnish  tickets  or  checks  to  any  person  desiring  to  pur- 
chase the  same,  at  not  exceeding  the  rate  hei'cinbefore  described,  shall  forfeit  to 
Civ.  Code— 9  129 


8§  506-510  CORPORATIONS.  [Div.  I,  Pabt  IV, 

«uch  person  the  sum  of  two  hundred  dollars,  to  be  recovered  as  provided  in  the 
preceding-  section;  provided,  that  the  provisions  of  this  section  shall  not  apply 
to  such  street-railroad  corporations  as  charge  but  five  cents  fare.  [Amend- 
ment, approved  March  13»  1883;  Statutes  and  Amendments  1883,  84;  took  effect  im- 
mediately. ] 

506.  Prima  facie  evidence  of  agency. 

Sec.  506.  Upon  the  trial  of  an  action  for  any  of  the  sums  forfeited,  as  pro- 
vided in  the  two  preceding  sections,  proof  that  the  person  demanding  or  receiv- 
ing the  money  as  fare,  or  for  the  sale  of  the  ticket  or  check,  was  at  the  time  of 
making  the  demand  or  receiving  the  money,  engaged  in  an  ojffice  of  the  corpo- 
ration, or  vehicle  belongings  to  the  corporation,  shall  be  pi*ima  facie  evidence 
that  such  person  was  the  agent,  servant,  or  employee  of  the  corporation,  to 
receive  the  money  and  give  the  ticket  or  check  mentioned.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  213;  tooh  effect  July  1,  1874.] 

507.  Rights  reserved  to  city  or  town. 

Sec.  507.  In  every  grant  to  construct  street-railroads,  the  right  to  grade, 
sewer,  pave,  macadamize,  or  otherwise  improve,  alter,  or  repair,  the  streets  or 
highways,  is  reserved  to  the  corporation,  and  cannot  be  alienated  or  impaired; 
such  work  to  be  done  so  as  to  obstruct  the  railroad  as  little  as  possible;  and  if 
required ,  the  corporation  must  shift  its  rails  so  as  to  avoid  the  obstructions 
made  thereby.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
214;  took  effect  July  1,  1874.] 

508.  License  to  he  paid  to  city  or  town. 

Sec.  508.  Each  street-railroad  corporation  must  pay  to  the  authorities  of  the 
city,  town,  county,  or  city  and  county,  as  a  license  upon  each  car,  such  sum  as 
the  authorities  may  fix,  not  exceeding  fifty  dollars  per  annum  in  the  city  of  San 
Francisco,  nor  more  than  twenty-five  dollars  per  annum  in  other  cities  or  towns. 
"Where  any  street-railroad  connects  or  runs  through  two  or  more  cities  or  towns, 
a  proportionate  or  equal  share  of  such  license  tax  must  be  paid  to  each  of  the 
cities  or  towns;  and  no  such  license  tax  is  due  the  county  authorities  where  the 
same  is  paid  to  any  city  or  town  authority. 

Licenses:  See  Pol.  Code,  sees.  ,33J6  et  seq. 

509.  Track  for  grading  purposes. 

Sec  500.  The  right  to  lay  down  a  tract  for  grading  purposes,  and  maintain 
the  same  for  a  period  not  to  exceed  three  years,  may  be  granted  by  the  cor- 
porate authorities  of  any  city  or  town,  or  city  and  county,  or  supervisors  of  any 
city  or  county,  but  no  such  track  must  remain  more  than  three  years  upon  any 
one  street;  and  it  must  be  laid  level  with  the  street,  and  must  be  operated  under 
Buch  restrictions  as  not  to  interfere  with  the  use  of  the  street  by  the  public. 
The  corporate  authorities  of  any  city  or  town,  or  city  and  county,  may  grant 
the  right  to  use  steam  or  any  other  motive  power  in  propelling  the  cars  used  on 
such  grading  track,  when  public  convenience  or  utility  demands  it,  but  the 
reasons  therefor  must  be  set  forth  in  the  ordinance,  and  the  right  to  rescind  the 
ordinance  at  any  time  reserved. 

510.  What  provisions  of  Title  ITT.  are  applicable  to  street-railroads. 

Sec  510.  Street-railroads  are  governed  by  the  provisions  of  Title  III.  of  this 
part,  so  far  as  they  are  applicable,  unless  such  railroads  are  therein  specially 
excepted.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  214; 
took  effect  July  1,  1874,] 

See  sees.  454  et  seq. 

130 


Title  V.]  WAGON- ROAD  COr.PORATIONS.  S§  511-514 

611.    Title  applicable  to  natural  person.^  alike  with  corporations. 

Seo.  511.  When  a  street- rail  road  is  constructed,  owned,  or  operated  by  any 
natural  person,  this  title  is  applicable  to  suck  person  in  like  manner  as  it  id 
applicable  to  corporations. 


TITLE  V. 
WAGON-ROAD  CORPORATIONS. 

612.    Three  commissioners  to  act  with  surveyor. 

Sec.  512.  Where  a  corporation  is  formed  for  the  construction  and  mainte- 
nance of  a  wagon  road,  the  road  must  be  laid  out  as  follows: 

Three  commissioners  must  act  in  conjunction  with  the  surveyor  of  the  cor- 
poration, two  to  be  appointed  by  the  board  of  supervisors  of  the  county 
through  which  the  road  is  to  run,  and  one  by  the  corporation,  who  must  lay 
out  the  proposed  road,  and  report  their  proceedings,  together  with  the  map  of 
the  road,  to  the  supervisors,  as  provided  in  the  succeeding  section.  [Amend- 
ment, ajiproved  March  30, 1874;  Amendments  1873-4,  214;  took  effeclJahj  1, 1874.] 

Wagoa-road  corporationa,  iaoorpora-  by  a  trespasser:  S.  d'  L.  G.  R.  Co.  v.  S.  «t  C.  R. 
tion  of:  Sees.  291-294.  Such  corporations  can  R.  Co.,  15  Cal.  6S0.  Although  the  act  for  the 
hold  only  such  real  estate  as  the  jmrposes  of  formation  of  plank  and  turnpike  road  coinpa- 
the  corporation  require:  t'o/^'ma?i  V.  <!>'.  R.  T,  R.  nies  denominates  companies  which  may  be 
Co.,  49  Id.  517;  and  cannot  ac(]uire  or  hold  formed  under  its  provisions  "joint  stock  corn- 
lands  or  the  possessory  right  thereto,  or  any  panics,"  still  the  act  siiows  tliat  they  are  cor- 
interest  therein,  beyond  the  easement  or  right  porations:  Ulaitchard  v.  Kmdl,  44  Id.  440. 
of  way  over  the  same:  Wood  v.  Truckee  T.  Co.,  Turnpike  roads  are  highways,  distinguishable 
24  Id.  474.  All  the  interest  the  company  has  from  highways  in  general  simply  in  the  manner 
in  the  roa<l  is  the  right  to  collect  tolls  along  its  in  which  such  roads  are  constructed.  Instead 
line,  as  a  compensation  for  its  construction:  Id.     of  being  made  at  the  public  expense  in  the  first 

If  a  plank  and  turnpike  road  company  eflect     instance,  the  cost  of  construction  and  mainte- 
a  preliminary  organization,  adopt  a  code  of  by-     nance  is  defrayed  by  tolls  collected  from  trav- 
laws,  iuiil  in  good  faith  tliereafter  act  as  a  cor-     elers:  Commonirealth  v.  Wdk'mson,  16 Pick.  173; 
poration,  it  becomes  a  corporation  dcfido,  and     Angell  on  Highways,  sec.  9. 
its  right  to  its  franchise  cannot  be  questioned 

513.  Survey  and  map  to  befded  and  approved  by  supervisors. 

Sec.  513.  When  the  route  is  surveyed,  a  map  thereof  must  be  submitted  to 
and  filed  with  the  board  of  supervisors  of  each  county  through  or  into  which 
the  road  runs,  giving  its  general  course  and  the  principal  points  to  or  by  which 
it  runs,  and  its  width,  which  must  in  no  case  exceed  oue  hundred  feet,  and  the 
supervisors  must  either  approve  or  reject  the  survey.  If  approved,  it  must  be 
entered  of  record  on  the  journal  of  the  board,  and  such  approval  authorizes  the 
use  of  all  public  lands  and  highways  over  which  the  survey  runs;  but  the  board 
of  supervisors  must  require  the  corporation,  at  its  own  expense,  and  the  corpo- 
ration must  so  change  and  open  the  highway  so  taken  and  used  as  to  make  the 
same  as  good  as  they  were  before  the  appropriation  thereof;  ami  must  so  con- 
Btruct  all  crossings  of  public  highways  over  and  by  its  road,  and  its  toll-gates, 
as  not  to  hinder  or  obstruct  the  use  of  the  same. 

See  infra,  sec.  515. 

514.  Tolls,  etc. ,  to  be  collected. 

Sec.  514.  All  wagon-road  corporations  may  bridge  or  keep  ferries  on  streams 
on  the  line  of  their  road,  and  must  do  all  things  necessary  to  keep  the  same  in 
repair.  They  may  take  such  tolls  only  on  their  roads,  fenies,  or  bridges  as  are 
fixed  by  the  board  of  supervisors  of  the  proper  county  through  which  the  road 
passes,  or  in  which  the  ferry  or  bridge  is  situate,  except  that  in  the  counties  of 
Klamath,  Butte,  Del  Norte,  Plumas,  Humboldt,  and  Sierra,  the  directors  may 

V33 


S§  515-519  COnrORATIONS..  [Div.  I,  Tart  IV, 

fix  their  own  tolls;  but  in  no  case  must  the  tolls  be  more  than  sufficient  to  pay 
fifteen  per  cent  nor  less  than  ten  per  cent  per  annum  on  tlie  cost  of  construc- 
tion, after  paying  for  repairs  and  other  expenses  for  attending  to  the  roads, 
bridges,  or  fen-ies.  If  tolls,  other  than  as  herein  provided,  are  charged  or 
demanded,  the  corporation  forfeits  its  franchise,  and  must  pay  to  the  party  so 
charged  one  hundred  dollars  as  liquidated  damages.  [Amendment,  approved 
March  28,  1874;  Amendments  1873-4,  272;  took  effect  sixtieth  day  after  passage.] 

The  right  to  collect  tolls  is  a  franchise,  Peoplf  v.  FihUWI  Plank  R.  Co.,  27  I3arl).  452, 

and  cannot  be  exercised  except  it  be  granted  l)y  45S;  Peop'e  v.  IlUhdde  d-  C.  T.  Co.,  23  Wend, 

the  legislature,  or  some  branch  of  the  govern-  254;  People  v.  Plymoufh  P.   R.  Co.,  32  Mich, 

ment  vested  by  the  legislature  with  the  jjower  24S;   Tariipiki'  Co.  v.  Slate,  3  Wall.  210;  State 

to  grant  the  franchise:  Uarlram  v.  Cent.  T.  Co.,  v.  Roi/alsfou  T.  (Jo.,  1 1  Vt.  431;  People  v.  Jack- 

25  C'al.  283.  son  etc.  R.  Co.,  9  Mich.  2S5. 

Witii  respect  to  the  keeping  of  the  road  in  Toll  on  bridge,  obtaining  consent  of  super- 
repair,  it  is  a  general  principle  that  if  a  turn-  visors:  Sue  sec.  528,  ante. 
pike  company  omits  to  keep  its  road  in  proper  Sale  of  franchise  under  execution:   Sea 
condition  to  be  used  by  the  public,  it  is  liable  to  sec.  338. 

have  it  declared  forfeited  at  the  s'lit  of  the  Toll-road3:  Pol.  Code,  sees.  2779  et  seq. 
state:  Slate  v.  Pawtuxet  I".  Co.,  8  E,.  I.  1!)1; 

515.  No  tolls  to  be  charged  on  highways  or  public  roads. 

Sec.  615.  "When  any  highway  or  public  road  is  taken  and  used  by  any  wagon- 
road  corporation  as  a  part  of  its  road,  the  corporation  must  not  place  a  toll-gate 
on  or  take  tolls  for  the  use  of  such  highway  or  public  road  by  teamsters,  trav- 
elers, drovers,  or  any  one  transporting  property  over  the  same. 

A   public   highway  as   a  toU-road. — Su-  way,  and  duty  with  respect  thereto.     That  the 

pervisors  cannot  gi'ant  the  ri^ht  to  collect  toll  legislature  has  power  to  authorize  a  turnpike 

from  persons  traveling  onthehighway,tlieyhav-  company  to  lay  out  their  road  upon  a  coinmoa 

ing  no  authority  from  the  leg's  atnre  so  to  do:  public  highway,   see  State  v.   JJampton,  2  N. 

i:i  Dorado  Co.   v.   Davison,  33  Cal.  520.     See  H.  22. 
sec.  513,  as  to  right  of  corporation  to  use  high- 

516.  Bates  of  toll  to  be  posted  at  gate. 

Sec.  51G.  The  corporation  must  affix  and  keep  up,  at  or  over  each  gate,  or 
in  some  conspicuous  place,  so  as  to  be  conveniently  read,  a  printed  list  of  the 
rates  of  toll  levied  and  demanded. 

517.  Toll  gatherer  may  detain  persons  until  they  pay  toll. 

Sec.  517.  Each  toll  gatherer  may  prevent  from  passing  through  his  gate  per- 
sons leading  or  driving  animals  or  vehicles  subject  to  toll,  until  they  shall  have 
paid,  respectively,  the  tolls  authorized  to  be  collected. 

513.    Toll  gatherer  not  to  detain  any  person  unnecessarily. 

Sec.  518.     Every  toll  gatlierer  who,  at  any  gate,  unreasonably  hinders  or 

delays  any  traveler  or  passenger  liable  to  the  payment  of  toll,  or  demands  or 

receives  from  any  person  more  than  he  is  authorized  to  collect,  for  each  offense 

forfeits  the  sum  of  twenty-five  dollars  to  the  person  aggrieved. 

"E^ct^essive  toll. — If  a  corporation  has  con-  toll  is  a  "toll  gatherer"  within  the  meaning  of 

strucled  a  turnpike  road,  for  tlie  purpose  of  this  section,  even  though  more  than  a  year  has 

collecting  toll,  and  tlic  supervisors  have  once  elapsed  since  the  fixing  of  the  rates:  JJrown  V, 

lixoil  the  rates  of  toll,  a  jierson  who,  as  the  Rice,  51  Cal,  489. 
agent  of  the  company,  demands  and  receives 

519.    Persons  avoiding  tolls  to  pay  five  dollars. 

Sec  519.     Every  person  who,  to  avoid  the  payment  of  the  legal  toll,  with 

his  team,  vehicle,  or  horse,  turns  out  of  a  wagon,  turnpike,  or  plank  road,  or 

passes  any  gate  thereon  on  ground  adjacent  thereto,  and  again  enters  upon  such 

road,  for  each  offense  forfeits  the  sum  of  five  dollars  to  the  corporation  injured. 

Evadiii;;  toll. — What  acts  amount  to  a  Vambi'ii'n,  10  Vt.  197;  Carrier  v.  Schorarie  T. 
fraudulent  evasion  of  toll,  see  Centre  T.  Co.  v.     Co.,  13  Johns.  56. 

132 


Title  VI.]  WAGON- ROAD  CORrCRATIOXS.  §§520-523 

520.  Penalties  f 07'  trespanHes  on  property  oj  corporation. 
Sec.  520.     Every  person  who: 

1.  Willfully  breaks,  cuts  down,  defaces^  or  injures  any  mile- stone  or  post  on 
any  wagon,  turnpike,  or  plank  road;  or, 

2.  Willfully  breaks  or  throws  down  any  gate  on  such  road;  or, 

3.  Digs  up  or  injures  any  part  of  such  road  or  anything  thereunto  belong- 
ing; or, 

4.  Forcibly  or  fraudulently  passes  any  gate  thereon  without  having  paid  the 
legal  toll; 

— For  each  offense  forfeits  to  the  corporation  injured  the  sura  of  twenty-five 

dollars,  in  addition  to  the  damages  resulting  from  his  wrongful  act. 

Forcibly  or  fraudulently  passing  toll-  662;  Hammon(Uport  etc.  P.  Co.  v.  Drunclnge, 
gate:  See  Aiigell  on  Ilijliways,  seo.  358;  13  How.  Pr.  448;  (Jreen  ML  T.  Co.  V.  lltn\r 
Bridiji  water  tfc  U.  li.  Co.  v.  liobbhis,  22  Barb,     mvigwaij,  2  Vt.  512. 

521.  lU'venue,  hoiv  to  he  appropriated. 

Stc.  521.  The  entire  revenue  from  the  road  shall  be  appropriated:  first,  to 
repayment  to  the  coi-poration  of  the  costs  of  its  construction,  together  with  the 
incidental  expenses  incurred  in  collecting  tolls  and  keeping  the  road  in  repair; 
and,  second,  to  the  payment  of  the  dividend  among  its  stockholders,  as  pro- 
vided in  section  five  hundred  and  fourteen.  "When  the  repayment  of  the  cost 
of  construction  is  completed,  the  tolls  must  be  so  reduced  as  to  raise  no  more 
than  an  amount  sufficient  to  pay  said  dividend,  and  incidental  expenses,  and  to 
keep  the  road  in  good  repair.  \Ammdment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  215;  took  effect  July  1,  1874.] 

522.  May  mortgage  and  JujpolJiecate  corporate  property. 

Sec  522.  The  corporation  may  mortgage  or  hypothecate  its  road  and  other 
property  for  funds  with  which  to  construct  or  repair  their  road,  but  no  mort- 
gage or  hypothecation  is  valid  or  binding  unless  at  least  tweut3'-five  per  cent 
of  the  capital  stock  subscribed  has  been  paid  in  and  invested  in  the  construc- 
tion of  the  road  and  appurtenances,  and  then  only  after  an  affirmative  vote  of 
two  thirds  of  the  capital  stock  subscribed. 

Mortgage  of  turnpike  company. — It  re-  it.     Where  an  assessmeut  is  levied  on  the  vote 

quiri-s  thu  \ote  of  two  thirds  of  the  .stookhoM-  of  a  majority  of  tlie  stockliolikTS  to  pay  a  note 

era  of  a  turnpike  company  to  enable  the  board  not  cxocuted  und'-.-r  proper  authority,  tlie  fact 

of  directors  to  mortgage  the  property  of  the  tliat  two  thirds  of  tiie   stockholders  pay  the 

company,  and  if  without  such  vote  a  mortgage  assessment  tloes  not  prove  a  ratiticatioa;  Forbea 

is  given,  it  requires  a  two-thirds  vote  to  ratify  v.  Sua  Rafael  T.  Co.,  50  Cal.  SiO. 

523.  ThxM  title  applies  to  natural  persons  as  xoo.ll  as  corporations. 

Sec  523.     When  a  wagon,  turnpike,  or  plank  road  is  constructed,  o^vned,  or 

operated  by  any  natural  person,  this  title  is  applicable  to  such  person  in  like 

manner  as  it  is  applicable  to  corporations. 

Individuals    ovrning    toll-roads.— As    an    2^  Cal.  2S:i;  Mahan  v.  San  Ha/ael  T.  R.  Co., 
illustration  <jf  toll-roads  constructed  or  owned     49  Id.  2ii'X 
by  iudividualb,  see  JJartram  v.  Cettlral  T.  Co., 

133 


8§  52S-530  CORrORATIONS.  [Div.  I,  Paet  IV, 

TITLE  VI. 
BRIDGE,   FERRY,  "WHARF,    CHUTE,   AND    PIER    CORPORATIONS. 

528.  Corporation  to  obtain  licensee  from  supervisors. 

8eo.  528.     No  corporation  must  construct,  or  take  tolls  on,  a  bridge,  ferry, 

■wliarf ,  chute,  or  pier  until  authority  is  granted  therefor  by  the  supervisors. 

Ferry  lioense. — For  an  extended  considera-  compliance  on  his  part  with  the  statutory  ra- 
tion of  the  nature  of  franchises  for  erecting  quirements:  Finch  v.  Tehama  Co.,  29  Id.  453. 
toll-bridges,  and  of  the  rights  conferred  thereby,  Neglecting  to  renew  will  entitle  another  to 
see  Fall  v.  Suiter,  21  Cal.  237;  Norria  v.  Farm-  procure  a  license:  Tartar  v.  Finch,  9  Id.  276. 
fr.s'  2'.  Co.,  6  Id.  590.  That  supervisors  have  Free  bridges  may  be  established  without 
power  to  grant  ferry  licenses,  see  Finch  v.  Te-  license  if  not  within  a  mile  of  a  licensed  bridge: 
hama  Co.,  29  Id.  433;  Jlouihato  v.  Biitf^  Co.,  Norrlx  v.  Farmers'  T.  Co.,  6  Cal.  590. 
19  Id.  150;  Waurjh  v.  Chauncey,  13  Id.  11;  Tolls:  See  preceding  title,  aecs.  512  et  seq. 
Thomas  v.  Armstronrj,  7  Id.  2Sl>.  And  their  Where  an  act  authorizes  the  construction  of  a 
action  in  granting  such  a  license  is  not  review-  toll-bridge  and  the  collection  of  such  tolls  aa 
able  by  certiorari  except  for  excess  or  want  of  the  sujiervisors  shall  fix,  with  a  proviso  that 
juiisdictiou:  Jlenshato  v.  Bntte  Co.,  19  Id.  150.  the  legislature  may  modify  or  change  the  rates, 
Tiiat  a  new  bridge  may  be  located  within  a  the  board  of  supervisors  ma>  alter  the  rates 
mile  of  an  old  bridge,  where  public  convenience  wliich  they  have  once  fixed,  subject  to  tho 
requires  it,  see  ]Vanfjh  v.  Chauncey,  13  Id.  11;  supervisory  control  of  the  legislature:  Stanis- 
Fall  V.  Slitter  Co.,  21  Id.  237;  Norris  v.  Farm-  lau.<  Br!il<je  Co.  v.  Ilor4ey,  46  Cal.  lOS 
rrii'  etc.  T.  Co.,  6  Id.  590.  But  a  free  bridge  Ferry -man's  liability  aa  a  carrier.— That  a 
cannot  be  established  within  a  mile  of  a  licensed  ferry-man  is  a  common  carrier,  upon  whom  ia 
bridge:  N^orris  v.  Fanner-'*'  T.  Co.,  supra.  imposed  the  duties  and  liabilities  of  that  char- 
Renewal  of  ferry  license. — The  right  to  acter,  see  May  v.  Hanson,  5  Cal.  3G0;  Orij/ilh 
the  renewal  is  not  lost  by  the  incompetency  or  v.  Cane.  22  lit.  534:  Po^^c  v.  Coffin,  9  Id.  56. 
refusal  of  the  supervisors:  Chard  v.  Sfoiie,  7  Public  ferries  and  toU-brids3s:  See  PoL 
Cal.  117.  One  who  claims  a  renewal  as  a  Code,  sees.  2S43  et  seq. 
matter  of  right  under  the  statute  must  show  a 

529.  In  what  contingencies  corporate  existence  ceases. 

Sec.  529.     Every-  such  corporation  ceases  to  be  a  body  corporate: 

1.  If,  within  six  months  from  tiling  its  articles  of  incorporation,  it  has  not 
obtained  such  authority  fx-om  the  board  of  supervisors;  and  if  within  one  year 
thereafter  it  has  not  commenced  the  construction  of  the  bridge,  wharf,  chute, 
or  pier,  and  actually  expended  thereon  at  least  ten  per  cent  of  the  capital  stock 
of  the  corporation; 

2.  If,  within  three  years  from  filing  the  articles  of  incorporation,  the  bridge, 
^harf,  chute,  or  pier  is  not  completed; 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier  of  the  corporation  is  destroyed, 
it  is  not  reconstructed  and  ready  for  use  within  three  years  thereafter; 

4.  If  the  feiTy  of  any  such  corporation  is  not  in  running  order  within  three 
months  after  authority  is  obtained  to  establish  it,  or  if  at  any  time  thereafter  it 
ceases,  for  a  like  term  consecutively,  to  perform  the  duties  imposed  by  law. 

530.  President  and  secretary  to  make  annual  report,  and  what  to  contain. 

Sec.  530.  The  president  and  secretary  of  every  bridge,  ferry,  wharf,  chute,  or 
pier  corporation  must  annually,  under  oath,  report  to  the  board  of  supervisors 
of  the  county  in  which  the  articles  of  incorporation  are  filed: 

1.  The  cost  of  constructing  and  providing  all  necessary  appendages  and 
appurtenances  for  their  bridge,  ferry,  wharf,  chute,  or  pier; 

2.  The  amount  of  all  moneys  expended  thereon,  since  its  construction,  for 
repairs  and  incidental  expenses; 

3.  The  amount  of  their  capital  stock,  how  much  paid  in,  and  how  much 
actually  expended  thereof; 

4.  The  amount  received  during  the  year  for  tolls  and  from  all  other  sources, 
stating  each  separately; 

134 


Title  VIL]  TELEGRAPH  CORPORAITON.S.  §§  531-539 

6.  The  amount  of  dividends  made,  and  the  indebtedness  of  the  corporation, 
specifying  for  what  it  was  incuiTed; 

6.  Such  other  facts  and  particulars  respecting  the  business  of  the  corporation 
as  the  board  of  supervisors  may  require. 

This  report  the  president  and  secretary  must  cause  to  be  published  for  four 
weeks  in  a  daily  newspaper  published  nearest  the  bridge,  ferry,  wharf,  pier,  or 
chute,  if  required  by  order  of  the  board  of  supervisors.  A  failure  to  make  such 
report  subjects  the  corporation  to  a  penalty  of  two  hundred  dollars;  and  for 
eveiy  week  permitted  to  elapse  after  such  failure,  an  additional  penalty  of  fifty 
dollars;  pa^'able  in  each  case  to  the  county  from  which  the  authority  of  the  cor- 
poration was  derived.  All  such  cases  must  be  reported  bj'  the  board  of  super- 
visors to  the  district  attorney,  who  must  commence  an  action  therefor. 

531.    T/iis  title  to  apply  to  natural  persons  alike  with  corporations. 

Sec.  531.  "When  a  bridge,  ferry,  wharf,  chute,  or  pier  is  constructed,  oper- 
ated, or  owned  by  a  natural  person,  this  title  is  applicable  to  such  person  iu 
like  manner  as  it  is  applicable  to  corporations. 

Publi:;  fzrriez  and  toU-bridsss:  Pol.  Code,  sees.  231.3  et  seq. 
■Wharves,  chutes,  and  piers:  PoL  Code,  aecs.  2D0o  et  secj. 


TITLE  VII. 

TELEGRAPH  CORPORATIONS. 

53G.    Ufaij  use  right  of  way  along  waters,  roads,  and  highways. 

Sec.  53G.  Telegraph  corporations  may  construct  lines  of  telegraph  along 
and  upon  any  public  road  or  highway,  along  or  across  any  of  the  waters  or 
lands  within  this  state,  and  may  erect  poles,  posts,  piers,  or  abutments  for  sup- 
porting the  insulators,  wires,  and  other  necessary  fixtures  of  their  lines,  in  such 
manner  and  at  such  points  as  not  to  incommode  the  public  use  of  the  road  or 
highway,  or  interrupt  the  navigation  of  the  waters. 

For  an  act  to  facilitate  telegraphic  communi-        Telesr.=tp!i  companies  are  common  car- 
catiou  between  America  and  ALsia,  approved     tiers:  See  sees.  2201  et  se(^.,  po/il,  auJ  note. 
February  13,  1S74,  Stats.  1S73-4,  97. 

537.  Persons  liable  for  damages  for  injuring  telegraph  property. 

Sec  537.  Any  person  who  injures  or  destroys,  through  want  of  proper  care, 
any  necessary  or  useful  fixture  of  any  telegraph  corporation,  is  liable  to  the 
corporation  for  all  damages  sustained  thereby.  Any  vessel  which,  by  dragging 
its  anchor  or  otherwise,  breaks,  injures,  or  destroys  the  subaqueous  cable  of  a 
telegraph  corporation,  subjects  its  owner  to  the  damages  hereinbefore  specified. 

538.  Parly  guilty  of  willful  and  malicious  injury,  liable  to  one  hundred  times 
actual  damages. 

Sec.  538.  Any  person  who  willfully  and  maliciously  does  any  injury  to  any 
telegraph  property  mentioned  in  the  preceding  section  is  liable  to  the  corpora- 
tion for  one  hundred  times  the  amount  of  actual  damages  sustained  thereby,  to 
be  recovered  in  any  court  of  competent  jurisdiction. 

539.  Conditions  on  which  damage  to  subaqueous  cable  may  be  recovered. 

Sec  539.  No  telegraph  corporation  can  recover  damages  for  the  breaking  or 
injury  of  any  subaqueous  telegraph  cable,  unless  such  corporation  has  pre- 
viously erected,  on  either  bank  of  the  waters  under  which  the  cable  is  placed, 
a  monument,  indicating  the  place  where  the  cable  lies,  and  XJublishes  for  one 

135 


13  546-548  COPvlOllATIONS.  [Drv.  I,  Paet  IV, 

tnontU  in  some  newspipor  most  likely  to  j^ive  notice  to  navigators  a  notice 
giving  a  description  and  the  purpose  of  the  mouuments,  and  the  general  course^ 
landings,  and  termini  of  the  cable. 

540.  .lla]/  dispose  of  certain  rights. 

Sec.  540.  Any  telegraph  corpoi'ation  may  at  any  time,  with  the  consent  of 
the  persons  holding  two  thirds  of  the  issued  stock  of  the  corporation,  sell, 
lease,  assign,  transfer,  or  convey  any  rights,  privileges,  franchises,  or  property 
of  the  corporation,  except  its  corporate  franchise. 

541.  Uniform  rates  of  charges. 

Section  541   was  repealed  by  act  approved  fix  xinlform  rates  of  charges  for  transmitting 

Marcli   80,    1874;    Arnendinouta   1873-4,    21G;  messages  proportionate  of  the  nuinljor  of  iiiilea 

took  effect  July  I,  1874.  the   s.i:ae    arc   sent,    wliich   must    bo   uniform 

The  repealed  section  read:  throughout  the  state,  and  publish  them  by  post- 

"Sko.  541.    Every  telegraphjcorporation  must  ing  such  rates  at  each  of  their  otiices  in  use." 


TITLE    VIII. 

WATER  AND  CANAL  CORPORATIONS. 

548.    Corporation  may  obtain  contract  to  supply  city  or  town. 

Sec.  548.  No  corporation  formed  to  supply  any  city,  city  and  county,  or  town 
with  water  must  do  so  unless  previously  authorized  by  an  ordinance  of  the 
authorities  thereof,  or  unless  it  is  done  in  conformity  with  a  contract  entered 
into  between  the  city,  city  and  county,  or  town  and  the  corporation.  Contracts 
80  made  are  valid  and  binding  in  law,  but  do  not  take  from  the  city,  city  and 
county,  or  town  the  right  to  regulate  the  rates  for  water,  nor  must  any  exclusive 
right  be  granted.  No  contract  or  grant  must  be  made  for  a  term  exceeding 
fifty  years. 

Stats.  1852,  171,  sec.  2. 

An  Act  to  authorize  municipal  corporations  of  the  fifth  class,  contalninff  more  than  tliree  thousand 
and  less  than  ten  thousand  inhabitants,  to  obtain  public  water-works. 
[Approved  March  9, 1885;  1885,  i2.] 
Election  in  reference  to  wat/'r  supply. 

Section  1.     The  trustees  or  common  council  of  any  municipal  corporation  of  the  fifth  class' 
are  hereby  empowered  to  call  a  special  election  in  said  city,  to  submit  to  tlie  qualified  electors 
of  said  city  a  proposition  to  supply  said  city  with  public  water-works. 
How  called. 

Sec.  2.  Said  election  may  be  called  by  said  trustees  or  common  council,  at  any  special  or 
regular  meeting  of  said  body,  after  the  passage  of  this  act. 

Sec.  3.     Said  election  shall  be  conducted  and  carried  on  according  to  the  general  laws  of  the 
state  of  California,  concerning  elections  in  the  municipal  corporations  of  the  lifth  class. 
Ballot,  ti'hat  to  contain. 

Sec.  4.     The  board  of  trustees,  or  common  council,  shall  cause  to  be  prepare  1  a  sufficient 
number  of  ballots  for  said  election;  upon  oue  h  df  of  said  ballots  shall  be  printed  the  words 
"  For  public  water-works,"  and  on  the  remaining  half  of  said  ballots  shall  be  printed  the  words 
"Against  public  water- works." 
Bonds. 

Sec.  5.  The  result  of  said  election  shall  be  determined  according  to  the  rules  of  elections  of 
municipal  corporations  of  the  fifth  class;  an  I  if  it  appeara  that  two  thirds  of  all  the  i>  Ulots  cast 
at  said  election  bear  the  words  "  For  pul)lic  wa!;er-w.)rk3,"  then  the  coin  nju  coaaoil.  or  b.>arj 
of  trustees,  shall  have  power,  and  are  hereby  authorized,  to  is=5ue  bond^  of  said  m.uiicipal  cor- 
poration, payable  on  the  first  day  of  January,  nineteen  hundred  and  five,  unless  previously 
redeemed  as  lierein  provided,  to  au  amount  not  excee.ling  one  hundred  thousan  I  d  >il-irs  (S13D, - 
COO).  Said  bonds  shall  bear  interest  at  the  rate  of  six  (G)  per  ctut  per  annum,  payable  se:ni- 
annually,  on  the  first  day  of  -January  and  the  first  day  of  July  of  each  year.  Said  principal 
and  interest  shall  be  made  payable  at  t'.ie  o'.S:;e  of  t'ae  treasurer  of  said  municipal  corpTi-at.on. 
&ai.l  iionds  shall  be  signed  by  the  presiding  o  licer  of  said  common  council,  or  board  of  trustees, 
of  said  city,  and  the  tre;i3urer  thereof,  and  cjunt  !rsigjed  by  the  clerk.  The  coupons  of  said 
bonds  shall  be  numbered  consecutively,  and  sigaed  by  the  city  treasurer. 

136 


TltLiF  Vin,  j  WATER  AND  CANAL  CORPORATIONS.  §  548 

Sinking  fund. 

oEC.  G.  For  the  purposes  of  liqtii.lating  the  saii^l  bonds,  the  common  council,  or  hoard  of 
trustees,  is  hereby  authorized  to  levy,  annually,  a  special  tix  from  and  after  the  year  of  the 
issue  of  said  bunds,  sulficient  to  pay  tiie  interest  on  sairl  indebtedness  as  it  falls  duo,  and  also 
to  constitute  a  sinking  fund  for  the  payment  of  the  principal  amount  of  said  bonds  within  twenty 
years  af  ler  the  issuance  thereof. 
Sale  of  honih. 

Sec.  7.  Said  bonds  shall  be  sold  or  exclianged  to  raise  money  as  reqtiired  in  the  purchase, 
construction,  or  repairs  of  said  work. 

h'a'er  fund. 

Sec.  8.     The  money  received  from  the  sale  of  said  water  shall  be  deposited  with  the  city 
treasurer  and  kept  in  a  separate  fund,  to  be  known  as  the  water  fund,  which  fond  is  to  be  used 
for  all  2iurposfS  connected  with  said  water-%\  orks. 
Treamirer  to  ad rertise  for  redempfion  of  honda. 

Sec.  9.  Whenever  there  is  in  said  water  fund  not  less  than  five  thousand  dollars  not  required 
for  the  care,  management,  or  repairs  of  .said  public  water-works,  said  common  council,  or  board 
of  trustees,  shall  require  the  trea.surtr  to  puldish  notice  in  a  newspaper  of  general  circulation  in 
Baid  county,  for  tlie  space  of  one  month,  that  a  certain  sum  of  money  (naming  it)  is  in  .«aid  fund 
for  the  redemption  of  said  bonds,  and  tliat  ho  will  receive  bids  for  tlie  redemptinn  of  the  same 
at  not  more  tlian  their  par  value,  with  interest  due,  until  a  day  named,  which  shall  be  not  less 
than  one  month  after  the  last  publication  of  the  notice  aforesaid. 
Bohds  not  to  he  redeemed  above  par  value. 

Sec.  10.  On  the  day  named  the  bids  .shall  be  opened  by  the  treasurer  and  presiding  officer  of 
Baid  board,  and  the  bitls  offering  to  surremler  the  Iwnds  at  tiie  lowest  sums,  not  more  than  their 
par  value  and  interest  due,  shall  be  accepte<l.  If  enough  bonds  to  consume  all  tiie  fun<l3  are 
not  redeemed,  the  treasurer  shall  advertise  as  before  to  redeem  bonds  at  par  value  and  interest, 
commencing  with  the  lowest  numbers  outstanding,  to  the  amount  of  money  on  hand,  aii<l  thirty 
days  after  the  last  publication  the  bonds  named  sliall  cease  to  boar  interest.  The  ti-easurer,  on 
the  order  of  the  board,  shall  pay  the  bonds  redeemed  either  under  the  bids  or  tlie  second  notice. 
By  rrhom  worlx  are  controlled. 

Sec.  11.     The  common  council,  or  board  of  trustees,  shall  manage  and  control  saiil  water- 
works, and  employ  all  labor,  and  purchase  all  materials,  and  appoint  all  agents  for  Uie  care  and 
management  of  and  repair  to  the  same. 
Income  from  wter. 

Sec.  12.  If,  at  any  time,  all  of  said  bonds  sh.all  bo  liquidated,  then  said  income  from  said 
water-works  shall  be  used  for  city  purposes,  as  may  seem  proper  to  the  common  council  or  board 
of  trustees  thcn^of. 

An  Act  to  enable  the  hoard  of  siipervisors,  tou-n  council,  board  of  aldermen,  or  other  hguflative 
body  of  avy  c'dy  ami  county,  city,  or  toioi,  to  obtain  data  and  i) formation,  from  any  rorpora- 
Hon,  comjiany,  or  person  guppl'/intf  iralrr  to  tinch  city  and  county,  city,  or  toicn,  requirii'g 
such  ho'ir  K,  toxon  council,  or  other  liijisliitire  body  to  perform  the  ditties  prescribed  by  section 
one  of  article  fourteen  of  the  condituLioii,  and  priscribiu;/  pencdlies  for  the  non-performance  of 
such  duties. 

[Approved  March  7.  1831;  1881,54.1 

Munici]>al  corporations  to  fix  neater  ratex. 

Seciion  1.  Tlie  board  of  supervisors,  town  council,  board  of  aldermen,  or  other  legislative 
body  of  an}'  city  and  county,  city,  or  town,  are  hereby  antliorized  an<l  empowered,  and  it  is 
made  their  ollieial  duty,  to  annually  (ix  the  rates  that  shall  be  charged  and  coliecteil  l)y  any  per- 
son, company,  association,  or  corporation  fur  water  furnished  to  any  such  city  and  county,  or 
city,  or  tow  n,  or  tlie  inhabitants  thereof.  Sucli  rates  shall  be  lixed  at  a  regular  or  special  ses- 
sion of  snc!i  board  or  other  legislative  l)ody,  held  during  the  montli  of  February  of  cacli  year, 
and  shall  t.ke  cllect  on  the  first  day  of  July  thereafter,  and  shall  continue  in  full  fon.-e  and  effect 
for  tiie  term  of  one  year,  and  no  longer. 
Annuid  titafemrnts  to  be  made  by  water  rompanie.<>,  etc. 

Si:c.  2.  The  boaid  of  sujiervisors,  town  council,  board  of  aldermen,  or  other  legislative  body 
of  any  city  and  county,  city,  or  town,  are  hercliy  auihorized,  and  it  is  hereby  ma<le  their  duty, 
at  lea'it  thirty  days  prior  to  the  fifteenth  day  of  January  of  each  year,  to  rcfpiirc,  l^y  ordinance 
or  otherwise,  any  corporation,  company,  or  person  supplying  water  to  such  city  and  cunty,  city, 
or  town,  or  to  tho  inhabitants  thereof,  to  fiirnisli  to  such  board,  or  other  governing  body,  in  the 
mouth  of  January  in  each  year,  a  detailed  statement,  verilied  liy  the  oath  of  tlie  president  and 
secretary  of  sucli  corporation  orcom|iany,  <  r  of  such  person,  as  tiie  case  may  be.  showing  the 
n.iuie  of  each  water-rate  payer,  his  or  her  place  of  tesidence,  and  the  .--.mount  paid  for  water  by 
ea<'h  of  sncli  water-rate  payers,  during  the  year  iireccding  the  date  of  sucli  statement,  and  also 
Bhowing  all  icvcime  derived  from  ad  sources,  and  an  itemized  statement  of  expenditures  made 
for  supplying  water  during  said  time. 
Additioiiiil  xf  itement, 

Siv;.  .3.  A(  eompanying  the  first  statement  made  as  prescribed  in  section  two  of  this  act,  every 
BUeh  corpoi'atiiin,  company,  or  person  sliall  fiirni;di  a  detaileil  ."statement,  verilied  in  like  manner 
as  the  statenient  mentioned  in  section  two  hereof,  showing  the  amount  of  money  nc'ually  ex- 
pended aniiiialiy.  since  commencing  biisimssM.  in  the  [urchase,  construction,  and  maintenance, 
res]  eetivc'Ij',  of  (lie  property  necessary  to  the  carrying  ou  of  its  business,  and  also  the  gross  cash 
xe<;eipts  annually,  for  the  same  period,  from  all  sources. 

137 


§348 


CORPORATIONS. 


[Div.  I,  Pabt  IV, 


Jtc/iiJ^al  to  mnJ:a  i^tatcment  a  misdemeanor. 

Sec.  4.  Every  corporation,  company,  or  person  who  shall  refuse  or  neglect  to  furnish  the 
Btatementft  mentioned  in  aectiona  two  and  three  of  tliis  act,  or  either  of  them,  or  wl)o  sliall  fur- 
nish any  false  statement  in  relation  thereto,  within  thirty  days  after  havin;^  heen  required  or 
rcque^stcd  to  furnisii  the  same  as  prescribed  in  sectiona  one,  two,  and  three  of  this  act,  shall  be 
deemed  guilty  of  a  misdemeanor. 

Cop]/  of  atatemi'.nt  to  he  filed. 

Si:r.  5.  Upon  receiving  the  statements  provided  for  in  sections  two  and  three  of  this  act,  the 
board  of  supervisors,  town  council,  board  of  aldermen,  or  other  legislative  body,  shall  cause  a 
coj)y  thereof  to  be  made  and  filed  in  the  office  of  the  county  recorder  of  such  city  and  county, 
or  of  the  county  wherein  such  city  or  town  is  situated. 

PatcM  to  be  equal. 

Sec.  6.  Kates  for  the  furnishing  of  wa*.er  shall  be  equal  and  tmiform.  There  shall  be  no  dis- 
criminations made  between  persons,  or  between  persons  and  corporations,  or  as  to  the  use  of 
water  for  private  and  domestic,  and  public  or  municipal,  purposes;  provided,  that  nothing  herein 
shall  be  sd  construed  as  to  allow  any  person,  company,  association,  or  corporation  to  charge  any 
person,  corporation,  or  association  anything  for  water  furnished  them  when,  by  any  present  law, 
such  water  is  free. 

Excesn  ill  charging  rates  for/eitt  franchise,  etc. 

Sec.  7.  Any  person,  company,  association,  or  corporation  charging,  or  attempting  to  collect 
from  the  persons,  corporations,  or  municipalities  usiug  water,  any  sum  in  excess  of  the  rate 
fixed  as  hereinbefoi'e  designated,  shall,  upon  the  complaint  of  said  board  of  supervisors,  town 
council,  board  of  aldermen,  or  other  legislative  body  thereof,  or  of  any  water-rate  payer,  and 
upon  conviction  before  any  court  of  comi)etent  jurisdiction,  shall  forfeit  the  franchises  and 
water-works  of  such  person,  company,  association,  or  corporation  to  the  city  and  county,  city, 
or  town  wherein  the  said  water  is  furnished  and  used. 

Penalti/  to  ftuperviwrs  neglecting  to  enforce  act. 

Sec.  8.  Any  board  of  supervisors,  or  other  legislative  body  of  any  city  and  county,  city,  or 
town  which  shall  fail  or  refuse  to  perform  any  of  the  duties  prescribed  by  this  act,  at  the  time 
and  in  the  manner  hereinbefore  specified,  shall  be  deemed  guilty  of  malfeasance  in  oflice,  and 
upon  conviction  thereof,  at  the  suit  of  any  interested  party,  in  any  court  of  competent  jurisdic- 
tion, sliall  be  removed  from  office. 

Sec.  9.     This  act  shall  take  effect  and  be  in  force  from  and  after  the  date  of  its  passage. 

Contract  vrith  city  for  the  purchase  by 
It  of  •water  for  a  definite  period  ji/ti'a  vires: 
San  Dieijo  W.  Co.  v.  San  Diego,  59  Cal.  517. 

Right  to  lay  pipes  in  streets:  See  the 
constitutional  provisions  in  regard  to  fi.xing 
water  rates,  and  the  right  to  lay  pipes  in 
streets  of  cities  or  towns  construed  in  P'ople 
V.  Stephens,  62  Cal.  209;  Woodland  v.  Stephens, 
Id.  2:59. 

Water  rates. — As  to  the  power  of  boards  of 
supervisors  to  lix  rates  under  the  new  confftitu- 
tion,  anything  in  any  statute  to  the  contrary, 
see  S.  F.  P.  IV.  Factory  v.  Brickwcdel,  GO  CaL 
IGG.  The  commission  for  fixing  water  rates 
provided  for  by  the  act  under  which  the 
Spring  Valley  water-works  was  originally  in- 
corporated was  superseded  by  the  new  consti- 
tution and  the  act  of  1881  passed  in  |)ursuaiice 
thereof,  so  that  mandamus  will  not  lie  to  com- 
pel tlie  appointment  of  a  new  commissioner  in 
the  jilace  of  one  deceased:  S.  V.  IV.  IV.  v.  San 
Francisco,  Gl  Id.  3. 

Fixing  to  iter  rates  is  not  a  judicial  act,  and  a 
writ  of  jirohibition  will  not  lie  to  restrain  the 
supervisors  from  performing  that  duty:  S.  V.  W, 
W.  V.  Uartlrlt,  G3  Cal.  245. 

Injunction  will  not  lie  to  prevent  the  sup^rvi^ora 
from  fixing  the  water  rates  of  the  .Spring  Valley 
water- works.  The  mode  of  so  doing  provided 
by  the  new  constitution  is  valid:  iS.  V.  W.  W, 
V.  Barl.lett,  8  Saw.  555. 

Exsroisiug  right  of  eminent  domain  exists 
on'v  in  cases  of  real  necessity;  other  water- 
works cannot  be  condemned  simply  because  it 
woul  1  be  a  great  convenience  to  have  them  in 
supplying  a  large  city:  S.  V.  W,  W.  v.  San 
Mateo  W.  U'.,  64  Cal.  123. 


Water  rights:  See  sees.  1410  et  scq. 

Corporations  supplying  -water  to  cities. 
A  corporation,  or  an  individual  who  obtains 
from  the  authorities  of  a  city  permission  to  lay 
pipes  in  the  streets  for  the  sale  of  water,  is 
obliged  to  sell  to  all  who  tender  the  rate  fixed 
therefor:  2IcCrary  v.  Deaudry,  6  West  Coast 
Rep.  C97;  here  the  defendant  laid  pi;^es  for  his 
own  use,  and  for  those  of  "the  liiliy  section  of 
said  city  "  of  Los  Angeles.  Under  the  constitu- 
tionof  1879.  article  14,  theplaiutiff,  oneof  tlieres- 
identsof  that  district,  was,  in  theabove  case,  held 
entitled  to  a  right  to  water  on  jiaying  therefor. 

Wheie  the  defendant,  owning  water-works, 
leased  them  to  the  plaintiff  on  the  condition 
that  water  for  domestic  purposes  only  should  be 
taken  from  them,  it  was  held  the  plaintiff  had 
no  right  to  the  surplus  water,  and  that  defend- 
ant might  take  water  to  si>rinklo  the  streets: 
L.  A.  \V.  Co.  v,  Los  Angeles,  55  Cal.  170. 

For  (lec'sions  relating  to  the  Spring  Valley 
water- works,  created  under  the  act  of  1858,  and 
the  new  constitution,  see  S.  V.  IT.  W.  v.  San 
Francisco,  52  Cal.  Ill;  Same  v.  Bnpnt,  Id.  132; 
San  Francisco  v.  S.  V.  W.  W.,  53  Id.  603,  and 
infra. 

Duty  to  furnish  "water  to  prisom,  hos- 
pitals, poor-houses,  and  schools  at  reasonable 
rates,  and  for  the  extinguishment  of  fires, 
flushing  of  sewers,  and  watering  of  parks  free: 
See-S.  V.  W.  W.  v.  San  Frnndsco,  52  Cal.  Ill; 
San  Diego  IV.  Co.  v.  San  Di<^go,J>0  Id.  517; 
and  the  relieving  of  the  Spring  Valley  water- 
works from  the  duty  to  furnish  water  free  for 
any  pur[iose:  See  .S'.  V.  IT.  IV.  v.  SupTrlsois,  7 
Pac.  C.  L.  J.  G14;  .s',  F.  I\  II'.  Factory  v. 
Brickirclel,  GO  Cal.  160;  S.  V.  W.  W.  v.  San 
Francisco,  61  Id.  18. 


138 


Title  VIIL]  WATER  AND  CANAL  CORPORATIONS.  §5  549-552 

549.  Duties  of  water  corporations. 

Sec.  54^.  All  corporations  formed  to  supply  water  to  cities  or  towns  must 
furnish  pure  fresh  water  to  the  inhabitants  thereof,  for  family  uses,  so  long  as 
the  supply  permits,  at  reasonable  rates  and  without  distinction  of  persons, 
upon  proper  demand  therefor;  and  must  furnish  water  to  the  extent  of  their 
means,  in  case  of  fire  or  other  g-reat  necessity,  free  of  charge.  The  rates  to  be 
charged  for  water  must  be  determined  by  commissioners,  to  be  selected  as  fol- 
lows: two  by  the  city  and  county,  or  city  or  town  authorities,  or  when  there 
are  no  city  or  town  authorities,  by  the  board  of  supervisors  of  the  county,  and 
two  by  the  water  company;  and  in  case  a  majority  cannot  agree  to  the  valua- 
tion, the  four  commissioners  must  choose  a  fifth  commissioner;  if  they  cannot 
agree  upon  a  fifth,  then  the  county  judge  of  the  county  must  appoint  such  fifth 
person.  The  decision  of  the  majority  of  the  commissioners  shall  determine  the 
rates  to  be  charged  for  water  for  one  year,  and  until  new  rates  are  established. 
The  board  of  supervisors,  or  the  proper  city  or  town  authorities,  may  prescribe 
proper  rules  relating  to  the  delivery  of  water,  not  inconsistent  with  the  laws  of 
the  state.  \ Amendment ,  approved  Jilarck  30,  1874;  Amendments  1873—4,  210; 
took  ejfect  July  1,  1874.] 

Stats.  1S58,  219,  sec.  4. 

550.  ItUjld  to  use  streets,  ways,  alleys,  and  roads. 

Sec.  550.  Any  corporation  created  under  the  provisions  of  this  part,  for  the 
purposes  named  in  this  title,  subject  to  the  reasonable  direction  of  the  board  of 
supervisors,  or  city  or  town  authorities,  as  to  the  mode  and  manner  of  using 
such  right  of  way,  may  use  so  much  of  the  streets,  ways,  and  alleys  in  any 
town,  city,  or  city  and  county,  or  any  public  road  therein,  as  may  be  necessary 
for  laying  pipes  for  conducting  water  into  any  such  town,  city,  or  city  and  county, 
or  through  or  into  any  part  thereof. 

Stats.  ISGS,  'J'JO,  sec.  5. 

551.  To  build  and  keep  bridges  in  repair. 

Sec.  551.  Every  water  or  canal  corporation  must  construct  and  keep  in  good 
repair,  at  all  times,  for  public  use,  across  their  canal,  flume,  or  water-pipe, 
all  of  the  bridges  that  the  board  of  supervisors  of  the  county  in  which  such 
canal  is  situated  may  require,  the  bridges  being  on  the  lines  of  public  high- 
ways and  necessary  for  public  uses  in  connection  with  such  highways;  and 
all  water-works  must  be  so  laid  and  constructed  as  not  to  obstruct  public 
highways. 

S  til  is.  1SG2,  041,800.  4. 

Keeping  woiks  in  repair:  See  subject  discussed  in  note  to  sec.  1410. 

552.  Right  to  rcater  to  irrigate  lands  sold  by  water  or  irrigating  company. 

Sec.  552.  Whenever  any  corporation,  organized  under  the  laws  of  this  state, 
furnishes  water  to  irrigate  lands  which  said  corpoi'ation  has  sold,  the  right  to 
the  flow  and  use  of  said  water  is  and  shall  remain  a  perpetual  easement  to  the 
land  so  sold,  at  such  rates  and  terms  as  may  be  established  by  said  corporation 
in  pursuance  of  law.  And  whenever  any  person  who  is  cultivating  land  on  the 
line  and  within  the  flow  of  any  ditch  owned  by  such  corporation,  has  been 
furnished  water  by  it  with  which  to  irrigate  his  land,  such  person  shall  be 
entitled  to  the  continued  use  of  said  water,  upon  the  same  terms  as  those  who 
have  purchased  their  land  of  the  corporation.  [New  section,  ajiproved  April  3, 
187G;  Amoidments  1875-6,  77;  took  cfffctfrom  paiisagc.\ 

139 


§  552  CORPORATIONS.  [Div.  I,  Part  IV, 

An  Act  to  rerjidafp  and  control  the  sale,  rental,  and  diitrihidion  0/ appropncctcd  vmterin  thU  utate, 

other  (hail  iii  any  city,  city  and  connti/,  or  town  therein,  and  to  secure  the  r'ujhta  of  way  for  the 

conveyance  o/nuch  water  to  the  placen  0/  itxe. 

[Approved  March  12, 1383;  1885,  95.] 
Use  of  appropriated  water  pullic. 

Skction  1.  Tlie  use  of  all  water  now  appropriated,  or  that  may  hereafter  be  appropriated, 
for  irrigation,  sale,  rental,  or  distribution,  is  a  public  use,  and  the  right  to  collect  rates  or  com- 
pensation for  use  of  such  water  is  a  franchise,  and  except  when  so  furnished  to  any  city,  city 
any  county,  or  town,  or  the  inhabitants  thereof,  shall  be  regulated  and  controlled  in  the  counties 
of  this  state  by  the  several  boards  of  supervisors  thereof,  in  the  manner  prescribed  iu  this  act. 
Supervisors  may  fx  rales. 

Sec.  2.  The  several  boards  of  supervisors  of  this  state,  on  petition  and  notice  as  provided  ia 
section  three  of  this  act,  are  hereby  authorized  and  required  to  fix  and  regulate  the  maxiuiuna 
rates  at  which  any  person,  conipanj',  association,  or  corporation,  having  or  to  have  appropriated 
water  for  sale,  rental,  or  distribution  iu  each  of  such  counties,  may  and  shall  sell,  rent,  or  dis- 
tribute the  same. 
Petition  for  fxinrj  rates. 

Sec.  3.  \Vbenever  a  petition  of  not  less  than  twenty-five  inhabitants,  who  are  taxpayers  of 
any  county  of  this  state,  shall,  in  writing,  petition  the  board  of  supervisors  thereof,  to  be  filed 
with  the  clerk  of  said  board,  to  regulate  and  control  the  rates  and  compensation  to  bo  collected 
by  any  person,  company,  association,  or  corporation,  for  the  sale,  rental,  or  distribution  of  any 
appropriated  water,  to  any  of  the  iuhabitanis  of  such  county,  and  shall  in  such  petition  specify 
the  persons,  companies,  associations,  or  corporations,  or  any  one  or  more  of  them,  whoso  water 
rates  are  therein  petitioned  to  be  regulated  or  controlled,  the  clerk  of  such  board  shall  immedi- 
ately cause  such  petition,  together  with  a  notice  of  the  time  and  place  of  hearing  thereof,  to  bo 
published  in  oue  or  more  newspapers  published  in  such  county;  and  if  no  newspaper  be  pub- 
lished therein,  then  sliall  cause  copies  of  such  petition  and  notice  to  be  posted  in  not  less  than 
three  public  places  in  sucli  counties,  and  such  publication  and  notice  shall  be  for  not  less  tlian 
four  weeks  next  before  the  hearing  of  said  petition  by  said  board;  sucli  notice  to  be  attached  to 
said  petition  shall  specify  a  day  of  the  next  regular  term  of  the  session  of  the  said  board,  not 
less  than  thirty  days  after  the  first  publication  or  posting  tiiereof,  for  the  hearing  of  said  peti- 
tion, which  shall  impart  notice  to  all  such  persons,  companies,  associations,  and  corporations 
mentioned  in  such  petition,  and  all  persons  interesteil  in  the  matters  of  such  petition  and  notice. 
Such  board  naay  also  cause  citations  to  issue  to  any  person  or  persons  within  such  county,  to 
attend  and  give  evidence  at  the  hearing  of  such  petition,  and  may  compel  such  attendance  by 
attachment. 
HeariiKj  of  petition —  Value  of  water-irorls. 

Sec.  4.  At  the  hearing  of  said  petition  the  board  of  supervisors  shall  estimate,  as  near  as 
may  be,  the  value  of  the  canals,  ditches,  flumes,  water-chutes,  and  all  other  property  actually 
used  and  useful  to  the  appropriation  and  furnishing  of  such  water,  belonging  to  and  possessed 
by  each  person,  association,  company,  or  corporation,  whose  franchise  siiall  be  so  regulated  and 
controlled;  and  shall  in  like  manner  estimate  as  to  each  of  such  persons,  companies,  associa- 
tions, and  corporations,  their  annual  reasonable  expenses,  including  the  cost  of  repairs,  manage- 
ment, and  operating  such  works;  and,  for  the  purpose  of  such  ascertainment,  may  re(piire  the 
attendance  of  persons  to  give  evidence,  and  the  production  of  papers,  books,  and  accounts,  and 
may  compel  the  attendance  of  such  persons  and  the  production  of  papers,  books,  and  accounts, 
by  attachments,  if  within  their  respective  counties 
Mules  to  be  observed  in  fximj  rates. 

Sec.  5.  In  the  regulation  and  control  of  such  water  rates  for  each  of  such  persons,  companies, 
associations,  and  corporations,  such  board  of  sup^Tvisors  may  establish  dilTerent  rates  at  which 
water  may  and  shall  be  sold,  rented,  or  distributed,  as  the  case  may  be;  and  may  also  establish 
dilTerent  rates  and  compensation  for  such  water  so  to  hi  furnished  for  the  several  different  uses, 
such  as  miuiiig,  irrigating,  mechanical,  manufacturing,  and  domestic,  for  whicli  sucli  water  shall 
be  supplied  to  sucii  inhabitants,  but  such  rates  as  to  each  class  shall  be  equal  and  uniform.  Said 
boards  of  supervisors,  iu  fixing  such  rates,  shall,  as  near  as  may  be,  so  adjust  them  that  the  net 
annual  receipts  and  profits  thereof  to  the  said  persons,  companies,  associations,  and  corporations 
so  funushing  such  water  to  such  inhabitants  sliall  hi  not  less  than  six  nor  more  than  eighteea 
per  cent  upim  the  said  value  of  the  canals,  ditches,  flames,  chutes,  and  all  other  property  actu- 
ally used  an. I  usefid  to  the  appropriation  and  furnisliing  of  such  water  of  each  of  such  i);'rson3, 
comijanies,  associations,  and  corporations;  but  in  estimating  such  net  receipts  and  profits,  the 
cost  of  any  exteusions,  enlargements,  or  other  permanent  improvements  of  such  water  rights  or 
water-works  shall  not  be  included  as  part  of  tlie  said  expenses  of  management,  repairs,  and 
operating  of  such  works,  but  when  accomplished,  may  and  shall  be  included  in  the  present  cost 
and  cash  value  of  such  work.  In  fixing  siid  rates,  within  the  limits  aforesaid,  at  which  water 
shall  bo  so  furnished  as  to  each  of  such  persons,  comi)auies,  associations,  and  corporations,  each 
of  said  boar  I  of  sii[)ervisor3  may  likewise  take  iato  estimation  any  and  all  other  f;icts,  circum- 
stances, and  couditions  pertinent  thereto,  to  the  end  and  purpose  that  said  rates  shall  be  equal, 
reasonable,  and  just,  both  to  such  persons,  companies,  associations,  and  corporations,  and  to  said 
inhabitants.  The  said  rates,  when  so  fixed  by  such  board,  shall  be  binding  and  conclusive  for 
not  less  than  oue  year  next  after  their  establishment,  and  until  established  anew  or  abrogated 
by  such  board  of  supervisors,  as  hereinafter  provi  led.  And  until  such  rates  shall  be  so  estab- 
lished, or  after  they  shall  have  been  abrogated  by  sach  board  of  supervisors  as  iu  this  act 

140 


Title  VIII]  WATER  AND  CANAL  CORPORATIONS.  §552 

provided,  the  actual  rates  established  and  collected  by  each  of  the  persons,  companies,  associa* 

tious,  and  corporations  now  furuiahing,  or  that  sliall  liereafter  furnish,  ajipropriatod  waters  for 
Bale,  rental,  or  ilistrihulion  to  the  iniiabitants  of  any  of  the  counties  of  this  state,  shall  be 
deemed  and  accepted  as  the  legally  established  rates  thereof. 
CliaiKjini)  rcUe^. 

Sec.  0.  At  any  time  after  the  establishment  of  such  water  rates  by  any  board  of  supervisors 
of  this  state,  the  same  may  be  established  anew,  or  abrogated  in  wliole  or  in  i)art  by  such  board, 
to  take  ed'oct  not  less  than  one  j'car  next  after  sucli  lirst  establishment,  but  sul)ject  to  said  lim- 
itation (;f  one  year,  to  take  effect  inimetliatcly  in  the  following  manner:  Upon  the  written  peti- 
tion of  inhabitants  as  hereinbefore  provided,  or  upon  the  written  petition  of  any  of  tiie  persons, 
conijianies,  associations,  or  corporations,  tlie  rates  and  compensations  of  whose  appropriated 
waters  have  already  been  fixed  and  regulated,  and  are  still  sul)ject  to  such  regulation  by  any 
board  of  supervisors  of  this  state,  as  in  this  act  provided;  and  upon  tiie  like  publication  or 
posting  of  such  petition  and  notice,  and  for  tlic  like  pcrioil  of  time  as  hereinbefore  provided, 
Buch  board  of  supervisors  shall  proceed  anew,  in  the  manner  Iiereinbefore  ]irovided,  to  fix  and 
establisli  the  water  rates  for  such  person,  comi)any,  association,  or  corporation,  or  any  number 
of  them,  in  the  same  manner  as  if  sucli  rates  liad  not  lieeii  previously  establislie<i,  and  may, 
upon  tlic  petition  of  sucli  inhabitants,  but  not  otherwise,  abrogate  any  and  all  existing  rates 
theretofore  estab.ished  by  sucli  board.  All  water  rates,  when  fixed  and  estal)lished  as  iiereia 
provided,  shall  be  in  force  and  effect  until  establislied  anew  or  abrogated,  as  proviiled  iu  this 
act. 
Secord  of  rales  to  he  published. 

Sec.  7.  Each  board  of  supervisors  of  this  state,  when  fixing  and  establishing,  or  fixing  and 
establishing  anew,  or  abolishing,  any  previously  estal)lislicd  water  rates,  as  Iiereinbefore  provided, 
shall  cause  a  record  to  be  made  tiiereof  in  tlie  records  of  such  board,  and  cause  tlie  same  to  be 
publislicd  or  jiosted  iu  the  manner  ami  for  the  time  recjuired  for  the  publication  or  posting  of 
said  petitions  and  notices. 
Wafer  to  be  farnuhi'd  at  rates  fxed, 

Stc.  8.  Any  and  all  persons,  companies,  associations,  or  coqiorations,  furnishing  for  sale, 
rental,  or  distiibution,  any  appropriated  waters  to  the  inhabitants  of  any  county  or  counties  of 
this  state  (other  than  to  the  inhabitants  of  any  city,  city  and  county,  or  town,  therein),  shall 
BO  sell,  rent,  or  d.stribute  such  waters  at  rates  not  exceeding  the  establislied  i-ates  fixed  and 
regulated  therefor  by  the  boards  of  supervisors  of  such  couniies,  or  as  fixed  and  established  by 
Buch  person,  company,  association,  or  corporation,  as  provided  in  this  act. 
Penalty  for  excessive  charges. 

Sec.  y.  If  any  person,  company,  association,  or  corporation,  whose  water  rates  for  any 
county  of  this  state  have  been  fixed  and  regu'ated  by  a  board  of  supervisors,  as  in  this  act  pro- 
vided, and  W'hile  .such  rates  arc  in  force,  sliall  collect  for  any  appropriated  water  furnislied  to 
any  inhabitant  of  sucli  county  water  rates  in  excess  of  such  established  rates,  sliall  be  li.iblc,  in 
an  action  by  any  such  inhabitant  so  ng  ;rieved,  to  a  recovery  of  the  wliole  rata  so  collected, 
together  with  actual  damages  sustained  by  such  inhabitant,  with  costs  of  suit. 
To  Hell  to  all  persons. 

Si:c.  10.  Every  person,  company,  association,  and  corporation,  having  in  any  county  in  the 
state  (other  than  in  any  city,  city  ;ind  county,  or  town  therein)  appropriated  waters  for  sale, 
rental,  or  distribution,  to  the  inhabitants  <  f  suc'.i  county,  upon  demand  therefor,  and  tender  in 
money  of  such  established  water  rates,  shall  bo  obliged  to  sell,  lent,  or  distribute  such  water 
to  such  inhabitants  at  the  established  rates  rcgnlatc<l  and  fixc;l  therefor,  as  in  this  act  provided, 
whether  bo  fixed  by  the  board  of  supervisors  or  odierwise,  to  tlie  extent  of  the  a.:tnal  supply  of 
such  appropriated  waters  of  such  perso:i,  company,  association,  or  corporation,  for  ."^ueh  pur- 
poses. If  any  jierson,  company,  association,  or  corporation,  having  water  for  such  use,  shall 
refuse  compliance  with  such  demand,  or  shall  neglect,  for  the  period  of  five  days  after  such 
demand,  to  comply  therewith  to  tlie  extent  of  his  or  its  reasonable  ability  so  to  do,  shall  be 
liaLlo  ill  damages  to  the  extent  of  the  actual  injury  sustained  by  the  person  or  party  making 
Buch  demand  and  tender,  to  be  recovered,  with  costs. 
Condemniiiij  hind  for  rirjht  of  way. 

Sec  11.  Whenever  any  person,  company,  association,  or  corporation  shall  have  acquired  the 
right  to  appropriated  water,  or  shall  liave  acquired  the  right  to  appropriate  such  water  in  this 
state,  such  person,  company,  association,  or  corporation  may  proceed  to  condemn  the  lands 
and  premises  necessary  to  such  right  of  way.  under  the  provisions  of  Title  VII.  of  I'art  lil.  of 
the  Code  of  t.'i\  il  Procedure  of  this  state,  and  amendments  made  and  to  be  made  thereto,  and 
all  the  provisions  of  said  code,  so  far  as  the  same  can  bo  made  applicable,  relating  to  the  con- 
demnation and  taking  of  property  for  public  uses,  shall  bo  applicable  to  the  provisions  of  this 
act. 

Sec.  12.     This  act  sliall  take  efiFect  and  be  in  force  from  and  after  its  passage. 

See  the  earlier  acts  upon  canal  and  ditch  Water  companies  for  Irrigating  pur- 
corporations:  Act  May  14,  18G2,  Stats.  1SG2,  po-ea. — Duty  to  furnish  water  to  all  who 
541;  and  tiie  subsequent  act,  April  2,  1870,  como  within  the  purview  of  thostatutc:  Pricev. 
Stats.  1870,  GGO.  Sdo  also  Statutes  iu  Force,  Jiicerside  Land  and  Irrigaluij  Co.,  .jG  Cal.  43L 
^t.  Water  CpinmissioDers,  See,  further,  sees.  1410  et  seq^.,  and  notes. 

141 


S§  657-561  COEPORATICNS.  [Div.  I,  Paet  IV, 


TITLE  IX. 
HOMESTEAI>  CORPOKATIONS. 

557.  Time- of  corporate  existence. 

Sec.  557.  Corporation  organized  for  the  purpose  of  acquiring  lands  in  large 
tracts,  paying  off  incumbrances  thereon,  improving  and  subdividing  them  into 
homestead  lots  or  parcels,  and  distributing  them  among  the  shareholders,  and 
for  the  accumulation  of  a  fund  for  such  purposes,  are  known  as  homestead-cor- 
porations, and  must  not  have  a-coi'porate  existence  for  a  longer  period  than  ten 
years. 

558.  By-laws  to  specify  time  andnmount  of  payment  of  installments,  etc. 

Sec.  558.  Such  corporations  must  specify  in  their  by-laws  the  times  when 
the  installments  of  the  capital  stock  are  payable,  the  amount  thereof,  and  the 
fines,  penalties,  or  forfeitures  incurred  in  case  of  default.  A  printed  copy  of 
the  articles  of  incorporation  and  by-laws  must  be  furnished  io  any  shareholder 
on  demand. 

559.  Advertisement  and  sale  of  delinquent  and  forfeited  shares. 

Sec.  559,  "Whenever  any  shares  of  stock  are  declared  forfeited,  by  resolution 
of  the  board  of  directors,  the  directors  may  advertise  the  same  for  sale,  giving 
the  name  of  the  subscriber  and  the  number  of  shares,  by  notice  of  not  less  than 
three  weeks,  published  at  least  once  a  week  in  a  newspaper  of  general  circula- 
tion in  the  city,  town,  or  county  where  the  principal  place  of  business  of  such 
corporation  is  located.  Such  sale  must  be  made  at  auction,  under  the  direction 
of  the  secretary  of  the  company.  The  corporation  may  be  a  bidder,  and  the 
shares  must  be  disposed  of  to  the  highest  bidder  for  cash.  No  defect,  infor- 
mality, or  irregularity  in  the  proceedings  respecting  the  sale  invalidates  it,  if 
notice  is  given  as  herein  provided.  After  the  sale  is  made,  the  secretary  must, 
on  receipt  of  the  purchase  money,  transfer  to  the  purchaser  the  shares  sold,  and 
after  deducting  from  the  proceeds  of  such  sale  all  installments  then  due,  and 
all  expenses  and  charges  of  sale,  must  hold  the  residue  subject  to  the  order  of 
the  delinquent  subscriber. 

560.  31ay  borrow  and  loan  funds. 

Sec.  5G0.  Homestead  corporations  may^  borrow  money  for  the  purposes  of 
the  corpoi'ation,  not  exceeding  at  any  one  time  one  fourth  of  the  aggregate 
amount  of  the  shares  or  parts  of  shares  actually  paid  in,  and  the  income  thereof; 
no  greater  rate  of  interest  must  be  paid  therefor  than  twelve  per  cent  per  annum. 
For  the  pui-pose  of  completing  the  purchase  of  lands  intended  to  be  divided 
and  distributed,  they  may  borrow  on  the  security  of  their  shares  on  the  land 
thus  purchased,  or  that  owned  by  the  corporation  at  the  time  of  procuring  the 
loan,  any  sum  of  money  which,  together  with  the  interest  contracted  to  become 
due  thereon,  will  not  exceed  ninety  per  cent  of  the  unpaid  amount  subscribed 
by  the  shareholders;  but  no  loan  must  be  made  to  the  corporation  for  a  term 
extending  beyond  that  of  its  existence. 

561.  Minor  children,  wards,  and  married  women  may  own  stock. 

Sec.  5G1.  Such  shares  of  stock  in  homestead  corporations  as  may  be  acquired 
by  children,  the  cost  of  which,  and  the  deposits  and  assessments  on  which,  are 
paid  from  the  personal  earnings  of  the  children,  or  with  gifts  from  persons  other 

142 


Title  IX.]  HOMESTEAD  CORPORA'nCNS.  §§  5G2-535 

than  their  male  parents,  may  be  taken  and  held  for  them  by  their  parents  or 
guardians.  Married  women  may  hold  such  shares  as  they  acquire  with  their 
personal  earnings,  or  those  of  their  children,  voluntarily  bestowed  therefor,  or 
from  property  bequeathed  or  given  to  them  by  persons  other  than  their  hus- 
bands. 

562.  ForfeUurefor  speculating  in  or  owning  lands  exceeding  two  hundred  thou- 
sand dollars. 

Sec.  5G2.  Homestead  corporations  must  not  purchase  and  sell,  or  otherwise 
acquire  and  dispose  of,  real  property,  or  any  interest  therein,  or  any  personal 
property,  for  the  sole  purpose  of  speculation  or  profit.  Nor  must  any  such 
corporation  at  any  one  time  own  or  hold,  in  trust  or  otherwise,  for  its  purposes, 
real  property,  or  any  interest  therein,  which  in  the  aggregate  exceeds  in  cash 
value  the  sum  of  two  hundred  thousand  dollars.  For  any  violation  of  the  pro- 
visions of  this  section  corporations  forfeit  their  corporate  rights  and  powers. 
On  the  application  of  any  citizen  to  a  court  of  competent  jurisdiction,  such  for- 
feiture may  be  adjudged,  and  the  judgment  carries  with  it  costs  of  the  proceed- 
ings. 

563.  Mlien  corporation  is  terminated,  and  how. 

Sec.  5G3.  Except  for  the  purpose  of  winding  up  and  settling  its  affairs,  every 
homestead  corporation  must  terminate  at  the  expiration  of  the  time  fixed  for  its 
existence  in  the  articles  of  incoi'poration,  or  when  dissolved  as  provided  in  this 
part.  No  dividend  of  funds  must  be  made  on  termination  of  its  corporate 
existence  until  its  debts  and  liabilities  are  paid;  and  upon  the  final  settlement 
of  the  affairs  of  the  coi^poration,  or  upon  the  termination  of  its  corporate  exist- 
ence, the  directors,  in  such  manner  as  they  may  determine,  must  divide  its 
property  among  its  shareholders  in  proportion  to  their  respective  interests,  or, 
upon  the  application  of  a  majority  in  interest  of  the  stockholders,  must  sell  and 
dispose  of  any  or  all  of  the  real  estate  of  the  corporation  upon  such  terms  as 
may  bo  most  conducive  to  the  interests  of  all  the  stockholders,  and  must  convey 
the  same  to  the  purchaser,  and  distribute  the  proceeds  among  the  shareholders, 
or  may  at  anj'  time,  when  best  for  the  interests  of  all  the  shareholders,  cause  the 
lands  of  the  corporation  to  be  subdivided  into  lots  and  distributed,  by  sale  for 
premiums,  at  auction  or  otherwise,  among  the  shareholders. 

564.  Payment  o/ premiums. 

Sec.  5G4.  Such  premiums  on  lots  may  be  made  payable  at  the  time  they  are 
bid  off,  and,  if  not  so  paid  on  any  lot  of  land,  the  directors  may  immediately 
offer  the  same  for  sale  again.  If  made  payable  at  a  future  day,  and  any  share 
holder  fails  to  pay  his  bid  on  the  day  the  same  is  made  due  and  payable,  the 
directors  may  advertise  and  sell  the  shares  of  stock  representing  the  lots  of 
land  on  which  the  premiums  remain  unpaid,  in  the  manner  provided  in  the 
by-laws  for  the  sale  of  shares  on  account  of  delinquent  installments  and  pre- 
miums. 

665.   Annual  report  to  be  published. 

Sec.  505.  The  actual  financial  condition  of  all  homestead  corporations  must, 
by  the  directors  thereof,  be  published  annually  in  the  [a]  newspaper  published 
at  the  principal  place  of  business  of  the  corporation,  for  four  weeks,  if  pub- 
lished in  a  weekly,  and  two  weeks,  if  published  in  a  daily.  The  statement 
must  be  made  up  to  the  end  of  each  year,  and  must  be  verified  by  the  oath  of 
the  president  and  secretary,  showing  the  items  of  property  and  liabilities. 

143 


§§  566-573  CORrORATIONS.  [Drvr.  I,  Paht  17. 

563.   Publication  in  certain  cases. 

Sec.  50G.  In  any  case  in  which  a  publication  is  required,  and  no  newspaper 
is  published  at  the  principal  place  of  business,  the  publication  may  be  made  in 
a  paper  published  in  an  adjoining  county. 

An  Art  .mpplemenfary  fo  an  act  entitled  "An  act  to  authorize  the  formation  of  corporations  to 

provide  Lite  inembrrs  thereof  with  homeMeaila,  or  lots  of  (and  suitable  for  homesteads,"  approved 

May  twentieth,  eighteen  hundred  and  sixty-on£, 

[Approved  March  23,  1874;  1873-4,  625.] 
Extension  of  time  for  homestead  corporations. 

Section   1.     Any  corporation  formed  under  the  act  to  which  this  act  is  supplemental,  whose 
period  of  existence  is  not  stated  in  its  articles  of  incorporation  to  be  ten  years,  may  coulinuc  its 
corporate  existence  for  ten  years  from  the  date  of  filing  its  articles  of  incorporation,  upon  com- 
plying with  the  provisions  of  this  act. 
How  existence  continued. 

Sec.  2.  Any  such  corporation  existing  on  the  first  day  of  January,  eighteen  hundred  and 
Beventy-fonr,  may,  at  any  time  before  its  period  of  existence,  as  stated  in  its  articles  of  incor- 
poration, shall  expire,  continue  its  existence,  as  stated  in  section  one  of  tliis  act,  by  a  majority 
vote  cf  its  board  of  trustees  at  any  meeting  of  such  board,  or  by  a  vote  of  a  majority  of  the 
stockholders,  as  the  board  of  trustees  may  elect.  A  certificate  of  the  action  of  the  directors, 
signed  by  t!iem  and  their  secretary,  when  the  election  is  made  by  their  vote,  or  upon  the  writ- 
ten consent  of  the  stockholders  or  members,  or  a  certificate  of  the  proceedings  of  the  meeting 
of  the  stockholders  or  members,  when  such  election  is  made  at  any  such  meeting,  signed  by  the 
chairman  and  secretary  of  the  meeting  and  a  majority  of  the  directors,  must  be  file  1  in  the  office 
of  the  clerk  of  the  county  where  the  original  articles  of  incorporation  are  filed,  and  a  certified 
copy  thereof  must  be  filed  in  the  office  of  the  secretary  of  state;  and  thereafter  tlie  corporation 
shail  continue  its  existence  under  the  provisions  of  this  act,  and  shall  possess  all  the  rights  and 
powers,  and  be  subject  to  all  the  obligations,  restrictions,  and  limitations  prescribed  by  the  act 
of  which  this  is  supplementary. 

Sec.  3.     This  act  shall  take  effect  from  and  after  its  passage. 


TITLE  X. 
SAYINGS  AND  LOAN  CORPORATIONS. 

571.  May  loan  money — On  what  terms,  how,  and  to  whom,  and  how  long. 

Sec.  571.  Corporations  organized  for  the  purpose  of  accumulating  and  loan- 
ing the  funds  of  their  members,  stockholders,  and  depositors,  may  loan  and 
invest  the  funds  thereof,  receive  deposits  of  money,  loan,  invest,  and  collect 
the  same,  with  interest,  and  may  repay  depositors  with  or  without  interest. 
No  such  corporation  mhst  loan  money,  except  on  adequate  security  on  real  or 
personal  property,  and  such  loan  must  not  be  for  a  longer  period  than  six 
years. 

Stats.  18G2,  199,  sees.  4,  5;  1864,  158,  sec.  2.     of  receiving  deposits  and  negotiating  loans,  are 
Banks  cannot  l)e  created  except  under  gen-     valid  as  long  as  they  do  not  issue  pajier  to  cir- 
eral  laws:  Const.  Cal.,  art.  12,  sec.  5.  Thatasso-     ulate  as  money,  see  Bank  of  Sonoma  v.  Fair- 
ciations  called  "banks,"  formed  for  the  purpose    hanks,  52  Cal.  19o. 

572.  Capilal  stock,  and  rights  and  privileges  thereof. 

Sec.  572.  "When  savings  and  loan  corporations  have  a  capital  stock  specified 
in  their  articles  of  incorporation,  certificates  of  the  ownership  of  shares  may 
be  issued;  and  the  rights  and  privileges  to  be  accorded  to,  and  the  obligations 
to  be  imposed  upon,  such  capital  stock,  as  distinct  from  those  of  depositors, 
must  be  fixed  and  defined,  either  in  the  articles  of  incorporation  or  in  the 
ty-laws. 

Stats.  18G2,  203,  sec.  17.  of  a  savings  bank,  recognized  as  valiilly  incor- 

Validity  of  reinoorporation  under  the  code,     pirated:  Peoples.  Perrin,  56  Cal.  345. 

573.  No  dividend  except  from  su7ylas  profits. 

Seo.  573.  The  directors  of  savings  and  loan  corporations  may,  at  such  times 
Bpiid  in  such  manner  as  the  by-laws  prescribe,  declare  and  pay  dividends  of  so 

144 


Title  X.]  SAVINGS  AND  LOAN  CORPORATIONS.  §§  5^4-578 

much  of  the  profits  of  the  corporation,  and  of  the  interest  arising  from  the 
capital  stock  and  deposits,  as  may  be  appropriated  for  that  purpose  under  the 
by-laws  or  under  their  agreements  with  depositors.  The  directors  must  not 
contract  any  debt  or  liability  against  the  corporation  for  any  purpose  whatever, 
€xcept  for  deposits.  The  capital  stock  and  the  assets  of  the  corporation  are  a 
security  to  depositors  and  stockholders,  depositors  having  the  priority  of  secu- 
rity over  the  stockholders,  but  the  by-laws  may  provide  that  the  same  security 
shall  extend  to  deposits  made  by  stockholders. 
Stats.  1870,  130,  sec.  1;  18G2,  199,  sees.  10,  22. 

574.  Property  which  mmj  he  owned,  and  how  dii^osed  of. 

Sec.  574.  Savings  and  loan  corporations  may  purchase,  hold,  and  convey  real 
and  personal  property,  as  follows: 

1.  The  lot  and  building  in  which  the  business  of  the  corporation  is  carried 
on,  the  cost  of  which  must  not  exceed  one  hundred  thousand  dollars;  except, 
on  a  vote  of  two  thirds  of  the  stockholders,  tbe  corporation  may  increase  the 
sum  to  an  amount  not  exceeding  two  hundred  and  fift}-  thousand  dollars; 

2.  Such  as  may  have  been  mortgaged,  pledged,  or  conveyed  to  it  in  trust,  focr 
its  benefit  in  good  faith,  for  money  loaned  in  pursuance  of  the  regular  busiueas; 
of  the  corporation; 

3.  Such  as  may  have  been  purchased  at  sales  under  pledges,  mortgages,  or- 
deeds  of  trust  made  for  its  benefit,  for  money  so  loaned,  and  such  as  may  bo 
conveyed  to  it  by  borrowers  in  satisfaction  and  dischai'ge  of  loans  made 
thereon ; 

4.  No  such  corporation  must  purchase,  hold,  or  convey  real  estate  in  any 
other  case  or  for  any  other  purpose;  and  all  real  estate  described  in  subdivision 
three  of  this  section  must  be  sold  by  the  corporation  within  five  years  after  the 
title  thereto  is  vested  in  it  by  purchase  or  otherwise; 

5.  No  corporation  must  purchase,  own,  or  sell  personal  property,  except  such 
as  may  be  requisite  for  its  immediate  accommodation  for  the  convenient  trans- 
action of  its  business,  mortgages  on  real  estate,  bonds,  securities,  or  evidences 
of  indebtedness,  public  or  private,  gold  and  silver  bullion,  and  United  States 
mint  certificates  of  ascertained  value,  and  evidences  of  debt  issued  by  the 
United  States; 

G.  No  corporation  must  purchase,  hold,  or  convey  bonds,  securities,  or  evi- 
dences of  indebtedness,  public  or  private,  except  bonds  of  the  United  States,  of 
the  state  of  California,  and  of  the  counties,  cities,  or  cities  and  counties,  or 
towns  of  the  state  of  California,  unless  such  corporation  has  a  capital  stock  or 
reserved  fund  paid  in  of  not  less  than  throe  hundred  thousand  dollars.  [Ameud- 
menl,  approved  March  1%,  1874;  AmendinenlslSl'i-A,  273;  took  effect  from  pasiiaf}e.\ 

575.  Married  women  and  minors  may  oion  atock  in  their  own  right. 

Sec.  575.     Married  Avomen  and  min(/rs  may,  in  their  own  rights-make- and 
draw  deposits  and  draw  dividends,  and  give  valid  receipts  therefor. 
Stata.  18G2,  199,  sees.  14,  15;  18G4,  138,  sec.  4;  IS70,  1.32,  sees.  2,  3. 

576.  Jlfay  isme  transferable  certificates  of  deposit. 

Sec.  57G.  Savings  and  loan  corporations  may  issue  general  certificates  of 
deposit,  which  are  transferable,  as  in  other  cases,  by  indorsement  and  delivery; 
may  issue,  when  requested  by  the  depositor,  special  certificates,  acknowledging- 
the  deposit  by  the  person  therein  named  of  a  specified  sum  of  money,  and 
expressly  providing  on  the  face  of  such  certificate  that  the  sum  so  deposited  and 
therein  named  may  be  transferred  only  on  the  books  of  the  corporation;  pay- 
Crv.  Code— 10  145 


§§577-579  COEPOKATICNS.  [Div.  I,  Part  IV, 

meat  thereafter  made  by  the  corporation  to  the  depositor  named  in  such  certifi- 
cate, or  to  his  assignee  named  upon  the  books  of  the  corporation,  or,  in  case  of 
death,  to  the  legal  representative  of  such  person,  of  the  sum  for  which  such 
special  certificate  was  issued,  discharges  the  corporation  from  all  further  liability 
on  account  of  the  money  so  paid. 
Stat3.  1807-8,  459,  sec.  1. 

577.    To  provide  reserve  fund  for  the  payment  of  losses. 

Seo.  577.  Savings  and  loan  corporations  may  pi-escribe  by  their  by-laws  the 
time  and  conditions  on  which  repayment  is  to  be  made  to  depositors;  but  when- 
ever there  is  any  call  by  depositors  for  repayment  of  a  greater  amount  than  the 
coi-poration  may  have  disposable  for  that  parposo,  the  directors  or  officers  thereof 
must  not  make  any  new  loans  or  investments  of  the  funds  of  the  depositors,  or 
of  the  earnings  thereof,  until  such  excess  of  call  has  ceased.  The  dii'ectors  of 
any  such  corporation  having  no  capital  stock  must  retain,  on  each  dividend  day, 
at  least  five  per  cent  of  the  net  profits  of  the  corporation,  to  constitute  a  reserve 
fund,  which  must  be  invested  in  the  same  manner  as  other  funds  of  the  corpora- 
tion, and  must  be  used  towards  paying  any  losses  which  the  corporation  may 
sustain  in  pursuing  its  lavvfvil  business.  The  corporation  may  provide  by  its 
by-laws  for  the  disjiosal  of  any  excess  in  tlie  reserve  fund  over  one  hundred 
thousand  dollars,  and  the  final  disposal,  upon  the  dissolution  of  the  corporation, 
iof  the  reserve  fund,  or  of  the  remainder  thereof,  after  payment  of  losses. 

Stats.  1SG2,  201,  sec.  11;  1870.  523,  822. 

"573.    Prohibition  on  director  and  officer,  and  what  vacates  office. 

Sec.  578.  No  director  or  officer  of  any  savings  and  loan  corjDoration  must, 
directly  or  indirectly,  for  himself  or  as  the  partner  or  agent  of  others,  borrow 
any  of  the  deposits  or  other  funds  of  such  corporation,  nor  must  he  become  an 
indorser  or  suretj''  for  loans  to  others,  nor  in  any  manner  be  an  obligor  for  moneys 
borrowed  of  or  loaned  hj  such  corporation.  The  office  of  any  director  or  officer 
who  acts  in  contravention  of  the  provisions  of  this  section  immediately  there- 
upon becomes  vacant. 

'573.   Difinition  of  phrase  '^create  debts." 

Si.c.  579.  Receiving  dejjosits,  issuing  certificates  of  deposit,  checks,  and  bills 
of  exchange,  and  the  like,  in  the  transaction  of  the  business  of  savings  and  loan 
corporations,  must  not  be  construed  to  be  the  creation  of  debts  within  the  mean- 
ing of  the  phrase  "  create  debts,"  in  section  three  hundred  and  nine. 

An  Act  to  authorize  the  hiisbrind  or  wife  or  next  of  kin  of  a  deceased  person  to  colh-rt  and  receiv6 
of  any  savings  bank  any  deposit  in  such  bank,  when  the  same  does  not  exceed  the  sum  of  three- 
hundred  dollars. 

(Approved  February  18,  137-1;  1373-4,  132.] 
Collect  deposit. 

Section  1.     The  surviving  husband  or  wife  of  any  deceased  person,  or  if  no  Imsband  or  wife 

be  living,  then  tlie  next  of  kin  of  sach  <lL'cedjnt,  ni.i,y,  without  procuring  letters  of  ad:iiinistra- 

.  tion,  collect  of  any  savings  bank  any  sum  wliich  said  deceased  may  have  left  on  a  deposit  in 

-  each  bank  at  the  time  of  his  or  her  death;  provided,  said  deposit  shall  not  exceed  the  sum  of 

three  hundred  dollars. 

AJftditvit. 

Sec.  2.  Any  savings  bank,  upon  receiving  an  affidavit  stating  that  said  depositor  is  dead, 
and  that  affiant  is  the  surviving  husljand  or  wife,  as  t!io  case  may  be,  or  stati.ig  th  it  decedent 
left  no  husband  or  wife,  and  that  ■ilHant  is  the  next  of  kin  of  said  decedent  and  entitled  to  dis- 
tribution, and  that  the  whole  amount  that  decedent  left  on  deposit  in  any  and  all  .savin  ,s  banks 
or  bank  of  deposit  in  this  state  does  not  excjed  t'.ie  sura  of  tliree  hundred  dollars,  may  pay  to 
Baid  affiant  any  deposit  of  said  decedent,  if  the  same  does  not  exceed  the  su\n  of  three  hundred 
dollars,  and  the  receipt  of  such  affiant  shall  be  a  sufficieut  acq^uittance  therefor. 
Guilty. 

Sec.  .3.     Any  person  who  shall  make  a  false  affidavit  in  regard  to  the  matters  specified  in  thi« 
act  shall  be  deemed  guilty  of  perjury. 
S£0.  4.    This  act  shall  take  elTeut  from  and  after  its  passage. 

146 


Title  XI.]  MINING  CORPORATIONS.  §§  584-587 

TITLE  XI. 
MINING  CORPOEATIONS, 

584.  Bemoval  of  place  of  business. 

Ropcaleil  by  act  of  April  3,  1S7G;  Amend-  Con.  Min.  Co.,  7  Saw.  30;  the  same  case  in 

meiits  LS7r)-G,  To;  took  ellcct  iminciliately.  tlio  circuit  court  on  appeal,  S  Iil.  3GG;  Ilurriaon 

The   rcpc  alcil   section  provided  for   the  re-  v.   Pn'jp,   10  Pac.  C.  L.  J.  G37,  where  miiiiiig 

moval  of  the  principal  office  of  a  mining  cor-  corpjrationa are diatin.;uisiied  from  other  corpo- 

poration;  iuit  tliat  section  was  su[icrseded  by  rations,  especially  in  respect  to  the  power  of  the 

the  general  provision  made  applicable  to  all  corporation  tolevy  assessments,  as  distinguished 

corporations  oy  the  ameudnieut  of  187.>-G   to  from   collecting   unpaid    installments.     Judge 

section  ?>1\.  Sawyer,  in  8  Saw.  3G3,  .'^07,  gives  an  intcrest- 

r>I-Diu2   corporation   different   from  other  ing  account  of  the  mode  of  forming  a  mining 

corporations:  See  the  case  of  In  re  South  Mt.  corporation. 

583.    Directors  to  file  cerlificales  of  proceedings  in  offices  of  county  clerks  and 

secretary  of  state. 

Sec.  585.  When  the  pitblication  provided  for  in  tlie  preceding  section  baa 
been  completed,  the  directors  of  the  corporation  must  file  in  the  oflSces  of  the 
clerks  of  the  counties  from  and  to  wliich  such  cLange  has  been  made,  and  in 
the  office  of  the  secretary  of  state,  certified  copies  of  the  written  consent  of  the 
stockholders  to  such  change,  and  of  the  notice  of  such  change,  and  proof  of 
publication;  also  a  certificate  that  the  proposed  removal  has  taken  place;  and 
thereafter  the  principal  place  of  business  of  the  corporation  is  at  the  place  to 
which  it  is  removed. 

Suts.  1SG3-4,  7G,  sec.  1. 

585.  Transfer  agencies. 

Sec.  58G.  Any  corporation  organized  in  this  state  for  the  purpose  of  mining, 
or  cai'rying  on  mining  operations  in  or  without  this  state,  may  establish  and 
maintain  agencies  in  other  states  of  the  United  States,  for  the  transfer  and  issu- 
ing of  their  stock;  and  a  transfer  or  issue  of  the  same  at  any  such  transfer 
agency,  in  accordance  with  tbe  provisions  of  its  by-laws,  is  valid  and  binding 
as  fully  and  effectuall}'  for  all  purposes  as  if  niade  upon  the  books  of  such  cor- 
poration at  its  principal  office  within  this  state.  The  agencies  must  be  governed 
by  the  b3'-laws  and  tbe  directors  of  the  corporation. 

Stats.  1SG3-4,  76,  sec.  2. 

587.    Stock  vssued  at  transfer  agencies. 

Sue.  587.  All  stock  of  any  such  corporation,  issued  at  a  transfer  agency, 
must  be  signed  by  the  president  and  secretary  of  the  coi'poration,  and  counter- 
signed at  the  time  of  its  issue  by  the  agent  having  char  jg  of  the  transfer  agency. 
No  stock  must  be  issued  at  a  trausi'er  agency  uulijss  Ibe  cerLificato  of  stock,  in 
lieu  of  which  the  same  is  issued,  is  at  the  time  surrendered  for  cancellatiou. 

Stats.  1SG3-4,  42!),  sees.  1,  .3. 

An  Act  supplemental  to  an  art  entitled  "An  net  ronrfrniiifj  rorporatiomf,"  passed  th^twenty-sfcond 
of  April,  one  thonKaml  I'iijfil  kundrel  andjt/ty. 
_  ,  [Approved  JUrcU  21,  1872;  1871-2,  4W.J 

Petition  for  removal  of  ofircrK. 

Skction  I.  On  |)etiti>.n  of  the  majority  of  tiie  sliarcholders  of  any  corporation  formed  for  the 
purposi:  of  mining  to  tin;  county  judge  of  tlic  county  where  said  corporation    has  its  principal 

Elaca  of  liusiness,  veriliod  !)y  tho  si  ^ners,  to  the  elfect  t'i:it  they  are  s^-verally  tiic  lioldcrs  on  tli© 
ooks  of  the  company  of  the  nundicr  of  sliarcsset  opposite  tlijir  signatures  to  the  foregoing  pcti- 
ti<m,  the  county  judgi;  sha  1  i.ssuc  \\\i  notice  to  the  .sharclioldcrs  of  said  company  that  a  meeting 
of  the  shareholders  will  lie  lield,  st.itlng  the  time,  not  less  tlian  live  nor  more  th.ui  ten  d.iys  after 
the  first  publication  of  sucli  notice,  an  I  the  place  of  me  ;ting  within  said  county,  an.1  the  object 
<o  1)0  to  take  into  consideration  the  re:nural  of  oliirer-i  of  said  company;  wliich  notice,  signed  by 
the  ^aill  county  judge,  sliall  bo  p;il)lishod  daily  in  one  or  more  daily  uewsixipcra  published  ia 
said  county  for  at  least  live  days  before  the  time  for  the  meeting. 

147 


§  587  CORPORATIONS.  [Div.  I,  Tart  IV. 

Orr/anization  of  meeting. 

Sec.  2.  At  the  time  and  place  appointed  by  said  notico,  those  claiming  to  be  shareholders 
who  shall  assemble  shall  proceed  to  on:^anizo  by  the  app,)i;»tuient  of  a  chairman  and  secretary, 
and  thereupon  those  claiming  1o  bo  shareholders  shall  present  proof  thereof,  and  only  tlioso 
Bhowing  a  right  to  vote  sliall  take  part  in  the  further  proceedings.  If  lb  a.ipears  that  at  the 
time  appointed,  or  witliin  one  hour  thereafter,  shareholders  of  less  t!ian  one  half  the  shares  are 
present,  no  further  proceedings  shall  be  had;  but  the  meeting  shall  bij  ipso  facto  dissolvud;  prO' 
vided,  hoiceccr,  that  by  .a  vote  of  the  holders  of  the  majority  «)f  the  capital  stock  of  the  corpora- 
tions aforesaid  the  board  of  trustees  may  be  required  to  furnisli  to  tlie  meeting  a  written  detailed 
statement  and  account  of  the  affairs,  busin3ss,  an  I  property  of  the  eorp  jrntion;  but  if  the  Iiold- 
crs  of  a  majority  of  the  shares  are  present,  they  shall  proceed  to  vote,  the  secretary  calling  the 
roll,  and  the  members  voting  yea  or  no,  as  the  case  may  be.  The  secretary  sliall  enter  tlie  same 
ui)on  las  list,  and  wiien  he  has  added  np  the  list  and  stated  tlio  result,  he  sliall  sign  the  same 
and  hand  it  to  the  chairman,  who  shall  sign  the  sa,me  and  d  ;clare  the  result.  [Amendment, 
approved  A  pi- il  1,  1870;  A  mend  menls  ISlH-ij,  730;  too/:  effect  from  j^asaaje.] 

Ballot  to  HUjtphj  vacancies. 

Skc.  3.  If  tiie  result  of  the  vote  is  that  the  holders  of  a  majority  of  all  the  shares  of  the  com- 
pany are  in  favor  of  the  leinoval  of  one  or  more  of  the  oiDcers  of  the  company,  the  meeting  shall 
then  proceed  to  ))allot  for  oflicers  to  supply  tlie  vacancies  thus  created.  Tellers  sliail  be 
appointed  by  the  chairman,  who  shall  collect  the  ballots  and  deliver  them  to  the  secretary,  who 
shall  count  the  same  in  open  session,  and  liaving  stated  the  result  of  the  count  in  writing,  shall 
si^^n  the  same  and  hand  it  to  the  chairman,  -who  shall  announce  the  result  to  the  meeting. 

Ceri'ijicdle  of  election. 

Sec.  4,  A  report  of  the  proceedings  of  the  meeting  shall  be  made  in  writing,  signed  by  the 
chairman  and  secretarj',  and  verified  by  them,  and  delivered  to  the  county  judge,  w!io  shall 
thereupon  issue  to  each  person  chosen  a  certificate  of  his  election,  and  shall  r.lso  issue  an  order 
requiring  that  all  books,  papers,  and  all  property  and  effects  be  immediately  delivered  to  the  offi- 
ccrs  elect;  and  the  petition  and  report,  indorsed  with  the  date  and  fact  of  the  issuance  of  such 
certificate  and  order,  shall  bo  delivered  to  the  county  clerk,  to  be  l)y  him  filed  in  his  ollice.  and 
thereafter  the  persons  thus  elected  oflicers  shall  be  the  duly  cL'ctctl  officers,  and  hold  oiUce  until 
the  next  regular  annual  meeting,  unless  removed  under  the  provisions  thereof. 

Fees  of  count !i  clerk. 

Si;c.  5.  For  all  services  in  these  proceedings  the  county  clerk  shall  receive  ten-dollars^on  tbd 
issuance  of  the  notice  and  ten  dollars  on  the  issuance  of  the  certificates. 

Sue.  6.     All  acts  or  pirts  of  acts  confiicting  with  this  act  are  hereby  repealed. 

Sec.  7.     This  act  shall  take  effect  i.nmcdiately. 

An  Act  for  the  heUer  protection  of  the  Ktocl-holdrrs  in  corpnrnti'mn  formed  under  the.  Imra  of  the 
stale  of  California  for  the  jmrpoxe  of  carri/liirf  on  and  conducting  the  business  of  mining. 
[Approved  March  aO,  1874;  1873-4,  800.] 
Boohs  of  mining  corporations, 

Skction  1.  It  shall  bj  the  duty  of  the  secretary  of  every  corporation,  formed  under  the  lawn 
of  this  state  for  the  pur[)Ose  of  mining,  to  keep  a  complete  set  of  bonks,  showing  all  receipts  and 
expenditures  of  such  corporation,  the  sonrcos  of  such  receipts,  r>nd  tlie  object  of  sueli  expendi- 
tures, and  also  all  transfers  of  stock.  All  books  and  papers  shall  at  all  times,  during  l)U3iues3 
hours,  be  open  to  the  inspection  of  any  bona  lide  stockholder;  and  if  any  stockholder  shall  at  any 
time  so  request,  it  shall  be  the  duty  of  the  secretary  to  attend  at  the  oflice  of  said  company  at 
least  one  hour  in  the  day  out  of  i-egular  business  lionrs,  and  exhibit  sueli  books  and  papers  of  the 
company  as  such  stock'.iolder  may  desire,  who  shall  bo  entitled  to  b3  accompanied  by  ancx;>ert; 
and  he  shall  also  be  entitled  to  make  copies  or  extracts  from  any  such  books  or  papers.  It  shall 
be  the  duty  of  tlic  directors,  on  tlu  first  Mo.iday  of  each  and  every  month,  to  cause  to  bo  made 
an  itemized  account  or  balance-sheet  for  the  previous  month,  embracing  a  full  and  complete 
Btatemcnt  of  all  disbursements  and  receipts,  showing  from  what  sources  such  receipts  were 
derivcil,  and  for  what  and  to  whom  such  disbursements  or  payments  were  made,  and 
for  what  object  or  purpose  the  same  were  made;  also  all  indebtedness  or  liabilities  incurred 
or  existing  at  the  ti  iie,  and  for  what  the  same  were  incurred,  and  tlie  balance  of  money, 
if  any,  on  hand.  Such  account  or  balance-sheet  sh."ll  be  verified  under  oath  by  the  president 
and  secretary,  and  posted  in  some  conspicuous  place  in  the  office  of  the  company.  It  shall  be 
the  duty  of  the  superintendent,  on  tlie  fir>t  Monday  of  each  month,  to  file  with  the  secretary  an 
itemized  account,  verified  under  oath,  showing  all  receipts  and  disbursements  made  liy  him  for 
the  previous  month,  ami  for  what  said  disbursements  were  made.  It  sliall  also  be  the  duty  of 
the  superintendent  to  file  with  tlie  secretary  a  weekly  statement,  under  oath,  showing  the  num- 
ber of  men  empL)ye  1  under  him  and  for  what  purpose,  and  the  rate  of  wages  paid  to  each  one. 
He  shall  attach  to  such  account  u  full  and  complete  report,  under  oath,  of  tlie  work  done  in  said 
miu",  the  amount  of  ore  extracted,  from  what  part  of  the  mine  taken,  the  amount  sent  to  mill 
for  reduction,  its  assay  value,  the  amount  of  bullion  received,  the  amount  of  bullion  shipped  to  the 
ofliee  of  the  company  or  cl-icwhere,  and  the  amount,  if  any,  retained  by  the  superintendent.  It 
shall  also  be  his  duty  to  forward  to  the  office  of  the  company  a  full  report,  under  oath,  of  all 
discoveries  of  ores  or  miiierabbearing  quartz  made  in  said  mine,  whether  by  boring,  drifting, 
sinking,  or  otherwise,  to  rcthcr  with  the  assay  value  thereof.  All  accounts,  reports,  and  corre- 
spondence from  the  superintendent  shall  be  kept  in  some  conspicuous  place  in  the  office  of  said 
coni[)any,  and  be  open  to  the  inspection  of  all  stockholders.  [Amendment,  approved  April  2.3, 
1880;  Amendmenln  1830,  134  (Ban.  ed.  400);  took  effect  from  passage;  repealed  conjlictivg  acta,} 

148 


Title  XII.]      RELiaiOUS,  SOCIAL,  AND  SEXEVOLENT  ASSOCIATIONS.  §  593 

Exannnation  of  fjromi'fs. 

Sec.  '2.  Any  boua  fide  stockholder  of  a  coiT;)oration  formed  under  the  la\vs  of  this  state  for 
the  purpose  of  mining  bhall  bo  entitled  to  visit,  acuomjanied  by  his  expeit,  and  examine  tho 
mine  o:-  mines  owned  by  such  corpoiatiim,  and  every  part  thereof,  at  any  time  he  may  Sf-c  fit  to 
make  sucli  visit  and  examination;  an<l  wIru  such  stockiiolder  shall  make  application  to  tlio  presi- 
tlen!;  of  sucii  corporation,  he  shall  immediately  cause  tlie  secretary  thereof  to  issue  and  deliver  to 
Buch  upi)licant  an  order,  under  the  seal  of  the  corporation,  directed  to  the  superintendent,  com- 
mandirg  him  to  show  and  exhibit  such  parts  of  said  mine  or  mines  as  the  party  named  in  said 
order  may  <lesire  to  visit  and  examine.  It  shall  be  the  duty  of  the  superintendent,  on  receivin;^ 
Buch  order,  to  furnisli  such  stockholder  every  facility  for  making  a  full  and  complete  inspectioa 
of  said  mine  or  mines,  and  of  the  workings  therein;  it  shall  be  his  <Iuty  also  to  acjompcny  said 
etoclcholder,  cither  in  person  or  to  furnish  some  person  familiar  with  said  mine  or  nuncs 
to  aetomiiany  liim  in  iiis  visit  to  and  through  sucfi  mine  or  mines,  and  every  i>art  thereof.  In 
case  of  the  failure  or  refusal  of  the  superintendent  to  obey  such  order,  sucIi  stockholder  sliall  be 
entitled  to  recover  in  any  court  of  com[)eteut  jurisdiction,  against  said  corporation,  the  sum  of 
one  thousand  dollars  and  traveling  cxfjenses  to  and  from  said  mine  as  liquidated  damages, 
together  wIlIi  costs  of  suit.  In  case  of  such  refusal,  it  sliall  be  the  duty  of  the  directors  of  sucli 
corporation  forthwith  tu  remove  the  oUiccr  so  refusing,  and  thereafter  he  shall  not  be  employed 
directly  or  indirectly  by  such  corporation,  and  no  salary  shall  bo  paid  to  him.  [AmeH<lmf)it, 
ajnrovfd  April  'I'i,  ItiSO;  A7ncudment.'i  1880,  135  (Lian.  ed.  400);  took  cffict  from  passage;  repealed 
CO  Jllcliiifj  acts.] 
Penulty. 

Slo.  3.  In  case  of  the  refusal  or  neglect  of  the  president  to  cause  to  be  issued  by  the  secre- 
tary the  oi-dcr  in  the  second  section  of  this  act  mentioned,  such  stockholder  sliall  be  entitled  to 
recover  ag  dust  said  president  the  sum  of  one  thousand  dollars  and  costs,  as  j)rovidcd  in  the  last 
BPction.  In  case  of  the  failure  of  the  directors  to  l.ave  the  reports  and  accounts  current  ma^le 
and  posted  as  in  the  first  section  of  this  act  provided,  they  shall  be  liable,  cither  severally  or 
joint!}',  to  an  action  l)y  any  stocklio'.der,  in  any  court  of  competent  jurisdiction,  complaining 
thereof,  and  on  pniof  of  sucli  i-efusal  or  failure,  such  complainin;^  stockholder  shall  recover  jiulg- 
ment  for  one  thousand  dollars  liquidated  damages,  with  costs  of  suit.  [Ameudmnif,  a/>prov''d  Aj/ril 
23,  ISGO;  Amendments  ISSO,  13o  (Dau.  ed,  400);  took  eil'eet  froin  panscvje;  re/iea'ed  cotijlictlmj  acU.^ 

Sec.  4.     All  acts  in  conflict  v.'iih  the  provisions  of  this  act  are  hereby  repealed. 

TIa.'.'s  aot  ia  cousttutional:  Iletddl  v.  Ep-  by  the  court  as  to  the  form  of  complaint  under 
$teiii,  (J3  Cal.  184,  wherein  siiggestions  are  made     this  statute. 

An  Act  for  the  further  protertion  of  stockho'ders  in  miiiiufj  companies, 
[Approved  April  2J,  1880;  1380.  Vol  (Ban.  ed.  3'J8).] 
Directorn  vol  to  ftell,  etc.,  unless  ticn  third-*  of  eapitnt  .ttock  consent. 

Sr.CTioN  1.  It  shall  not  be  lawful  f.ir  tlie  i> rectors  of  anj' mhiing  corporation  to  sell,  lease, 
mortgage,  oi-  otherwise  dis[iose  of  the  whole  or  any  part  of  the  mining  ground  owned  or  held  by 
Buch  corjioration,  nor  to  pnrc'.iasc  or  obtain,  in  any  way,  any  additional  mining  ground,  unless 
BUch  act  bo  ratx'fied  by  the  lioldersof  at  least  two  thinls  of  the  canital  stock  of  such  corjxiration. 
Such  ratilication  may  be  made  cither  in  v^'riting.  signed  and  acknowledged  by  sucli  stockholders, 
or  by  reso'.ut.ou,  duly  passed  at  a  stockholders'  meeting  called  for  that  purpose. 
Stock  to  III'  ill  7t(ime  of  real  owner  or  trustee. 

Sec.  '2.  All  stock  in  each  and  every  mining  corporation  in  this  state  sliall  stand  in  the  books 
of  said  comjiany,  in  all  cases,  in  tho  names  of  tho  real  owners  of  sucli  stock,  or  in  the  name  of 
the  trustees  of  such  real  owners;  Ijut  in  every  case  where  such  stick  ohall  stand  in  tho  name  of 
a  trustee,  the  party  for  whom  iio  indds  suc'.i  stock  in  trust  shall  be  designated  upon  said  books, 
and  also  in  the  body  of  the  certificate  of  such  stock. 
Boots,  vhen  to  close — Stock,  hoiu  vott'd. 

Si;c.  3.  It  shall  not  be  lawful  for  any  such  corporation,  or  the  secretary  thereof,  to  close  the 
books  of  saiil  corporation  more  than  two  days  prior  to  the  day  of  any  election.  At  such  cleetioQ 
the  stock  of  said  corporation  shall  be  voted  by  the  bona  fide  owners  thereof,  as  shown  by  tho 
books  of  sai  1  cor[)oration,  unless  tlie  certificate  of  stock,  da'y  indorsed,  lie  produced  at  such 
election,  in  which  case  said  certificates  shaU  be  deemed  the  highest  evidence  of  ownership,  and 
the  ho.iler  thereof  shall  lie  entitled  to  vote  t!ie  same. 

Sec.  4.     All  acts  ami  parts  of  acts  in  conflict  with  this  act  are  hereby  repealed. 

Sec.  u.     This  act  shall  take  cfl"ect  from  and  after  its  passage. 


TITLE   XII. 

EELIGIOUS,  SOCIAL,  AND  BENEVOLENT  ASSOCL\.TIONS. 

593.    Corporal  ion. "<  for  purposen  oilier  Ihan  pr'>fil,  lioxo  formed. 

Sec.  i5'J3.  Any  numbor  of  persons  associated  to-^etlier  for  any  purpose  where 
pecuniary  profit  is  not  their  object,  and  for  wliich  individuals  may  lawfully 
associate  themselves,  may,  in  accordance  wi.h  the  rules,  regulations,  or  disci- 
pline of  Kuch  association,  elect  director.s,  tho  nuuiber  thereof  to  be  not  less 

14'J 


§§  594,  595  com  ORATIONS.  [Div.  I,  Part  IV, 

than  three  nor  more  than  eleven,  and  may  incorporate  themselves  as  provided 
in  this  part.     [Aninulmenf,  approved  April  G,  1880;  Amendments  1880,  G  {Ban. 
ed.  124);  look  effect  immedlalcbj.\ 
Beuevolent  associations  not  insurance  companiss:  Sec.  451,  ante. 

An  Act  rdatiiif/  to  mutual  beneficial  and  relief  associations, 
(Approved  March  23,  1S74;  1873-4,  715.] 
Mutual  heneficlal  and  relief  asHOclaflons. 

.SixTioN  1.     Associations  iTia,y  be  forineil  for  the  purpose  of  paying  to  the  nominee  of  any 
member  a  sum  upon  the  death  of  said  member,  not  exceeding  three  dollars  for  eacli  member  of 
such  association.     No  such  association  shall  exceed  in  number  one  thousand  persons. 
Uoio  formed. 

8ec.  2.  .Such  association  shall  be  formed  by  filing  a  verified  certificate  in  the  office  of  the 
clerk  of  the  county  in  which  the  principal  place  of  business  shall  be  situated,  and  filing  a  like 
certificate  in  tlie  ollice  of  t!ie  secretary  of  the  state;  such  certificate  shall  state  tlie  general 
objects  of  the  ass<)ciati(m,  its  principal  place  of  business,  and  the  names  of  the  officers  selected 
to  iiold  ollice  for  the  first  three  months,  and  shall  be  signed  by  said  officers,  and  verified  by  at 
least  three  of  them. 
Poicerfi. 

Si;c.  3.  Said  associations,  upon  the  death  of  each  member,  may  levy  an  assessment  upon 
ench  member  living  at  tlie  time  of  the  deatii,  not  exceeding  three  dollars  for  each  member,  and 
collect  the  same,  and  pay  t'le  same  to  the  nominee  of  such  deceased;  and  may  also  pi-oviJe  tlie 
payment,  of  juch  annual  payments  of  members  as  may  be  deemed  best.  Such  annual  assessment 
u;)0u  any  one  member  not  to  be  raised  above  the  annual  assessment  established  at  the  time  such 
member  joined  such  associatiou. 

Same. 

Sf.c.  4.  Such  association,  by  its  name,  may  sue  and  be  sued,  and  may  loan  such  funds  as  it 
may  iiave  on  iiand,  and  may  own  sufficient  real  estate  for  its  business  purposes,  and  such  otlier 
real  estate  as  it  ma}'  be  necessary  to  purchase  on  foreclosure  of  its  mortgages;  provided,  such 
real  estate  so  obtained  tlirongh  foreclosure  shall  be  sold  and  conveyed  within  five  years  from 
the  d.iy  title  i^  obtained,  unless  the  superior  court  of  the  proper  county  shall,  upon  petition  and 
good  cause  shown,  extend  the  time.  [Amendment,  approved  April  G,  18S0;  Amendments  1880, 
25  (Ban.  ed.  128);  took  effect  im?nediateli/.] 
By-laio.-i. 

Sec.  .5.  Such  association  may  make  such  bydaws,  not  inconsistent  with  the  laws  of  this  state, 
as  may  be  necessary  for  its  government,  and  tor  the  transaction  of  its  business,  and  shall  not  ba 
subject  to  the  provisions  of  the  general  insurance  laws. 

Old  asyocialions. 

Sec.  G.  All  associations  heretofore  formed  for  the  objects  contemplated  by  this  act,  and  now 
in  operation,  niay  avail  themselves  of  its  ]irovisions  by  iiling  the  certificate  provided  for  iu  sec- 
tion one;  prnrided,  that  such  society  shall  not  have  greater  membership  than  three  thousand. 

Sec.  7.     This  act  shall  take  elTect  immediately. 

594.  Additional  facfii,  articles  of  incorporation  to  he  set  out. 

Sec.  594.  In  addition  to  the  requirements  of  section  two  hundred  and  ninety, 
tlie  articles  of  incorporation  of  anj'  association  mentioned  in  the  preceding  sec- 
tion must  set  forth  the  holding  of  the  election  for  directors,  the  time  and  place 
where  the  .same  was  held,  that  a  majority  of  the  members  of  sucli  association 
■were  present  and  voted  at  such  election,  and  the  result  thereof;  which  facts 
must  be  verified  by  the  officers  conducting'  the  election. 

Stats.  1850,  ^H,  sec.  17G;  18G2,  125.  cate  must  be  stated:  Ferraria  v.  Vasconrellos, 

S';:itut3    auLliorlri-ns    tli3    forma'Jon    of    23  111.  458.     If  there  is  no  statement  as  tj  a 

religious  sooi3ti23. should  be  substantially  fol-     majority  of    the  members    voting,  tlie  associ- 

l.jw^d  and  its  express  requirements  complied     atioa  is  not  a  corporation:  People  v.  Selfridge, 

with,  and  all  the  facts  required  in  the  certifi-     52  Cal.  333. 

595.  Corporations  to  hold  property — Amount  of  real  estate  limited. 

Sec  595.  All  such  corporations  ma}'  hold  all  the  property  of  the  association 
owned  prior  to  incorporation  or  acquired  thereafter  in  any  manner,  and  trans- 
act all  business  relative  thereto;  but  no  such  corporation  must  own  or  hold 
more  real  estate  than  may  be  necessary  for  the  business  and  objects  of  the  asso- 
ciation, and  providing  burial-grounds  for  its  deceased  members,  not  to  exceed 
six  whole  lots  in  any  city  or  town,  not  more  than  twenty  acres  in  the  countiy, 
the  annual  increase,  income,  or  profit  whereof  must  not  exceed  fifty  thousand 
dollars;    provided,  that  any  such  corporation  now  or  hereafter  having,  and 

150 


594.      Additional    Facts    Articles    of    Incorporation    to 
Out.     In  addition  to  the  requirements  of  section  two  hunl 
and   ninety,    the   articles   of  incorporation   of  any  associat 
mentioned  in  the  preceding-  section  must  set  forth  the   !h 
ing  of  the  election  for  directors   [in  accordance  with  a  r.- 
lution   adopted   at   the  last  prior  regular  meeting,]    the   ti 
and  place  where  the  same  was  held,   [and  that  notice  of  s 
meeting  was  given  to  the  members  of  said  association];   ; 
a  majority  of  the  members   of  sucli  association    [wlio]    v 
[present    voted]    at    such    election,    and    the    result    ther 
v»?hich   facts  must  be  verified  by  the  officers   conducting 
election.      (In   effect  60  days  from  and   after  March  19,   i: 
Stats.  1909,  Chap.  306.)  Civ.  Code', 


Code,   1i| 

r-4 


Title  XII.]        RELIGIOUS,  SOCIAL,  AXD  BENEVOLENT  ASSOCIATIONS.     §§  50G-5D9 

having-  had  continuously  foi*  the  next  preceding  three  years,  the  caro,  custod}', 
control,  and  maintenance  each  year,  upon  an  annual  average  of  not  less  than 
one  hundred  orphans,  half-orphans,  and  indigent  minor  children  at  any  one 
orphan  asylum,  shall  be  entitled  and  allowed  to  own  and  possess  any  number 
of  acres,  not  exceeding  one  hundred  and  sixty  acres  of  land  in  tho  country,  out- 
side of  any  incorjjorated  city  or  town,  and  the  annual  income  or  profit  of  which 
does  not  exceed  fifty  thousand  dollars;  and  provided  further,  such  orphan  asy-' 
lum  shall  be  situated  on  such  lands;  and  provided  further,  that  the  limitations 
herein  provided  for  shall  not  apply  to  corporations  formed,  or  to  be  formed, 
under  section  six  hundred  and  two  of  the  Civil  Code,  when  the  land  is  held  or 
used  for  churches,  hospitals,  schools,  colleges,  oi'phan  asylums,  parsonages,  or' 
cemeterj'  purposes.  [Amendment,  approved  Febraanj  2G,  1881;  SUUalcs  and 
Amendments  1881,  9;  took  effect  immediate! ij.] 

5S6.    IIow  mueJi  land  friendly ,  etc.,  societies  may  hold. 

Sec.  59G.  In  addition  to  that  provided  for  in  the  preceding  section,  friendly 
societies  and  j^ioneer  associations  may  liold  such  real  estate  as  may  bo  neces— 
Raiy  to  carrj'  out  their  charitable  purposes,  or  for  the  establishment  and  endow- 
ment of  institutions  of  learning  connected  therewith.  In  case  any  such  cor- 
poration is  the  owner,  by  donation  or  purchase,  of  more  lands  than  herein  or 
in  preceding  section  provided  for,  such  surplus  miist  be  sold  and  conveyed 
by  tho  corporation  within  five  years  after  its  acquisition.  Such  sale  may  be 
made  without  the  order  or  decree  of  the  superior  court  as  hereinafter  provided; 
[Amendment,  approved  April  G,  1880;  Amendments  1830,  G  {Baa.  ed.  1-1);  took 
effect  immediately. ] 

597.  Directors  to  make  verified  report  annually. 

Sec.  597.  The  directors  must  annuall}'  make  a  full  report  of  all  property,  real 
and  personal,  held  in  trust  for  their  corporation  by  them,  and  of  the  condition 
thereof,  to  the  members  of  the  association  for  which  they  are  acting. 

Stats.  1S30,  374,  sec.  1S3. 

598.  Corporations   may,   by  order  of  tJie  superior  court,  sell  or  mortgage  real 
estate. 

Sec.  598.  Corporations  of  the  character  mentioned  in  section  five  hundred 
and  ninety-three  may  mortgage  or  sell  real  property  held  by  them,  upon  obtain- 
ing an  order  for  that  purpose  from  the  superior  court  held  in  the  county  iu 
which  the  property  is. situated.  Before  making  the  order,  proof  must  be  made 
to  the  satisfaction,  of  the  court  that  notice  of  the  application  for  leave  to  mort- 
gage or  sell  has  been  given  by  publication  in  such  manner  and  for  such  time  a'a 
the  court  or  judge  has  directed,  and  that  it  is  to  the  interest  of  the  corp(;ratioa 
that  leave  should  be  granted  as  prayed  for.  The  application  must  be  made  by 
petition,  and  any  member  of  the  corporation  may  oppose  the  granting  of  the 
order  by  siflSilavit  or  otherwise.  [Amendment,  a/>proced  April  G,  ISSO;  Amencl- 
m<-nts  1880,  (i  {lian.  ed.  125);  look  effect  immediately.] 

599.  What  may  he  provided  for  in  their  by-laws,  etc. 

Sec.  599.     Corporations  organized  for  purposes  other  than  for  pi'ofit  may,  ia 
their  by-liuvs,  ordinances,  constitutions,  or  articles  of  incorporatic 
to  the  provisions  in  Title  I.  of  this  part,  provide  for: 

1.  The  qualification  of  members,  mode  of  election,  and  terms 
to  membership; 

2.  Tho  fees  of  admission  and  dues  to  be  paid  to  their  treasury  • 

lol 


^5  GOO-C02  CORPOrcATIONS.  [T)iv.  I,  Pakt  IV, 

3.  The  number  of  members  tb;iL  shall  coasLita':e  a  quorum  at  any  meeting  of 
the  curporation,  and  that  elactioa  of  oiBjor.-i  of  the  corporation  by  a  meeting 
8o  constituted  shall  be  as  valid  as  if  there  had  been  a  majority  of  the  members 
present  thereat  and  voting. 

4.  The  expulsion  and  suspension  of  members  for  misconduct  or  non-payment 
of  dues;  also,  for  restoration  to  membership; 

5.  Contracting,  securing,  paying,  and  limiting  the  amount  of  their  indebt- 
edness; 

G.  Other  regulations,  not  repugnant  to  the  constitution  or  laws  of  the  state, 
and  consonant  with  the  objects  of  the  corporation.  [Amendinemt,  approvrd 
March  14,  1885;  Stalutes  and  Amendments  1885,  loG.] 

Stats.  18G3,  624,  sees.  8,  0.  wr/f/ht,  IG  Ba-b.  4SG;  White  v.  Droimell,  i  Al>b. 

By -la-vV3  may  provide  for  what:  See,  gen-  Pr.,  N.  S.,  1G2;  Shctnii.oii  v.  Fro4,  :i   13.   Mon. 

erally,  see.  303,  ante.  2').\;  Oreij'i  v.  MasM.  Mnl.  Sor.,  Ill  Mass.   IS."*. 

SubJ.  4.     Expulsion  of  member.— As  to  For  an  exhaustive  review  of  t!ie  right  of  ecule-n- 

the   I  iglit  of  institutions  whose  object   is  not  astical  boiliea  to  exercise  discinliiie  over  their 

purely  one  of  gain   to  disfranchise  members:  members,  acco.-ding  to  their  established   rules 

feee  Grant  on  Corp.  2G2-'2j7.      Bjfore  e.xpul-  and  regal  itious,  see  Watson  v.  Jouea,  13  \Vall. 

sion,  a   member  is   entitled   to   notice  of   the  670;  Cha-ic.  v.  Chi'iifij,  58  III.  ."JOO. 
intention,  and  the  grotnids   of   the   proposed         The    courts    will   merely   inquire   whether, 

action,  and  an  opportunity  to  be  heard  in  ()ppo-  according   to   the  law   of   the  a:isoeiatit)n.   the 

gition   to  the  charges:  Dlarb  <£•  W.   S.  Soc.    v.  action   taken   is  authorized:    Wallxr  v.   Wain- 

Vaud'/ke,  2  Wiiart.   309;  Green  v.   A/.   Meth.  n-n'jht.  10  B.irb.  4SG;  and  whether  the  expul- 

Ep.  Hoc,  1  Serg.  &  R.  254;    Waxhinjlon  S'oc.  v.  sion  was  done  iii  tlie  manner  and  by  tlie  b:)dy 

Barker,   20  Pa.   St.   425;  Fuller   v.    Plai 'field  providid  by  that  law:  Boidd'n  v.  Alcxindr, 

Acal.,  6  Conn.  532;  Barrow  v.  Med.  Sac,  12  15  Wall.  131;  Filzyerald  v.  Robinson,  112  Mass. 

Cush.  402;  People  v.  St.  Franci ^rtis  Ben.  •Soc.,  379. 

2t  How.   Pr.  216;  SAle;/  v.  VarOret  Club,   40        M3n3arau3  li33  to  compel  restoration  to 

N.J.  L.  205.    As  a  general  rule,  courts  will  not  privilege  of  memljership,  where  one  has  bucn 

interfere  with  the  proceedings  of  the  associii-  iiicgal.y  removed:  liarrown  v.  Ma.-«.  Mfd.  S;>r., 

tion.     When  members  voluntarily  enter  these  12  Cusli.  402;  ('rorker  v.  Oil  SotUh  .So.-.,    103 

associations  they  subject  themselves  to  tiie  law  Mass.  480;  Sleeper  v.  FranWui  L'/eenm,  7  11.  I. 

of  tile  l))dy,  and  they  cannot  c;)m;)lain  of  the  ex-  523;  .State  v.  Dunn,    12  Am.   Deo.   31;  Brice's 

•rcis  J  of  a  power  to  which  t'ley  have  subscribed:  Ultra  Vires,  45,  note  b. 
High  on  Injunctions,  sec.  230;  Walker  v.  Wain- 

600.    Members  admitted  after  incorporation. 

Sec.  goo.  Members  admitted  after  incorporation  have  all  the  rights  and 
privileges,  and  are  subject  to  the  same  responsibilities,  as  members  of  the  asso- 
ciation prior  thereto. 

Stats.  1863,  624,  sec.  7. 

'  601.    No  member  to  transfer  membership,  etc. 

Sec  GOl.  No  member,  or  his  legal  representative,  must  dispose  of  or  transfer 
any  right  or  privilege  conferred  on  him  by  reason  of  his  memb8rohi2>  of  such 
corporation,  or  be  deprived  thereof,  except  as  herein  provided. 

602.    Rules,  etc.,  of  religious  denominations  requiring  administration  of  tempo- 
ralities. 

Sec.  G02.  Whenever  the  rules,  regulations,  or  discipline  of  any  religious 
denomination,  society,  or  church  require  for  the  administration  of  the  tem- 
poralities thereof,  and  the  management  of  the  estate  and  property  thereof,  it 
shall  be  lawful  for  the  bishop,  chief  priest,  or  presiding  elder  of  such  religious 
denomination,  society,  or  church  to  become  a  sole  corporation,  in  the  manner 
presrnbed  in  this  title,  as  nearly  as  may  be,  and  with  all  the  powers  and  duties, 
and  for  the  uses  and  purposes  in  this  title  provided  for  religious  incorporatiojis, 
and  subject  to  all  the  conditions,  limitations,  and  provisions  in  said  title  pre- 
scribed. The  articles  of  incorporation  to  be  filed  shall  set  forth  the  facts 
autluuizing  such  incorporation,  and  declare  the  manner  in  which  any  vacaucy 
occurring  in  the  incumbency  of  such  bishop,  chief  priest,  or  presiding  elder  ia 

152 


605.  Consolidation  of  Corporations.  Any  corporation  now 
or  hereafter  organized  for  purposes  other  than  profit,  may 
tconsolidate  with]  any  other  like  association  [or  associa- 
tions], or  corporation  [or  corporations],  [created  either] 
under  the  laws  of  the  State  of  California,  or  under  the  laws 
of  any  other  state  or  territory,  [so  as  to  form  a  new  or 
consolidated  corporation],  in  such  manner  as  may  be  author- 
ized by  the  respective  boards  of  directors  or  trustees  of 
such  [associations  or]  corporations  [by  resolution  adopted 
at  meetings  of  the  respective  boards  called  for  that  purpose. 
The  resolution  to  be  adopted  by  each  of  the  respective 
boards  shall  state  the  names  of  all  the  corporations  or  asso- 
ciations to  be  united  by  the  consolidation,  the  name  of  the 
state  or  territory  under  the  laws  of  which  they  are  created 
or  organized,  and  the  dates  of  their  respective  incorpora- 
tion, the  name  by  which  the  new  or  consolidated  corpora- 
tion is  to  be  called  or  known,  the  purposes  for  which  it  is 
to  be  formed,  the  place  where  its  principal  business  is  to  be 
transacted,  the  term  for  which  it  is  to  exist,  the  number 
of  its  directors  or  trustees,  and  the  names  and  residences 
of  those  who  are  appointed  to  act  as  such  for  the  first 
year,  and  shall  designate  three  or  more  persons  by  whom 
articles  of  incorporation  of  the  new  or  consolidated  corpora- 
tion shall  be  subscribed  and  filed  in  compliance  with  thi.i 
section.  Articles  of  incorporation  of  the  new  or  consolidated 
corporation  shall  be  subscribed  and  acknowledged  by  the 
persons  so  designated  as  last  aforesaid  in  the  manner  re- 
quired by  section  two  hundred  and  ninety-two  of  this  code. 
Said  articles  shall  contain  and  set  forth  all  the  matters  re- 
quired by  section  two  hundred  and  ninety  of  this  code,  and 
in  addition  thereto  there  shall  be  attached  to  said  articles 
copies  of  the  aforesaid  resolution  of  the  several  assocSk- 
tions  or  corporations  uniting  in  the  con.solidation,  certified 
by  the  respective  secretaries  of  such  associations  or  cor- 
porations under  the  corporate  seals  thereof;  and  the  said 
articles  of  incorporation  shall  in  the  body  thereof  refer  to 
the  said  resolutions  and  to  the  certified  copies  thereof  so 
attached,  and  by  such  reference  make  the  said  certified 
copies  a  part  of  the  said  articles.  The  said  articles  of  in- 
corporation shall  be  filed  in  the  office  of  the  county  cleric 
of  the  county  where  the  principal  business  of  the  new  or 
consolidated  corporation  is  to  be  transacted,  and  a  certified 
copy  thereof  in  the  office  of  the  secretary  of  state,  in  the 
manner  required   by  this   code   for  the   filing  of  original   ar- 


tides  of  incorporation;  and  thereupon  tlie  secretary  of  St?! 
shall  issue  to  the  corporation,  over  the  great  seal  of  tf 
state,  a  certificate  in  manner  and  form  as  provided  by  sel 
tlon  two  hundred  and  ninety-six  of  this  code.  From  aJ 
after  the  filing  of  such  certified  copy  of  the  articles  of  i| 
corporation  with  the  secretary  of  state  the  former  assoc'il 
tions  or  corporations  uniting  in  the  consolidation  and  corf 
prising  the  component  parts  of  the  new  or  consolidated  co 
poration  shall  cease  to  exist,  and  the  new  or  consolirtat 
corporation  shall  succeed  to  all  the  rights,  duties  and  powe 
of  the  component  associations  or  corporations,  and  shall 
possessed  of  all  the  rights,  duties  and  powers  set  forth 
its  articles  of  incorporation  not  inconsistent  with  this  tit 
and  shall  be  subject  to  all  the  liabilities  and  obligations  [ 
the  former  component  associations  or  corporations,  and  shij 
succeed  to  and  become  vested  with  all  the  property  Iherec, 
both  real  and  personal,  of  every  name  and  nature,  and  mi! 
make  by-laws  and  do  all  things  permitted  by  this  title.]  (l 
effect  60.  days  from  and  after  April  26th,  1909.  Stats.  19(1 
Chap.  721.)    ^  Cjv.  Code,  19C' 


TiTyEXIL]        EELIGIOUS,  SOCIAL,  AND  BENEVOLENT  ASSOCIATIONS.  §603 

required  by  tire  rules,  regulations,  or  discipline  of  such  denovnination,  society, 
or  cliurcli  to  be  filled,  which  stateuieut  shall  he  verified  b}'  afSdavit,  and  for 
proof  of  the  appointment  or  election  of  such  bishop,  chief  priest,  or  presiding 
elder,  or  of  any  succeeding  incumbent  of  such  corporation,  it  shall  be  sufficient 
to  record  with  the  clerk  of  the  county  in  which  such  bishop,  chief  priest,  or 
jKTvesiding-  elder  resides  the  original  or  a  copy  of  his  commission  ^  or  certificate, 
®r  letters  of  election,  or  appointment,  duly  attested;  provided,  all  property  held 
•by  such  bishop,  chief  priest,  or  pi-esiding  elder  shall  be  in  trust  for  the  use, 
purpose,  and  behoof  of  his  religious  denomination,  society,  or  church.  The 
limitation  in  section  five  hundred  and  ninety-five  shall  not  apply  to  corpora- 
tions formed  under  this  section,  when  the  land  is  held  or  used  for  churches, 
hospitals,  schools,  colleges,  orphan  asylums,  parsonages,  or  cemetery  purposes. 
Any  judge  of  the  superior  court  in  the  county  in  which  any  corporation  is 
formed  under  this  chapter  shall  at  all  times  have  access  to  the  books  of  such 
incorporation.  Any  corporation  sole  heretofore  organized  and  existing  under 
the  laws  of  this  state  may  elect  to  continue  its  existence  under  this  act  by  filing 
a  certificate  to  that  effect,  under  its  corporate  seal  and  the  hand  of  its  incum- 
bent, or  amended  articles  of  incorporation,  in  the  form  required  by  the  preced- 
ing section,  as  prescribed  by  section  two  hundred  and  eighty-seven  (287)  of  the 
,  Civil  Code;  and  from  and  after  the  filing  of  such  certificate  or  amended  arti- 
cles, such  corporation  shall  be  entitled  to  the  privileges  and  subject  to  the 
duties,  liabilities,  and  provisions  of  this  act  exjiressed.  \Amendme>d,  approved 
April  (5,  1880;  Amendments  1880,  G  {Ban.  ed.  125);  look  effect  immedlaiehj.\ 

The  foregoing  section  C02  was   ori^anally  a     immediately.     That  act  contains  the  following 
new  section  added  to  the  Code  by  act  of  March     additional  section: 
30,  1878;  Amendments  1877-8,  84;  took  effect 
Continuance  of  existence. 

Sec.  2.  Any  corporation  sole  lieretofove  organized  and  existing  under  the  laws  of  this  state 
may  elect  to  continue  its  existence  under  this  act  by  tiling  a  certilicate  to  t'lat  elFect,  under  its 
corporate  seal  aoid  the  hand  of  its  incumbent  or  amended  articles  of  incorjtoration,  in  tlie  form 
required  by  the  preceding  sectidu,  as  ] prescribed  by  section  two  hundred  and  ciglity-se\en  (287) 
of  the  Civil  Cod«;  and  from  and  after  the  filing  of  such  certificate  or  amended  articles  such  cor- 
poration shall  be  entitled  to  the  privileges  and  subject  to  the  duties,  liabiiiUes,  and  provisicos 
•of  this  act  expressed. 

■603.    Religiouii  societies  may  incorporate. 

Sec.  COo.  Whenever  the  regulations,  rules,  or  discipline  of  any  church  or 
Teligious  society  require,  for  the  administration  of  the  temporalities  thereof,  or 
lor  the  management  of  the  property  or  estate  thereof,  any  diocese,  synod^  or 
district  organization  of  such  church  or  religious  society  may  elect  directors  and 
become  an  incorporation  in  the  manner  prescribed  in  this  title,  and  wiLh  all  the 
powers  and  duties,  and  for  the  uses  and  pui-poses,  in  this  title  pix)vided  for 
benevolent  or  religious  incorpox*ations,  and  subject  to  all  the  conditions,  limi- 
tatiouf?,  and  pnovisions  in  paid  title  prescribed,  except  as  otherwise  provided  in 
this  section;  provided,  that  directors  of  such  incorporation  may  be  elected,  and 
that  the  by-laws  for  its  government  may  be  made  and  amended,  by  the  conven- 
tion, synod,  or  other  representative  body  of  such  church  or  religious  society,  in 
and  for  such  district,  in  accordance  with  the  constitution,  by-laws,  discipline, 
or  regulation  thereof,  at  any  regular  meeting,  or  special  meeting  called  for  that 
purpose;  and  provided,  the  certificate  of  incorporation  and  of  the  election  of 
directors  to  be  filed  shall  be  sulfijiently  signed  and  attested  by  the  signature  of 
the  presiding  ofiicer  and  secretary  of  the  representative  convention,  synod,  or 
other  suv-h  body,  in  which  such  electioL  is  held;  and  provided,  all  property 
Leld  Ly  such  incoi-poration  shall  be  in  trust  for  the  use,  benefit,  and  purpose  of 

153 


§§  G08-G11  CORPORATIONS.  [Div.  I,  Part  17, 

the  cliurcb  oi*  rclig-ioiis  society  by  and  for  wliicli  such  incorporation  was  formed, 
and  in  and  for  which  such  diocese,  synod,  or  other  district  is  an  organized  or 
-constituent  part;  and  that  the  limitation  in  section  five  hundred  and  ninety-five 
shall  not  apj^ly  to  corporations  formed  under  this  section,  when  the  laud  is  held 
or  used  for  churches,  hospitals,  schools,  colle^'es,  asylums,  parsouaqi'es,  or  ceme- 
tery purposes.  [New  section,  approved  March  12,  1885;  Slalates  and  Amendments 
1885,  1U9.1 


TITLE  XIII. 

CEMETERY  CORPOHATIONS. 

'608.   How  much  land  may  be  held,  and  how  disposed  of. 

Seo.  G08.     Corporations  organized  to  establish  and  maintain  cemeteries  may 

take  by  purchase,  donation,  or  devise  land  not  exceeding  three  hundred  and 

twenty  acres  in  extent  in  the  county  wherein  their  articles  of  incorporation  are 

:filed,  to  be  held  and  occupied  exclusively  as  a  cemetery  for  the  burial  of  the 

■dead.     The  lands  must  be  surveyed  and  subdivided  into  lots  or  plats,  avenues, 

and  walks,  under  order  of  the  directors,  and  a  map  thereof  filed  in  the  office  of 

the  recorder  of  the  county  wherein  the  lands  are  situated.     Thei-eafter,  upon 

such  terms  and  subject  to  such  conditions  and  restrictions,  to  be  inserted  in 

the  conveyances,  as  the  by-laws  or  directors  may  prescribe,  the  directors  may 

sell  and  convey  the  lots  or  plats  to  purchasers. 

SeeStits.  1859,  281,fortheoriginof  this  title.  Wliether  the  legislature  has  the  constitutional 

Cemetsriea— See  an  article  ia  16  Cent.  Law  right  to  authorize  a  municipahty  to  remove  the 

■Journal,  IGl,  entitled  "Graveyard  Law,"  for  a  reiiiaius  of  tlie  dead  from  cem'-t cries,  seo  Craig 

review  of   the  ancient  and  modern   adjudic.i-  v.  P'n-st  I^resbi/terian  Ch.  of  /'il/tih'iri//i,  88  Pa. 

tions  upon   que'^tious   connected   with   burial,  St.  42;  S.  C,  ;)2  Am.  Rep   417,  and  ii)tehy  the 

and  the  rights  of  members  of  cemetery  cor-  editor  of  tlie  American  Reports,  p.  42^. 

poratioiis.     In  19  Am.  Law  Reg.  63,  will  be         See  ;50s<,  sec.  801,  subd.  17,  note,  "Easement 

found   an    article    upon    lots    in    cemeteries,  of  Right  of  Burial." 

609.  Who  are  members  eligible  to  vote  and  hold  office. 

Sec-  goo.  Every  person  of  full  age  who  is  proprietor  of  a  lot  or  plat  in  the 
cemetery  of  the  corporation,  containing  not  less  than  two  hundred  square  feet 
of  land,  or,  if  there  be  more  than  one  proprietor  of  any  such  lot,  then  such  of 
the  proprietors  as  the  majority  of  joint  j^roprietors  designate,  Jiiay,  in  person 
or  by  proxy,  cast  one  vote  at  all  elections  had  by  the  corporation  for  directors 
or  any  other  purpose,  and  is  eligible  to  any  ofSae  of  the  coi-poration.  At  each, 
annual  meeting  or  election,  the  directors  must  make  a  report  to  the  proprietors 
of  all  their  doings,  and  of  -the  management  and  condition  of  the  property  and 
concerns  of  the  corporation. 

610.  3Piy  hold  personal properfi/,  to  what  amount. 

Sec.  GIO.  S-uch  corporations  may  liold  personal  property  to  an  amount  not 
exceeding  five  thousand  dollars,  in  addition  to  the  surplus  remaining-  from  the 
sales  of  lots  or  plats  after  the  payments  required  in  the  succeeding  section. 
Such  surplus  must  be  disposed  of  in  the  improvement,  embellishment,  and 
preservation  of  the  cemetery,  and  j)aying  incidsutai  expenses  of  the  corpara- 
tions,  and  in  no  other  manner. 

See  also  Stats.  186*,  12,  sec.  1. 

611.  Maij  issue  bonds  to  pay  for  ground^. 

Sec  Gil.  Such  corporations  may  issue  their  bonds,  bearing  interest  nob. 
exceeding  twelve  par  cent  per  annu.n,  for  the  purchase  of  lands  for  thdr  ceme- 

15i 


607e.  Fines,  Penalties  and  Forfeitures,  and  the  Dis- 
position to  be  Made  Thereof.  All  tines,  pennlties  and  for- 
feitures imposed  and  collected  in  any  [city  or]  county,  or 
city  and  county,  of  this  State  under  the  provisions  of  any 
law  of  this  State,  now  or  hereafter  enacted,  relating  to  or 
affecting  children  or  animals,  in  every  case  where  the  prose- 
cution was  instituted,  aided,  or  conducted  by  any  corpora- 
tion or  society  now  or  hereafter  existing,  [incorporated  or 
organized  for  the  prevention  of  cruelty  to  animals  or  to 
children]  must,  except  where  otherwise  provided,  inure  to 
such  corporation  or  society  in  aid  of  the  purposes  for  which 
it  was  incorporated  or  organized.  In  addition  to  said  fines, 
penalties  and  forfeiture,  every  [such]  society  incorporated 
and  organized  for  the  prevention  of  cruelty  to  animals,  or 
for  the  prevention  of  cruelty  to  [children],  may,  in  each 
city,  or  city  and  county  or  county  where  such  society  ex- 
ists, while  actively  engaged  in  enforcing  the  provisions  of  the 
laws  of  this  State,  now  or  hereafter  enacted,  for  the  pre- 
vention of  cruelty  to  animals  [or  children],  or  arresting,  or 
prosecuting  offenders  thereunder,  or  preventing  cruelty  to 
animals  [or  children]  be  paid,  as  compensation  therefor, 
from  the  county,  or  city  and  county  general  fund  by  the 
board  of  supem'isors,  a  sum  not  exceeding  one  hundred  and 
fifty  dollars  per  month,  in  the  same  manner  as  other  claims 
against  said  county,  or  city  and  county,  are  paid.  (In  effect 
60  days  from  and  after  March  20,  1909.  Stats.  1909.  Chap. 
343.)  Civ.  Code,   1909. 


is- 
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to 
Eh 

607f.  Members  and  Agents  May  Be  Authorized  to  Act  a 
Police  Officers.  All  members  and  agents,  and  all  officers  o 
each  or  any  of  such  corporations  or  societies,  as  may  bs 
the  tiTistees  thereof  be  duly  authorized  in  writing,  approve 
by  a  judge  of  the  superior  court  of  the  county  in  which  sue 
corporation  or  society  was  organized,  and  sworn  in  the  samt 
manner  as  are  constables  or  peace  officers,  have  power  law 
fully  to  intei-fere  to  prevent  the  perpetration  of  any  act  o 
cruelty  upon  any  child  or  dumb  animal,  and  may  use  sucl 
force  as  is  necessary  to  prevent  the  same,  and  to  that  enc 
may  summon  to  their  aid  any  bystander. 

They  may  make  arrests  for  the  violation  of  any  penal  la^ 
relating  to  or  affecting  children  or  animals  in  the  sam 
manner  as  a  constable  or  other  peace  officer;  and  may  carr; 
the  same  or  similar  weapons  that  such  officers  are  authorize! 
to  carry;  [provided,  however,  that  in  cities  of  the  first  clas 
no  such  member,  officer  or  agent  of  such  societies  sha 
carry  such  weapon  imtil  permission  in  writing  has  been  firs 
granted  to  him  so  to  do  by  the  board  of  police  commissioner 
of  said  city  or  cities].  All  such  members  and  agents  must 
when  making  such  arrests,  exhibit  and  expose  a  suitabl 
badge    to    be   adopted  by   such   corporation   or   society. 

All  persons  resisting  such  specially  appointed  officers,  whe 
performing  any  duty  under  this  section,  are  guilty  of  a  niis 
demeanor.  (In  effect  60  days  from  and  after  February  2( 
1909.     Stats.  1909,  Chap.  38.)  Civ.  Code,  190 


Title  XIIL]  CEMETERY  COnrO?.ATIOXS.  §§  G12-G14 

teries,  payable  out  of  tlio  proceeds  of  tlio  cemetery,  and  not  otherwise;  sixty 
per  cent  of  tbe  proceeds  of  sales  of  lots,  plats,  and  graves  must  he  ajiplied  at 
least  every  three  months  to  the  paynieut  of  the  bonds  and  interest.  Such  cor- 
porations may  also  agi'eewith  the  person  or  persons  from  whom  cemetery  lands 
shall  be  purchased  to  paj'  for  such  lands,  as  the  purchase  price  thereof,  any 
Bpecilied  share  or  portion,  not  exceedin.t,'  one  half,  of  the  proceeds  of  all  sales 
of  lots  or  plats  made  from  such  lands;  such  payment  to  be  made  at  such  inter- 
vals as  may  be  ap^reed  upon.  In  all  cases  where  cemetery'  lands  shall  be  pur- 
chased and  agreed  to  be  paid  for  in  the  manner  last  provided,  the  prices  for 
lots  or  plats  speciiled  in  the  b3'-laws,  rules,  or  regulations  first  adopted  by  such 
association,  or  i)rescribed  in  the  agreement  between  the  cemetery  and  the  per- 
son or  persons  from  whom  the  cemetery  lands  were  j)urchased,  shall  not  be 
changed  without  the  written  consent  of  a  majority  in  interest  of  the  persona 
from  whom  such  lands  were  purchased,  their  heirs,  representatives,  or  assigns. 
[AjuciKlnim/,  approred  April  IG,  1880;  Anu-nthnenls  1880,  12  [Ban.  ed.  37G);  look 
effect  iiniuediali'li/.j 

612.  j\fcn/  take  and  hold  property  or  use  income  thereof,  how. 

Sec.  G12.  Cemetery  corporations  may  take  and  hold  any  property  bequeathed 
or  given  them  on  trust,  or  the  lots,  plats,  or  graves  thereon,  for  the  specific 
purpose  of  embellishing  or  improving  the  grounds,  avenues,  or  sui^erstructures 
of  their  cemeteries,  to  use  the  income  thereof,  for  the  erection,  preservation,  or 
repair  of  monuments  therein,  or  for  any  other  purpose  or  design  consistent 
with  the  objects  of  the  corporation. 

613.  Burial  .lot  iiialiemtble  after  interment  iJicrein. 

Si:c.  G13.  "Whenever  an  interment  is  made  in  any  lot  or  plat  transferred  to 
individual  owners  l)y  the  coi'poratiun,  (he  same  thereby  becomes  foi'ever  inalien- 
able, and  descends  in  regular  line  of  succession  to  the  heirs  at  law  of  tlie  owner. 
When  there  are  several  owners  of  interests  in  such  lot  or  plat,  one  or  more  may 
acquire  b}'  jiurchase  the  interest  of  others  interested  in  the  fee-sunple  title 
thereof;  but  no  one  not  an  owner  acquires  interest  or  right  of  burial  therein  by 
purchase;  nor  must  any  one  be  buried  in  any  such  lot  or  plat  not  at  the  time 
owning  an  interest  therein,  or  who  is  not  a  relative  of  such  owner,  or  of  his 
wife,  except  by  consent  of  all  jointly  interested;  provided,  however,  that  when 
all  the  bodies  buried  in  any  such  lot  shall  have  been  removed  therefrom,  with 
the  consent  of  the  owners  of  such  lot,  it  shall  be  lawful  for  the  then  owners  of 
such  lot  to  sell  and  transfer  the  same  by  deed;  and  any  such  sale  and  transfer 
heretofore  made  is  hereby  declared  to  be  valid  and  effectual  to  transfer  the  title 
to  the  i)urchaser,  any  law  to  the  contniiy  thereof  notwithstanding.  [Amend- 
ment, approved  February  IQ,  l^'So;  btalitles  and  Amendments  1885,1;  lu  force 
from  its  pa.^snye.  | 

614.  Lot-'iiowrs  previous  to  purchase  to  he  members  of  the  corporation. 

Sec.  C14.  "When  grounds  purchased  or  otherwise  acquired  for  cemetery  pur- 
poses have  been  previously  used  as  a  burial-ground,  those  who  are  lot-owners 
at  the  time  of  the  purchase  continue  to  own  the  same,  and  are  meujbers  of  the 
corporation,  with  all  the  privileges  a  purchase  of  a  lot  from  the  corporation 
confers. 

l.-)5 


§3c:a-G23  conror.ATiONS.  [Dit.  i,  pakt  rv, 

TITLE   XIV. 
AGRICULTURAL-FAIR  CORPORATIONS. 

620.  Jifrnf  acquire',  and  hold  real  ci^tate,  how  much. 

Sec.  G'20.  Agricultural-fair  cor|:)oration3  may  purchase,  hold,  or  lease  any 
quantity  of  land,  not  exceedinj^  in  the  ag;2rregate  one  hundred  and  sixty  acres, 
with  such  building's  and  improvements  as  may  be  erected  thereon,  and  may 
sell,  lease,  or  otherwise  dispose  of  the  same  at  joleasure.  This  real  estate  must 
be  held  for  the  purpose  of  erecting  buildings  and  other  improvements  thereon, 
to  promote  and  encourage  agriculture,  horticulture,  mechanics,  manufactures, 
stock-i'aising,  and  general  domestic  industry. 

See  Stats.  1S39,  104,  for  the  origin  of  this  title. 

621.  Shall  not  contract  debts  or  liabilities  exceedinri  amount  in  treasunj. 

Sec.  C21.  Such  corporation  must  not  contract  any  debts  or  liabilities  in 
excess  of  the  amount  of  money  in  the  treasury  at  the  time  of  contract,  except 
for  the  purchase  of  real  property,  for  which  they  may  create  a  debt  not  exceed- 
ing five  thousand  dollars,  secured  by  mortgage  on  the  property  of  the  cor- 
poration. The  directors  who  vote  therefor  are  personally  liable  for  any  debt 
contracted  or  incurred  in  violation  of  this  section. 

622.  Not  for  profit. 

Sec  G22.  Agricultural- fair  corporations  are  not  conducted  for  profit,  and 
have  no  capitid  stock  or  income  other  than  that  derived  from  charges  to  exhib- 
itors and  fees  for  membership,  which  charges,  together  with  the  term  of  mem- 
bership and  mode  of  acquiring  the  same,  must  be  provided  for  in  their  by-laws. 
Such  fees  must  never  be  greater  than  to  raise  sufficient  revenue  to  discharge  the 
debt  for  the  real  estate  and  the  improvements  thereon,  and  to  defray  the  current 
expenses  of  fairs. 

TITLE  XV. 
GAS  CORPORATIONS. 

628.  Corporations  to  obtain  privilege  from  city  or  town,  and  use  meters  proved  by 
inspector. 

Sec.  C28.  No  corporation  hereafter  formed  must  supply  any  city  or  town 
"with  gas,  or  lay  down  mains  or  pipes  for  that  purpose  in  the  streets  or  alleys 
thereof,  without  permission  from  the  city  or  town  authorities,  granted  in  pur- 
suance of  the  provisions  of  the  Political  Code  or  of  statutes  expressly  continued 
by  such  code.  Nor  must  such  corporation  furnish  or  use  any  gas-meter  which 
has  not  been  proved  and  sealed  by  the  inspector  of  gas-meters. 

See  Stats.  1803,  G47,  for  the  origin  of  this  title, 

629.  Gas  to  be  supplied  on  written  application. 

Sec  G29.  Upon  the  application  in  writing  of  the  owner  or  occupant  of  any 
building  or  premises  distant  not  more  than  one  hundred  feet  from  an}'  main  of 
the  corporation,  and  payment  by  the  applicant  of  all  money  due  from  him,  the 
corporation  must  supply  gas  as  required  for  such  building  or  premises,  and 
cannot  refuse  on  the  ground  of  any  indebtedness  of  any  former  owner  or  occu- 
pant thereof,  unless  the  applicant  has  undertaken  to  pay  the  same.  If,  for  the 
Bpace  of  ten  days  after  such  application,  the  corporation  refuses  or  neglects  to 

lu6 


Title  XVI.]  LAXD  AND  EUILDING  CORPOllATIONS.  §§  630-640 

supply  (he  gas  required,  it  must  pay  to  the  applicant  the  sum  of  fifty  dollars  as 
liquidated  damages,  and  five  dollars  a  day  as  liquidated  damages  for  every  day 
such  refusal  or  neglect  continues  thereafter. 

Gupplyiiig  cas. — ImlependcDt  of  positive  Drmly,  27  N.  J.  L.  215.  If  the  refusal  to  sup- 
cnacttm-'iit,  a  p.-is  company  is  not  Ijonml  to  sup-  ply  gas  is  sought  to  bo  justified  on  the  ground 
ply  gas  to  every  <nc  who  may  dfniaiid  it.  A  of  failure  to  m.vke  a  written  demand,  such 
maker  of  gas  is  subjected  to  no  greater  duties  failure  must  be  pleaded  or  will  be  deemed  to 
or  liabilities  than  the  manufacturer  and  voiidcr  have  been  waived:  Shepard  v.  Milwaukee  Gas- 
of  other  commodities:  McCiine  v.  Norimrh  Oiut  Ihjht  Co.,  11  Wis.  234. 
Co.,  30  Conn.   531;  Patterson  Gas  injht  Co.  v. 

630.  When  corporation?^  may  vfta^e  (o  supply  pas. 

Stc.  C30.  No  corporation  is  required  to  lay  service-pipe  where  serious  obsta- 
cles exist  to  laying  it,  unless  the  applicant,  if  required,  deposits  in  advance, 
with  the  corporation,  a  sum  of  mone}'  sufScient  to  i^ay  the  costs  of  layiug  such 
sex'vice-pipe,  or  his  proportion  thereof. 

631.  Agent  of  corporation  may  inspect  meters. 

Sec.  G31.  Any  agent  of  a  gas  corporation  exhibiting  written  authointy,  signed 
by  the  president  or  secretaiy  thereof  for  such  purpose,  may  enter  any  building 
or  premises  lighted  with  gas  supplied  by  such  corporation,  to  inspect  the  gas- 
meters  therein,  to  ascertain  the  quantity  of  gas  supplied  or  consumed.  Eveiy 
owner  or  occupant  of  such  buildings  who  hinders  or  prevents  such  entry  or 
inspection  must  pay  to  the  corporation  the  sum  of  fifty  dollars  as  liquidated 
damages. 

632.  When  per.'^ons  neglect  to  pay,  gas  may  be  shut  off. 

Sec.  G32.  All  gas  corporations  may  shut  oti"  the  supply  of  gas  from  any 
person  who  neglects  or  refuses  to  pay  for  the  gas  supplied,  or  the  rent  for  any 
meter,  jiipes,  or  fittings  provided  by  the  corporatiou  as  required  by  his  con- 
ti'act;  and  for  the  purpose  of  shutting  off  the  gas  in  such  case  any  employee  of 
the  corporation  may  enter  the  building  or  premises  of  such  person,  between  the 
Lours  of  eight  o'clock  in  the  foi'enoon  and  six  o'clock  in  the  afternoon  of  any 
day,  and  remove  therefrom  any  property  of  the  corporation  used  in  supplying 
gas. 

Slmttin3  o1  gas.— The  right  to  shut  off  the  Damage  for  •wronsful  shuttmg  o1  of  gas 
gas  docs  n  .t  cn  tend  to  arrears  for  gas  1)U  rued  held  tot. e  deprcciatio.iin  value  of  the  premises 
by  former  occupant;  of  tlie  pri'nuses:  Morcyv.  as  compared  with  ncighborin;;  Iiouse  sui>plied 
Met.  Uas-lhjIU  Co.,  38  N.  Y.  Super.  Ct.  ISj.  with  gas:  Oats-liyht  Co.  v.  CoUiday,  2 J  Md.  1. 


TITLE  XVI. 
LAND  AND  BUILDING  CORPORATIONS. 

639.  Uow  organized. 

Six.  G30.  Corporations  organized  for  the  erection  of  buildings  and  making 
other  improvements  on  real  property  may  raise  funds  in  shares  not  exceeding 
two  hundred  dollars  each,  payable  ia  periodical  installments.  Such  bodies  are 
known  as  land  and  building  corporations,  and  may  be  organized  with  or  with- 
out a  capital  stock.  {Ameudmod,  approved  Jllarah  30, 1874;  Amendnienls  1873-4, 
217;  took  rffixt  July  I,  1874.  ] 

This  title  is  principally  drawn  from  Stats.  18G1,  507. 

640.  Jl/fl/y  borrow  money. 

Sec.  040.  Any  such  corporation  may  borrow  money  for  the  purpose  of  carry- 
ing out  its  objects,  and  may  give  as  security  therefor  its  shares  or  mortgage 
upon  its  real  estate, 

157 


§§  641-645  CORPORATIONS.  [Div.  I,  Part  IV, 

641.  Powers  and  object  of  corporation. 

Sec.  G41.  Any  such  corporation  may  purchase  real  estate  and  erect  buildings 
for  its  members,  and  make  loans  to  its  members  for  the  purpose  of  aiding  them 
in  acquiring  and  improving  real  estate.  Such  loan  must  iu  all  cases  be  secured 
on  such  real  estate. 

642.  IFay  infmre  the  lives  of  members  and  debtors. 

Sec.  G42.  Such  corporation  may  insure,  in  some  life  insurance  company 
incorjDorated  under  the  laws  of  this  state,  the  lives  of  its  members  and  debtors. 
In  case  of  the  death  of  a  debtor  or  member  so  insured,  the  amount  recovered 
on  the  polic3'  must  be  applied  to  extinguish  the  indebtedness,  including  the 
premium  paid,  and  the  residue,  if  any,  must  be  paid  to  the  legal  representatives 
of  the  decedent. 

643.  WJiat  real  estate  may  be  oioned  at  any  one  time. 

Sec.  G43.  Any  such  corporation  may  purchase,  hold,  and  convey  real  estate 
as  follows: 

1.  The  lot  and  building  in  which  the  business  of  the  corporation  is  carried 
on,  the  cost  of  which  must  not  exceed  twenty  thousand  dollars; 

2.  Such  as  may  from  time  to  time  be  necessary  to  sujiply  the  wants  of  its 
members,  the  cost  of  which,  held  unallotted  to  the  members  thereof  at  any  one 
time,  must  not  exceed  the  sum  of  one  hundred  thousand  dollars; 

3.  Such  as  shall  have  been  mortgaged,  i^ledged,  or  conveyed  to  it  in  trust,  to 
secure  money  loaned  or  to  secure  the  purchase  price  thereof  in  pursuance  of 
the  regular  business  of  the  corporation. 

644.  Whal  the  by-laius  may  provide. 

Sec  G44.  The  by-laws  of  such  corporations  must  specify  the  amount  of  the 
periodical  subscriptions  or  payments  to  be  made  by  each  member,  the  time  and 
manner  in  which  such  payments  are  to  be  made;  the  fines  and  forfeiture  for 
default;  the  time  and  manner  of  election  of  directors  and  other  officers,  and 
their  terms  of  office;  the  manner  in  which  the  real  estate  may  bo  distributed, 
allotted,  or  sold  to  its  members;  the  terms  and  conditions  upon  which  loans 
maybe  made  to  its  members  and  by  them  repaid  to  the  corporation;  the  manner 
in  which  a  person  may  become  and  cease  to  be  a  member;  the  conditions  on 
"which  members  may  withdraw  from  the  corporation,  and  the  provisions  for  the 
payment  to  withdrawing  members  of  the  sums  of  money  duo  to  them  arising 
from  subscriptions  or  payments,  and  the  proportion  of  the  profits  such  with- 
drawing members  may  receive  on  withdrawal. 
See  also  Stats.  1SG7-8,  539,  sec.  1. 

645.  Secretary  must  make  annual  statement,  and  publish  same. 

Sec  G45.  The  secretary  of  any  such  corporation  must,  once  in  each  j'ear  dur- 
ing the  existence  of  the  corporation,  pi'epare  a  full  and  explicit  statement  of  the 
financial  affairs  thereof,  comprising  a  balance-sheet,  statements  of  receipts  and 
expenditures,  profit  and  loss,  and  assets  and  liabilities,  which  must  be  audited 
and  verified  by  two  competent  persons  (not  directors),  elected  by  the  general 
body  of  shareholders,  and  be  countersigned  by  the  president  and  secretary.  A 
copy  of  such  statement  must  be  printed  and  circulated  among  tho  members, 
and  appear  immediately  after  the  annual  meeting  of  tho  corporation  daily  at 
least  one  week,  or  weekly  at  least  four  weeks,  in  one  or  more  newspapers  pub- 
lished at  tho  place  of  the  principal  business  of  the  corporation. 

153 


648.  Definition  of.  The  name  "building  and  loan  [as- 
sociations"!  as   used  in   this   titlP  sbaii    inr.i„ri<:>._, 

64Sa  (new).  How  Formed.  Buildin.sr  and  loan  associa- 
tions may  be  formed  under  this  title  with  or  without  guar- 
antee or  other  capital  stock  with  all  the  rights,  powers  and 
privileges  and  subject  to  all  the  restrictions  and  liabilities 
set  forth  in  this  title.  If  formed  without  any  capital  stock 
or  with  guarantee  capital  stock  only,  the  working  capital  may 
be  accumulated  by  the  issue  of  membership  shares,  units  or 
certificates  having  a  paid  up  or  ultimate  matured  installment 
value  of  one  hundred  or  two  hundred  dollars  each,  and  en- 
titled to  all  the  rights,  powers  and  privileges  and  subject  to 
all  the  restrictions  and  liabilities  provided  in  this  title  for 
shares  of  authorized  capital  stock  of  a  similar  class.  Any 
building  and  loan  association  heretofore  formed  may  re- 
incorporate under  the  provisions  of  this  section  and  may  sub- 
stitute membership  shares,  units  or  certificates  of  similar 
classes  for  its  outstanding  or  authorized  shares  of  capital 
stock,  other  than  guarantee  capital  stock,  by  the  unani- 
mous vote  of  its  board  of  directors  and  by  a  vote  or  written 
assent  of  the  stockholders  representing  at  least  two-thirds 
of  the  subscribed  capital  stock  and  by  filing  amended  articles 
of  incorporation  with  the  county  clerk  of  the  county  in  which 
the  corporation's  principal  place  of  business  is  located  and 
a  copy  of  said  amended  articles,  certified  by  such  county 
clerk.  In  the  office  of  the  secretary  of  state.  (In  effect  60 
days  from  and  after  March  25,  1909.     Stats.  1909,  Chap.  412.) 

Civ.    Code,    1909. 

649.  ArticI 

^■ho  may  desire\l\'ZluT'''°''-     -^"^-  ""nib.r  of   n 

"^-ty,r::ticle"3^^^^^^-^--e:Lr::X^t     ""^    '^''' 

1-  The  name  Of  the  r""°'"""«"  ^^aH     ou"n"°  ^^""'^''^^ 

2-  The  purnos^f         ^"'"Poration.  ^oniam. 

^"^■^'^^'-  '''"   '"'''^^  or  seminarv  is  to   , 

■*■   The  number  of  if     .  ^  ™"- 

five  nor  more    rtu  ^''ustees,  which  shpii 

dences    of    the    .       "   ^^enty-five],   and    th.  '  ""^  '"^«  t'>^« 

"amed  and  tllf      ''""'•      ^^^    term  "or   1 ,  "?""'  ^"^  '^^^i- 

-  ^'--.  3han  ;:io;';r    "-^    -«    tXr-.  --  -so  be 

'T^^^::^  s  tf  ^°  -- ^"^^"°"'  --'^  -  -^x 

scribed      rin  i^  '"''"^^  and  descrinJin  ''^*^'    together 

C'v.   Code,   1900. 


r 


T 
6 

Iv 

t( 


64S.  Definition  of.  The  name  "building  and  loan  [as- 
sociations"]   as   used   in    this   title   shall   include: — 

[First.]  Corporations  formed  for  the  purpose  of  i-eceiv- 
ing  money  from,  and  loaning  money  to,   tlieir  members  only. 

[Second.]  Corporations,  associations,  companies,  copart- 
nerships, and  individuals  transacting  the  l:)usiness  of  issuing 
or  selling  bonds,  debentures,  certificates,  shares  of  stock,  or 
other  papers,  by  whatever  names  said  instruments  may  be 
designated,  whether  said  instruments  are  issued  for  money 
paid  in  advance  or  for  money  to  be  paid  in  installments,  [but 
with  an  intent,  either  implied  or  expressed,  that  the  pro- 
ceeds or  accumulated  installments  thereof  and  thereon  are 
to  be  withdrawable  or  repayable,  with  accumulated  profits, 
at  some  future  fixed,  or  indefinite  date  of  maturity] ;  pro- 
vided always,  that  this  section  does  not  include  persons, 
copartnerships  or  corporations  engaged  in  any  kind  of  bank- 
ing business.  (In  effect  from  and  after  March  22,  1909.  Stats. 
1909,  Chap.  373.)  Civ.  Code,   1900. 


Title  XVII.]  COLLEGES  AND  SEMINARIES  OF  LEARNING.  §§  G4G-649 

646.  Liability  of  members. 

Section   G4G  was  repealed   by  act  approved  one  year  has  elapsed  since  lie  ceased  to  be  a 

Marcli    30,    1874;   Amendments    1873-4,    217;  member  before  suit  is  commenced,  nor  for  any 

took  effect  July  1,  1874.  debtor  liability  contracte<l  after  tiie  time  at 

Repealed  section:  _  which  he  ceased  to  be  a  member,  nor  unless  it 

"  Skc.  G4G.     Every  present  and  past  member  af)pears  to  tlie  court  that  the  corjiorntion  is  un- 

of  such  corporation  is  personally  liablu  for  such  able  to  satisfy  such   debts  and  liabilities;  nor 

proportion  of  all  its  debts  and  liaMlities,   in-  must  any  contribution  bo  required   from  any 

eurred  duiing  iiis  membership,  r.s  the  number  member  or  past  member  exceeding  the  amount 

of  share.-s  suljscribed  by  him  bears  to  the  whole  unpaid  ou  the  shares  iu  respect  of  which  he  ia 

number  of  subscribed  shares;  but  no  pitst  mem-  liable." 
ber  is  liable  for  such  contribution  if  more  than 

647.  Consolidation  and  transfer  of  corporation  business  and  property. 

Sec.  G47.  Any  two  or  more  such  corporations  may  unite  and  become  incor- 
porated iu  one  body,  with  or  without  any  dissolution  or  division  of  the  funds 
of  such  corporation,  or  either  of  them;  or  any  such  corporation  may  transfer  its 
engagements,  funds,  and  property  to  any  other  such  corporation,  upon  such 
terms  as  may  be  agreed  upon  by  two  thirds  of  the  members  of  each  of  such 
bodies  present  at  general  meetings  of  the  members,  convened  for  the  purpose 
by  notice,  stating  the  object  of  the  meeting,  sent  through  the  post-office  to 
every  member,  and  by  general  notice,  appearing  daily  at  least  one  week,  or 
weekly  at  least  two  weeks,  in  some  newspaper  published  at  the  place  of  the 
principal  business  of  the  corporation;  but  no  such  transfer  can  prejudice  any 
right  of  au}^  creditor  of  either  corporation. 

648.  Married  women  and  minors  as  members. 

Section  G4S  was  repealed   by  act  approved  be  admitted  as  members,  and  may  take  and 

March   30,    1874;    Amendments   1873-4,    217;  hold  shares  in  such  corporations,  and  may  exe- 

took  e (feet  July  1,  1874.  cute   all   necessary  instrumeuta   and   give   all 

Repealed  section:  necessary  acquittances,  and  sell  an<l  transfer 

"  Sec.  048.    Married  women  and  minors  may  their  shares,  in  like  manner  as  other  members." 


TITLE  XVII. 
COLLEGES  AND  SEMINARIES  OF  LEARNING. 

This  title  was  added  by  an  act  to  take  eflfect  for  an  act  relative  to  the  creation  of  tmsts  for 

from  and  rftcr  its  passage,  approved  jNlrrcIi  14,  the  cmlowment  and  maintenance  of  institutes 

188.');  Statutes  and  Amendments  188."),  l.'>3.    See  of  learning, 
also  in  Statutes  iu  Force,  title  "Education," 

649.    Providing  for  the  incorporation  of  colleges  and  seminaries  of  learning. 

Sec.  G49.  Any  number  of  persons  who  may  desire  to  establish  a  college  or 
seminary  of  learning  may  incorporate  themselves  as  provided  in  this  part, 
except  that  in  lieu  of  the  requirements  of  section  two  hundred  and  ninety,  the 
articles  of  incorporation  shall  contain: 

1.  The  name  of  the  corporation; 

2.  The  purposes  for  which  it  is  organized; 

3.  The  place  where  the  college  or  seminary  is  to  be  conducted; 

4.  The  number  of  its  trustees,  which  shall  not  be  less  than  five  nor  more  than 
fifteen,  and  the  names  and  residences  of  the  trustees.  The  term  for  which  the 
trustees  named  and  their  successors  are  to  hold  office  may  also  be  stated.  If  it 
is  desired  that  the  trustees,  or  any  portion  of  them,  shall  belong  to  any  organi- 
zation, society,  or  church,  such  limitation  shall  be  stated; 

5.  The  names  of  those  who  have  subscribed  money  or  property  to  assist  in 
founding  the  seminary  or  college,  together  with  the  amount  of  money  and 
description  of  property  subscribed. 

See  note  at  head  of  this  title. 

159 


g5  530,  6.51  COIirORATIOXS.  [Div.  I,  Tart  IV,  Title  XVII. 

650.  PozD'Ts  of  frusfees  of  coUrgps. 

Sec.  G')0,  Unless  otherwise  provided  in  t!ie  articles  of  incorporation,  the 
board  of  trustees  shall,  as  soon  as  organized,  so  classify  themselves  that  on© 
fifth  of  their  number  shall  go  out  *  f  office  every  j'ear,  and  thereafter  the  trus- 
tees shall  hold  office  for  five  years.  A  majority  of  the  trustees  shall  constitute  a 
quorum  for  the  transaction  of  business,  and  the  office  of  the  coi'poration  shall 
be  at  the  college  or  seminary. 

The  trustees  shall  have  power: 

1.  To  elect,  by  ballot,  annually,  one  of  their  number  as  president  of  the  board; 

2.  Uiiou  the  death,  removal  out  of  the  state,  or  other  vacancy  in  the  office,  or 
expiration  of  the  term  of  any  trustee,  to  elect  another  in  his  place;  provided, 
that  where  there  are  graduates  of  the  institution,  such  graduates  may,  under 
such  rules  as  the  board  shall  pi'escribe,  nominate  persons  to  fill  vacancies  in 
the  board  of  trastees;  such  nomination  shall  be  considered  by  the  board,  but 
it  may  reject  an}'  or  all  such  nominations,  and  of  its  own  motion  appoint  others; 

3.  To  elect  additional  trustees;  pi-ovided,  the  whole  number  elected  shall 
never  exceed  fifteen  at  any  one  time ; 

4.  To  declare  vacant  the  seat  of  any  trustee  who  shall  absent  himself  from 
eight  succeeding  meetings  of  the  board; 

5.  To  receive  and  hold,  by  purchase,  gift,  devise,  bequest,  or  grant,  real  or 
personal  property  for  educational  purposes  connected  with  the  corporation,  or 
for  the  benefit  of  the  institution; 

G.  To  sell,  mortgage,  lease,  and  otherwise  use  and  dispose  of  the  property  of 
the  corporation  in  such  manner  as  they  shall  deem  most  conducive  to  the  pros- 
peritj'  of  the  corporation ; 

7.  To  direct  and  prescribe  the  course  of  study  and  discipline  to  be  observed 
in  the  college  or  seminary; 

8.  To  appoint  a  president  of  the  college  or  seminary,  who  shall  hold  his  office 
during  the  pleasure  of  the  trustees; 

9.  To  appoint  such  professors,  tutors,  and  other  officers  as  they  shall  deem 
necessary,  who  shall  hold  their  offices  during  the  pleasure  of  the  trustees; 

10.  To  grant  such  literary  honors  as  are  usually  granted  by  any  university, 
college,  or  seminary  of  learning  in  the  United  States,  and  in  testimony  thereof 
to  give  suitable  diplomas  under  their  seal,  and  the  signature  of  such  officers  of 
the  cor|ioration  and  the  institution  as  they  shall  deem  expedient; 

11.  To  fix  salaries  of  the  president,  professors,  and  other  officers  and  em- 
ployees of  the  college  or  seminary; 

12.  To  make  all  by-laws  and  ordinances  necessary  and  proper  to  carry  into 
effect  the  preceding  powers  and  necessary  to  advance  the  interests  of  tlio  college 
or  seminary;  provided,  that  no  by-laws  or  ordinance  shall  conflict  with  the  con- 
stitution or  laws  of  the  United  States  or  of  this  state. 

651.  Trnnifcr  of  property  from  exisling  to  new  colleges. 

Sec.  C51.  Any  educational  corporation,  or  body  claiming  to  be  such,  now 
existing,  may,  by  a  unanimous  vote  of  those  of  its  trustees  present  at  a  special 
meeting  called  for  that  purpose,  and  of  which  due  notice  shall  be  given  to  each 
trustee,  convey  all  its  property,  rights,  and  franchises  to  a  corporation  organ- 
ized under  this  title.  The  fact  that  duo  notice  of  the  meeting  was  given  to  each 
trustee  shall  be  conclusively  proven  by  the  entries  in  the  minutes  of  the  corpo- 
ration or  body  making  the  conveyance.  Said  minutes  shall  be  certified  to  bo 
correct  by  the  president  and  secretary. 

See  note  at  bead  of  this  title. 

160 


11.  To  fix  salaries  of  the  president,  professors,  and  other 
►fflcers   and   employees   of   the   college   or   seminary. 

12.  To  make  all  by-laws  and  ordinances  necessary  and 
•roper  to  carry  into  effect  the  preceding  powers  and  neces- 
ary  to  advance  the  interests  of  the  college  or  seminary; 
irovided.  that  no  by-laws  or  ordinances  shall  conflict  with 
he  constitution  or  laws  of  the  United  States,  or  of  this  state. 
In  effect  60  days  from  and  after  March  20,  1909.  Stats.  1909, 
;hap.  357.)  Civ.   Code,   1909. 


650.  Board  of  Trustees;  Powers  of.  Unless  otherwise 
provided  in  the  articles  of  incorporation  the  board  of  trus- 
tees, sliall,  as  soon  as  organized,  so  classify  themselves  that 
one-flfth  of  their  number  shall  go  out  of  office  every  year, 
and  thereafter  the  trustees  shall  hold  office  for  five  years. 
A  majority  of  the  trustees  shall  constitute  a  Quorum  for  the 
transaction  of  business,  and  the  office  of  the  corporation 
shall  be  at  the  college  or  seminary. 

The  trustees  shall  have  power: 

1.  To  elect,  by  ballot,  annually  one  of  their  number  as 
president  of  the  board. 

2.  Upon  the  death,  removal  out  of  the  state,  or  other  va- 
cancy in  the  office,  or  expiration  of  the  term  of  any  ti'ustce, 
to  elect  another  in  his  place;  provided,  that  where  there  ai-e 
graduates  of  the  institution,  such  graduates  may,  under  such 
rules  as  the  board  shall  prescribe,  nominate  persons  to  fill 
vacancies  in  the  board  of  trustees.  Such  nominations  shall 
be  considered  by  the  board,  but  it  may  reject  any  or  all  such 
nominations,    and   of   its    own    motion    appoint   others. 

3.  To  elect  additional  trustees;  provided,  the  whole  numl)er 
elected  shall  never  exceed  [twenty-five]  at  any  one  time. 

4.  To  declare  vacant  the  seat  of  any  trustee  who  shall 
absent  himself  from  eight  succeeding  meetings  of  the  board. 

5.  To  receive  and  liold,  by  purchase,  gift,  devise,  bequest, 
or  grant,  real  or  personal  property  for  educational  purposes 
connected  with  the  corporation,  or  for  the  benefit  of  the  in- 
stitution. 

6.  To  sell,  mortgage,  lease  and  otherwise  use  and  dispose 
of  the  property  of  the  corporation  in  such  manner  as  they 
shall  deem  most  conducive  to  the  prosperity  of  the  corpora- 
tion. 

7.  To  direct  and  prescribe  the  course  of  study  and  dis- 
cipline to  be  observed  in  the  college  or  seminary. 

8.  To  appoint  a  president  of  the  college  or  seminary,  who 
shall   hold   his  office   during   the   pleasure   of  the   trustees. 

[9.  To  appoint  such  professors,  tutors,  and  other  offieei'S 
as  they  shall  deem  necessary,  who  shall  hold  their  offices 
during  the  pleasure  of  the  trustees.] 

[10.]  To  grant  such  literary  honors  as  are  usually  granted 
by  any  university,  college,  or  seminary  of  learning  in  the 
United  States  and  in  testimony  thereof  to  give  suitable  di- 
plomas under  their  seal,  and  the  signature  of  such  officers 
of  the  corporation  and  the  institution  as  they  shall  deem  e.x- 
pedient. 


653.  Societies  and  Organizations  Authorized  to  Consoli- 
date; Trustees;  Annual  Reports.  Whenever  any  lienevolent, 
religious  or  fraternal  organization  or  sofiet\-,  iitiving  a  grand 
lodge,  assembly,  conference  or  otlier  legislative  or  representa- 
tive head  in  the  state  of  California,  having  two  or  more  col- 
leges or  institutions  of  higher  education  under  its  patronage, 
shall,  for  the  purpose  of  greater  efliciency  and  sinipUcity  in 
the  administration  of  its  educational  interests,  desire  to  con- 
solidate such  institutions  under  one  management,  such  or- 
ganization or  society  shall  be  and  is  [hereby]  authorized  to 
consolidate  such  institutions  under  one  management  by 
complying  with  the  following  provisions: 

Such  grand  lodge,  assembly,  conference  or  other  legislative 
or  representative  head  having  authorized  a  consolidation  of 
its  institutions,  a  new  corporation  shall  be  formed.  The 
board  of  trustees  of  the  new  corporation  shall  at  first  consist 
of  the  persons  constituting  the  boards  of  trustees  of  the 
several  institutions,  respectively  thus  [consolidating],  and 
others;  provided  the  number  of  trustees  shall  not  exceed 
forty-five.  The  board  of  trustees  shall  be  so  classified  that 
the  term  of  office  of  one  third  of  its  number  shall  expire  each 
year;  the  successors  of  such  trustees,  as  their  terms  expire, 
shall  be  elected  by  such  grand  lodge,  assembly,  conference 
or  other  legislative  or  representative  head,  at  its  annual 
meeting. 

The  said  board  of  trustees  shall  report  annually  to  the 
grand  lodge  conference  assembly  or  other  legislative  or  rep- 
resentative head  controlling  it.  the  condition  of  affairs  of  such 
corporation,  and  the  amount  and  manner  of  its  receipts  and 
expenditures. 

[After  the  two  or  more  colleges  or  institutions  of  b.igher 
education  under  the  patronage  of  any  benevolent,  religious 
or  fraternal  organization  or  society,  having  a  grand  lodge, 
assembly,  conference  or  other  legislative  or  representative 
head  in  the  state  of  California  shall  have  become  consolidated 
as  hereinbefore  directed  or  specified,  the  board  of  trustees  of 
the  new  corporation,  consisting  at  first  of  the  persons  con- 
stituting the  boards  of  trustees  of  the  several  institutions,  re- 
spectively thus  consolidated,  may  be  reduced  in  number  after 
said  board  of  trustees  shall  have  transacted  the  business  of 
said  corporation  for  a  period  of  five  years  after  such  con- 
solidation. Said  number  shall  be  reduced  by  the  grand  lodge, 
assembly,  conference  or  other  legislative  or  representative 
head  of  said  colleges  or  institutions  of  higher  education   in 


the  following'  maniiL-r,  viz:  At  any  annual  session  of  such 
grand  lodge,  assembly,  conference  or  other  legislative  or  rep- 
resentative head,  there  shall  be  dropped  from  the  number 
of  trustees  to  be  elected  at  that  session  of  such  grand  lodge, 
assembly,  conference  or  other  legislative  or  representative 
head  such  a,  number  of  trupte-^s  as  those  present  at  such  ses- 
sion shall  determine,  provided  however,  that  at  no  time  shall 
the  number  of  trustees  composing  such  board  be  less  than 
fifteen.]  (In  effect  60  days  from  and  after  March  15,  1909. 
Stats.  1909,  Chap.  253.)  Civ.  Code,  1909. 


TITLE    XXI     (New). 

(In  effect  60  days  from  and  after  February   12,   1909.     Stats. 
1909,   Chap.   2(,;.) 

Non-Profit      Co-Operative      Agricultural,       Viticultural       and 
Horticultural  Associations. 

Section  653m.  Formation   and   Purposes  of. 

653n.  Membership. 

6530.  Articles  of  Incorporation. 

653p.  By-Laws. 

653q.  Powers    of    Association. 

653r.  Amendment  of  Articles   of   Incorporation, 

653s.  Quo  Warranto. 

653m  (new).  Formation  and  Purposes  of.  Three  or  more 
persons  engaged  in  tlie  production,  preserving,  drying,  pack- 
ing, shipping,  or  marketing  of  agricultural,  viticultural  or  hor- 
ticultural products,  or  all  of  them,  may  form  a  non-profit 
co-operative  association  under  the  provisions  of  this  title,  to 
carry  on  said  business,  and  such  association  shall  have,  and 
may  exercise,  the  powers  autliorized  by  this  title,  and  the 
powers  necessarily  incidental  thereto,  and  all  other  powers 
granted  to  private  corporations  by  tho  laws  of  this  state,  ex- 
cept such  powers  as  are  inconsistent  Vv'ith  those  granted  by 
this   title. 

653n  (new).     Membership.     Such  association  shall  not  have 
la  capital  stock,   and  its  business  sliall  not  be  carried  on  for 
I  profit.     Any   person   or   any   number   of   persons,    in   addition 
I  to  the  original  incorporators,   may  become  members  of  such 
I  association,   upon  such   terms  and  conditions  as   to  member- 
ship,  and  subject  to  such   rules  and  regulations  as  to   their, 
and   each   of   their,   contract  and   other   rights   and   liabilities 
between   it    and    the    member,    as    the    said   association    shall 
provide  in   its  by-laws.     The  association   shall  issue  a  cer- 
tificate of  membership  to  each  member,  but  the  said  mem- 
bership, or  the  said  certificate  thereof,  shall  not  be  assigned 
by    a    member    to    any    other    person,    nor    shall    the    assigns 
thereof  be   entitled  to   membership   in   the  association,    or   to 
any   property   rights   or   interest   therein.      Nor   shall    a   pur- 
chaser at  execution  sale,  or  any  other  person  who  may  sue- 


ceed,  by  operation  of  law  or  otherwise  to  the  property  in- 
terests of  a  member,  be  entitled  to  membership  or  become 
a  member  of  the  association  by  virtue  of  such  transfer.  The 
board  of  directors  may,  however,  by  motion  duly  adopted  by 
it,  consent  to  such  assignment  or  transfer  and  to  the  accept- 
ance of  the  assignee  or  transferee  as  a  member  of  the  asso- 
ciation, but  the  association  shall  have  the  right,  by  its  by- 
laws, to  provide  for  or  against  the  transfer  of  membership 
and  for  or  against  the  assignment  of  membership  certificates, 
and  also  the  terms  and  conditions  upon  which  any  such  trans- 
fer or  assignment  shall  be   allowed. 

6530  (new).  Articles  of  Incorporation.  Each  association 
formed  under  this  title  must  prepare  and  file  articles  of  in- 
corporation   setting   forth: 

1.  The   name  of  the   association. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  will  be  transacted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first 
year  and  until  their  successors  shall  have  been  elected,  and 
shall  have  accepted  office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall  set  forth  a  general  rule  or  rules 
applicable  to  all  members  by  which  the  voting  power  and  the 
property  rights  and  interests,  respectively,  of  each  member 
may  and  shall  be  determined  and  fixed,  but  the  association 
shall  have  power  to  admit  new  members  who  shall  be  entitled 
to  vote  and  to  share  in  the  property  of  the  association  with 
the  old  members,  in  accordance  with  such  general  rule.  This 
provision  of  the  articles  of  incorporation  shall  not  be  altered, 
amended,  or  repealed  except  by  the  unanimous  written  con- 
sent or  the  vote  of  all  of  the  members. 

7.  Said  articles  must  be  subscribed  by  the  original  members 
and  acknowledged  by  one  of  them  before  an  officer  authorized 
by  the  law  of  this  state,  to  take  and  certify  acknowledgments 
of  deeds  of  conveyance,  and  shall  be  filed  in  accordance  with 
the  provisions  of  section  296  of  this  code,  and  when  so  filed 
the  said  articles  of  incorporation  or  certified  copies  thereof 
shall  be  received  in  all  the  courts  of  this  state,  and  other 
places,  as  prima  facie  evidence  of  the  facts  contained  therein. 


653p  (new).  By-Laws.  Each  association  incorporated 
luiclcr  this  title  niust,  within  thirty  flays  after  its  incorpora- 
tion, adopt  a  code  of  by-laws  for  its  governnient  and  man- 
agement not  inconsistent  with  the  provisions  of  this  title. 
A  majority  vote  of  tiie  members  or  the  written  assent  of 
members  representing  a  majority  of  the  votes,  is  necessary 
to  adopt  such  by-laws.  The  provisions  of  sections  303  and 
30-1  of  this  code,  whiclr  are  not  inconsistent  witli  the  provi- 
t-ions  of  this  title,  shall  apply  to  the  by-laws  of  the  corpora- 
tions provided  for  in  this  title.  Each  association  may  al.so, 
l^y  its  by-laws  adopted  as  aforesaid,  provide  for  tlie  follow- 
ing matters:  .  .       >         L 

1.  The  manner  of  removal  of  any  one  or  more'  of  its  direc- 
tors and  for  filling  any  and  all  vacancies  in  tire  board  of 
directors.  . 

2.  The  number  of  directors  and  the  number  of  membcr.s  or 
\'otes  thereof  constituting  a  quorum. 

3.  The  conditions  upon  which  and  the  time  when  member- 
ship of  any  member  in  the  association  shall  cease;  the  mode, 
manner  and  effect  of  expulsion  of  a  member,  subject  to  the 
light  of  the. expelled  member  to  have  the  board  of  directors 
ciiuitably  appraise  his  pi'operty  interests  in  tiie  association 
and  to  fix  the  amount  thereof  in  money,  and  to  have  the 
inom-y  paid  to  him  within  sixty  days  after  such  expulsion. 

4.  'I'he  amount  of  membership  fee,  if  any,  and  the"  amount 
whiih  each  member  shall  be  required  to  pay  annually,  or  from 
time  to  time,  if  at  all,  to  carry  on  the  business  of  the  associa- 
tion, and  also  the  compensation,  if  any,  to  be  paid  by  each 
member  for  any  services  rendered  by  the  association  to  him, 
and  the  time  of  payment  and  the  manner  of  collecting  .the 
same,  and  for  forfeiture  of  the  interest  of  the  member  in  the 
association  for  non-payment  of  the  same. 

.5.  The  number  and  qualifications  of  members  of  the  associa- 
lion,  and  the  conditions  precedent  to  memoership  and  the 
method,  time  and  manner  of  permitting  members  to  with- 
draw, and  providing  for  the  assignment  and  transfer  of  the 
interest  of  members,  and  the  manner  of  determining  the 
value  of  such  interest  and  providing  for  the  purcliase  of  such 
interest  by  the  association  upon  the  death,  withdrawal  or 
expulsion  of  a  member  or  upon  the  forfeiture  of  liis  member- 
ship,  at   the  option   of   the  association. 

6.  Permitting  members,  to  vote  by  tlreir  proxies,  and  de- 
termining   the    conditions,    manner,    form   and    effect    thereof. 

653q  (new).     Po\vers  of  Association.    EaclV  association  in- 


corporated  under  this  title  shall  have  the  powers  granted 
by  the  provisions  of  this  code  and  other  laws  of  California 
relating  to  private  corporations,  and  shall  also  have  the 
following  powers: 

1.  To  appoint  such  agents  and  officers  as  its  business  may 
require,  and  such  appointed  agents  may  be  either  persons 
or  corporations;  to  admit  persons  to  membership  in  the 
association,  and  to  expel  any  member  pursuant  to  the  pro- 
visions of  its  by-laws;  to  forfeit  the  membership  of  any 
member  for  violation  of  any  agreement  between  him  and  the 
association,  or  for  his  violation  of  its  by-laws. 

2.  To  purchase  or  otherwise  acquire,  hold,  own,  sell  and 
otherwise  dispose  of  any  and  every  kind  or  kinds  of  real 
and  personal  property  necessary  to  carry  on  its  business,  and 
to  acquire  by  purchase  or  otheiwise  the  interest  of  any 
member  in  the  property  of  the  association. 

3.  Upon  the  written  assent  or  by  a  vote  of  members  repre- 
senting two-thirds  of  the  total  votes  of  all  members  to  co- 
operate with  any  other  co-operative  corporation  or  cor- 
porations for  the  co-operative  and  more  economical  carrying 
on  of  their  respective  businesses  by  consolidation  as  provided 
in  section  653i  of  this  code,  whereupon  the  effect  of  such 
consolidation  shall  be  the  same  as  declared  in  said  section; 
or  upon  resolution,  adopted  by  its  board  of  directors,  to 
enter  into  all  necessary  and  proper  contracts  and  agree- 
ments, and  to  make  all  necessary  and  proper  stipulations  and 
arrangements  with  any  other  co-operative  corporation  or 
corporations  for  the  co-operative  and  more  economical  carry- 
ing on  of  its  business,  or  any  part  or  parts  thereof;  or  any 
two  or  more  co-operative  corporations  organized  imder  this 
title,  upon  resolutions,  adopted  by  their  respective  board 
of  directors,  may,  for  the  purpose  of  more  economically 
carrying  on  their  respective  businesses,  by  agreement  be- 
tween them,  unite  in  employing  and  using,  or  several  asso- 
ciations may  separately  employ  and  use,  the  same  methods, 
means  and  agencies,  for  carrying  on  and  conducting  their 
respective    businesses. 

4.  Any  association  formed  or  consolidated  under  this  title 
may  be  dissolved  and  its  affairs  wound  up  voluntarily  by  the 
written  request  of  members  representing  two-thirds  of  the 
total  votes,  in  the  manner  and  with  the  effect  provided  in 
section  653j  of  this  code,  except  that  the  moneys  remaining 
after  liquidation  shall  be  divided  among  the  members  in  pro- 
portion  to  their  property  interest^   therein. 


I 


653r     (new).      Amendment    of    Articles    of    Incorporation. 

Any  corporation,  whether  stock  or  membership.  Iieretofore 
incorporated  under  the  laws  of  this  state  for  the  purpose  of 
engaging  in  and  carrying  on  the  business  specified  in  section 
653m  of  this  title,  the  stockholders  or  members  of  whicli 
would  be  entitled  to  incorporate  under  the  provisions  of  this 
title,  may,  by  the  unanimous  written  assent  or  vote  of  all 
the  stockholders  or  members,  amend  its  articles  of  incor- 
poration to  conform  to  the  provisions  of  this  title  in  the 
manner  and  with  the  effect  provided  in  section  362  of  the 
Civil  Code,  and  from  the  time  of  filing  the  amended  articles, 
such  corporation  shall  have  the  same  powers  as  if  it  had 
originally  incorporated  under  the  provisions  of  this  title; 
provided,  however,  that  the  debts,  obligations,  and  other 
liabilities  against  such  corporation  or  against  the  members 
or  the  stockholders  thereof,  existing  at  the  time  of  such 
amendment,  shall  not  be  discharged  or  their  collection  or 
enforcement  otherwise  impaired;  and  provided  further  that 
the  respective  property  interests  of  the  several  stockholders 
by  virtue  of  their  ownership  of  shares  of  stock  therein,  or 
the  several  members  by  virtue  of  their  membership  therein, 
and  also  the  voting  power  of  each  of  them,  shall  be  deter- 
mined and  fixed  by  the  amended  articles  of  incorporation  in 
accordance  with  the  provisions  of  subdivision  6  of  section 
653o,  but  which  rights  shall  be  subject  to  the  right  of  tha 
association  to  admit  new  members. 

653s  (new).  Quo  Warranto.  The  riglit  of  an  association 
claiming  to  be  organized  and  incorporated  and  carrying  on 
its  business  under  this  title,  to  do  and  to  continue  its  busi- 
ness, may  be  inquired  into  by  quo  warranto  at  the  suit  of 
the  attorney-general,  but  not  otherwise.  Civ.  Code,  1909. 


II. 


such 
rep- 
iiber 
lose. 


Sal 

n- 

o- 
be 


JUahnii 
801,  po.st,  s\ 

656.    Wit 
Sec.  G5i 

only  wber 

and  beld  ii 
Animals  fi 

bee  belong  U. 

Civ.  C<! 


VII. 


such 
r  rep- 
amber 
lodge. 


ial 

,ch 
m- 
,ch 

)0- 

be 


TITLE 

XXII 

(N 

ew). 

'S 

from 

and    after 

April 

13, 

1909. 

Stats. 

1909. 

Chap 

52 

4.) 

Non-Profit    Co-Operative    Corporations. 

Section  653t.       Formation    and    Purposes  of. 
653u.      Membership. 
653v.     Articles    of    Incorporation. 
65oW.     By-Laws. 
653x.     Powers  of  Corporation. 
653y.     Amendment   of    articles    of    Incorporation. 
G53z.     Quo    warranto. 
653za.   Particular     Corporations. 
653zb.   Voting. 

753t.  Formation  and  Purposes  of.  Non-profit  co-op- 
itive  corporations  may  be  formed  by  the  voluntary  asso- 
ilion  of  any  three  or  more  persons  in  the  manner  pre- 
ibed  in  this  title.  A  majority  of  such  persons  must  be 
idents  of  this  state,  and  such  corporation  shall  have  and 
.'  exercise  the  powers  authorized  by  this  title,  and  the 
.  e  s  necessarily  incident  thereto,  and  also  all  other 
"  ■  s  granted  to  private  corporations  by  the  laws  of  this 
excepting-  such  pow-ers  as  are  inconsistent  with  those 
red   by  this   title. 

■3u.  Membership.  Such  corporation  shall  not  have  a 
tal  stock,  and  its  business  shall  not  be  carried  on  for 
•fit.  Any  person  or  any  number  of  persons  including  and 
addition  to  the  original  incorporators,  may  become  mem- 
•s  of  such  corporation  upon  such  terms  and  conditions  as 
membership,  and  subject  to  such  rules  and  regulations 
to  their,  and  each  of  their,  contract  and  other  rights  and 
bilities  between  it  and  the  member,  as  the  said  cor- 
ration  shall  prescribe  in  its  by-laws.  The  corporation 
ill  issue  a  certificate  of  membership  to  each  member,  but 
J  said  membership,  or  the  said  certificate  thereof,  shall 
t,  except  as  herein  provided,  be  assigned  by  a  member 
any  other  person,  nor  shall  the  assigns  thereof  be  entitled 
nembership   in  the  corporation  or  to  any  property  rights 


XVII. 


)f  such 
or  rep- 
iiimber 
>  ludse. 


or  interest  therein,   nor  shall  a  purchaser  at  execution   sale, 
or  any  other  person   who  may  succeed,   by  operation   of  law 
or    otherwise,    to    the    property    interests    of    a    member,    b« 
entitled    to    membership,    or    become    a    member   of    the    cor- 
poration by  virtue  of  such  transfer.     The  board  of  director* 
may,    however,    by    motion    duly    adopted    by    it,    consent    to 
such   assignment  or   transfer,    and    to   the   acceptance   of   th« 
assignee  or  transferee  as  a  member  of  the  corporation.     Tho 
corporation  shall  also  have  the  right,  by  its  by-laws,   to  pro- 1 
vide   for   or   against   the   transfer   of   membership   and   for  drj 
against  the  assignment  of  membership  certificates,   and  alsoj 
tlie    terms   and   conditions   upon    which   any   such   transfer 
assi,gnment   shall   be  allowed. 

653v.  Articles  of  Incorporation.  Each  corporation  formed 
under  this  title  must  prepare  and  file  articles  of  incorpora- 
tion  in   writing  setting   forth: 

1.  The  name   of   the   corporation. 

2.  The  purpose  for  which   It  is  formed. 

8.  The  place  where  its  principal  business  will  b»  tram 
acted. 

4.  The  term  for  which  it  Is  to  exist,  not  exceeding  fifty 
years. 

6.  The  number  of  directors  thereof,  which  must  not  b« 
less  than  three  and  which  may  be  any  number  in  excess 
thereof,  and  the  names  and  lesidences  of  those  selected  foi 
the  first  year  and  until  their  successors  shall  have  b«en 
elected,  and  shall  have  accepted  office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
Interest  of  each  member  shall  be  equal  or  unequal,  and  11 
unequal  the  articles  shall  set  forth  a  general  rule  or  rulei 
applicable  to  all  members  by  which  the  voting  power  and 
the  property  rights  and  Interests,  respectively,  of  each  mem- 
ber may  and  shall  be  determined  and  fixed,  but  the  cor 
poratlon  shall  have  power  to  admit  new  members  who  shal 
be  entitled  to  vote  and  to  share  in  the  property  of  the  cor- 
poration with  the  old  members,  in  accordance  with  sucl 
general  rule. 

7.  Said  articles  of  Incorporation  shall  be  subscribed  In 
three  or  more  of  the  original  members,  a  majority  of  whon 
must  be  residents  of  this  state,  and  acknowledged  by  eaclj 
before  some  officer  authorized  to  take  and  certify  acknowtj 
edgraents  of  conveyances  of  real  property,  and  shall  bj 
filed  in  all  respects  In  accordance  with  the  provisions  0 
section    296    of    this    code,    and    thereupon    the    secretary  9 


etatp  shall  issue  to  the  corporation,  over  the  great  seal 
of  the  state,  a  certificate  that  a  copy  of  the  articles  con- 
taining the  required  statement  of  facts  has  been  filed  in  hl« 
office,  and  thereupon  the  persons  signing  the  articles  and 
their  associates   and   successors   shall   be   a  body   politic   and 

I  corporate  by  the  name  stated  in  the  certificate.  When  so 
filed,  the  said  articles  of  Incorporation  or  certified  copiea 
thereof  shall  be  received  In  all  the  courts  of  this  state,  and 
other  places,  as  prima  facie  evidence  of  the  facts  contained 

. therein. 

653w.  By-Laws.  Each  corporation  Incorporated  under  thi» 
title  must,  within  one  month  after  filing  articles  of  incor- 
poration, adopt  a  code  of  by-laws  for  its  government  and 
management  not  Inconsistent  with  tlie  provisions  of  this 
title,     A   majority  vote   of   the   members   or   the   written   as- 

'  sent  of  members  representing  a  majority  of  the  votes  is 
necessary  to  adopt  such  by-laws.  The  provisions  of  section* 
SOS  and  304  of  this  code,  wMiich  are  not  inconsistent  with 
the  provisions  of  this  title,  shall  apply  to  the  by-laws  of 
the  corporation  provided  for  in  this  title.  Each  corporation 
organized  hereunder  may  also,  bj-  its  by-laws  adopted  »■ 
aforesaid,    provide    for   the   following    matters: 

1.  The  manner  of  removal  of  any  one  or  more  of  It» 
directors   and   of  filling   any   and   all   vacancies   in    tho   board 

'  of  directors. 

2.  The  conditions  upon  which  ond  the  time  when  member- 
■hip  of  any  member  in  the  corporation  shall  cea.«:e;  th« 
mode,  manner  and  effect  of  expulsion  of  a  member,  subject 
to  the  right  of  the  expelled  member  to  have  the  board  of 
directors  eauitably  appraise  his  property  interests  In  th« 
corporation  and  to  fix  the  amount  tiiereof  In  money,  and 
to  have  the  money  paid  to  him  within  sixty  davs  after  such 
expulsion. 

Z.  The  amount  of  member-ship  fee.  If  any,  and  the  amount 
which  each  member  shall  be  ref4Uired  to  pay  annually,  or 
from  time  to  time.  If  at  all,  to  carry  on  the  business  of  th« 
'corporation,  and  also  the  compensation,  if  any,  to  be  paid 
by  each  member  for  any  services  rendered  by  the  corpora- 
tion to  him,  and  the  time  of  payment  and  the  manner  of 
collecting  the  same,  and  may  provide  for  forfpiture  of  th« 
Interest  of  the  member  in  the  corporation  for  non-payment 
of  the   same. 

4.  The  number  and  qualifications  of  members  of  the  cor- 
poration   and    the    conditions    precedent    to    membership    and 


XVII. 


)f  such 
or  rep- 
lumber 
I  lod.are. 


the  method,  time  and  manner  of  permitting  members  to 
■withdraw,  and  providing  for  the  assignment  and  transfer  of 
the  interest  of  members,  and  the  manner  of  determining  the 
value  of  such  interest  and  providing  for  tlie  purchase  of 
»uch  interest  by  the  corporation  upon  the  death,  withdrawal 
or  expulsion  of  a  member  or  upon  the  forfeiture  of  his  mem- 
bership,  at   the  option  of  the   corporation. 

653x.  Powers  of  Corporation.  Each  corporation  incor- 
porated under  this  title  shall  have  the  powers  granted  by 
the  provisions  of  this  code  and  other  laws  of  California, 
relating  to  private  corporations,  which  are  not  inconsistent 
with  those  granted  by  this  title,  and  shall  also  have  the 
following  powers: 

1.  To  appoint  such  agents  and  officers  as  Its  business  may 
require,  and  such  appointed  agents  maj-  be  either  persons 
or  corporations;  to  admit  persons  and  corporations  to  mem- 
bership in  the  corporation,  and  to  expel  any  member  pur- 
suant to  the  provisions  of  its  by-laws;  to  forfeit  the  mem- 
bership of  any  member  for  violation  of  any  agreement  be- 
tween him  and  the  corporation  or  for  his  violation  of  its 
by-laws. 

2.  To  purchase,  lease  or  otherwise  acciuire.  hold,  own  anil 
enjoy,  to  sell,  lease,  mortgage  and  otherwise  encumber  anO 
dispose  of  any  and  all  and  every  kind  or  kinds  of  real  an^; 
personal  property,  also  to  carry  on  any  and  all  operation.- 
necessary  or  convenient  in  connection  with  the  transactior 
of  any  of   its   business. 

S.  Upon  the  written  assent  of  two- thirds  of  all  the  mem- 
bers or  by  a  vote  of  members  representing  two-thirds  o 
the  total  votes  of  all  members  of  each  of  two  or  more  sucl 
non-profit  co-operative  corporations  to  co-operate  with  eacl 
other  for  the  more  economical  carrying  on  of  their  respectiv< 
businesses  by  consolidation  as  provided  in  section  6.58i  o 
this  code,  such  consolidation  shall  be  effected,  and  there 
upon  the  effect  of  such  consolidation  shall  be  the  same  a 
declared  in  said  section.  Any  such  corporation  upon  reso' 
lution,  adopted  by  its  board  of  directors,  shall  have  th 
power  to  enter  into  contracts  and  agreements,  and  to  mak 
stipulations  and  arrangements  with  any  other  corporatic 
or  corporations  for  the  co-operative  and  more  economics 
carrying  on  of  its  business,  or  any  part  or  parts  thereof 
or  any  two  or  more  co-operative  corporations  organized  unde 
this  title,  upon  resolutions  adopted  by  their  respectiv 
boards  of  directors,  may,  for  the  purpose  of  more  economical 


special 
,o  each 
organ- 
o  each 
corpo- 
to  bo 


ly  carrying  on  their  respective  businesses,  by  agreement, 
unite  in  adopting,  employing  and  using,  or  several  such  cor- 
porations may  separately  adopt,  employ  and  use  the  same 
methods,  policy,  means,  agents,  agencies  and  terms  of 
marketing  for  carrying  on  and  conducting  their  respective 
businesses. 

4.  Any  corporation  formed  or  consolidated  under  this  title 
may  be  dissolved,  and  its  affairs  wound  up  voluntarily  bv 
the  written  consent  of  members  representing  two-thirds  of 
the  total  votes,  in  the  manner  and  with  the  effect  provided  in 
section  653j  of  this  code,  except  that  any  property  remaining 
after  liquidation  shall  be  divided  among  the  members  in 
proportion    to    their    respective    property    interests    therein. 

653y.  Amendment  of  Articles  of  Incorporation.  Any  such 
corporation  may  amend  its  articles  of  incorporation  in  any 
manner  not  inconsistent  with  the  provisions  of  this  title, 
in  the  manner  provided  for  by  section  362  of  the  Civil  Code 
of    this    state. 

653z.  Quo  Warranto.  The  right  of  a  corporation  claim- 
ing to  be  organized  and  incorporated  and  carrying  on  its 
business  under  this  title,  to  do  and  to  continue  its  buslne-ss, 
may  be  inquired  Into  by  quo  warranto  proceeding  at  the 
suit  of  the   attorney-general,    but  not   otherwise. 

653za.  Particular  Corporations.  This  title  Is  not  ap- 
plicable to  railroads,  telegraph,  telephone,  banking,  insur- 
ance, building  and  loan,  or  any  other  corporation,  unless  the 
special  provisions  of  this  code  applicable  thereto  are  com- 
plied   with. 

653zb.  Voting.  In  the  event  the  by-laws  shall  provide 
for  unequal  voting  power,  or  unequal  property  rights  of  the 
several  members,  or  both,  the  provisions  of  this  title  with 
reference  to  a  majority,  a  two-thirds,  or  other  vote  of  the 
members,  shall  not  apply,  and  in  lieu  thereof,  there  shall 
be  substituted  a  majority,  or  a  two-thirds  of  the  votes  of 
the  interests  represented  by  the  several  members,  or  other- 
wise as   th«  case  may  be.  Civ.   Code,    1909. 


I 


L 


[I. 


uch 
rep- 
iber 


Ids 


)ecial 
each 

ti-gan- 
each 

orpo- 

Lo  be 


t)iv.  n,  Paet  I,  Title  I.]  NATURE  OF  PROPEKTY.  §S  654-6» 


DIVISION  SECOND. 

PiET  I.     Property  in  General ^54 

II.  Real  or  Immovable  Property '''55 

III.  Personal  or  Movable  Property 946 

IV.  Acquisition  of  Property -,,...  lOUQ 

PABT    I. 

PROPERTY  IN  GENERAL, 

Title  I.    Kature  of  Property 654 

II.     Ownership CC9 

III.  General  Definitions , 748 

TITLE  I.  1 

NATURE  OF  PROPERTY. 

654.  Property,  what. 

Sec.  G54.     The  ownersliip  of  a  thing  is  the  right  of  one  or  inom  perilous  tOr 
possess  and  use  it  to  the  exclusion  of  others.     lu  this  code,  the  thing  ol  which 
there  may  be  ownership  is  called  property. 

Property. — Tlie  above  definition  includes  y.iO.T/p.sora,  18Id.  11.  It  includes  any  usufruc 
every  species  <,f  estate,  real  and  personal:  ii/c-  tuary  interest,  whether  leasehold  or  mere  ri  -hi 
Keon  V.  Bi^bre,  9  Cal.  142;  Crandall  v.  Blen,  of  pos<;ession:  S/atev.  Moore,  12  Id.  53.  As^tt 
1.3  Id.  15;  Davis  v.  Mitchell,  30  Id.  SI.  It  is  the  meaning  of  "property  "  for  the  purposes  ol 
to  1)6  noted  that  the  word  "property"  is  uot  taxation,  see  Pol.  Code,  sec.  .SG17,  and  note. 
here  used  in  its  appi-opriate  meaning  as  an  R32.I  property:  Sec  sec.  608,  and  note, 
interest  in  a  thing,  and  not  the  thing  itself.  Personal  property:  See  sees.  CG3,  953^ 
•'I'roperty"  as  applied  to  lands  embraces  all     et  seq. 

titles,  legal  or  etpii  table,  perfect  or  imperfect.        Tranchisea  as  property:  See  sec.  388,  a  n^e, 
Leese  v.  tiar/:,  20  Id.  3S7;    Teschemacher  v.     and  note. 

655.  In  what  property  may  exist. 

Sec.  055.  There  may  be  ownership  of  all  inanimate  things  which  are  capable 
of  appropriation  or  of  manual  deliveiy;  of  all  domestic  animals;  of  all  obliga- 
tions; of  such  products  of  labor  or  skill,  as  the  composition  of  an  author, 
the  good-will  of  a  business,  trade-marks  and  signs;  and  of  rights  created  01 
granted  by  statute. 

In  what  property  may  ezist— The  sea,  Products  of  the  mind:  See  sees.  980,  j30s«, 

the  air,  and  the  like  cannot  be  the  subject  of  et  secj. 

ownersliip.     Every  one  may  enjoy  them,  but  Trado-marks:  See  sec.  991,  post. 

no  one  has  an  cxcfusive  riglit  in  them:  Lou  v.  Good-VT-ill:  See  sec.  993,  post. 

Law  Diet.,  tit.  Property.     With  respect  to  the  Titlo  deeds:  See  sec.  994-,  post. 

easements  of  li^dit  and  air,  and  the  diflerence  Domestic  animals,  larceny  of:   See  ITar' 

which  prevails  in  tiiis  country  from  the  views  rhxjioii  v.  Miles,   11   Kan.  480;  S.  C,  14  Am, 

eiitertaint'd  upon  the  subject  in  (Jreat  Britain,  Pep.  3.35,  and  note,  whence  it  appears  that  a 

Bee  Storty  v.  Odin,  7  Am.  Dec.  40,  and  note;  dog  may  be  the  subject  of  larceny:  See  I'eu.'U 

Mahrm  v.  Brown,  28  Id.  401,  aud  note;  see  sec.  Code,  sec.  491. 

SOI,  post,  subd.  8. 

656.  Wild  animals. 

Sec  G56.     Animals  wild  by  nature  are  the  subjects  of  ownership  while  living, 

only  when  on  the  land  of  the  person  claiming  them,  or  w^hen  tamed,  or  taken 

and  held  in  possession,  or  disabled  and  immediately  pursued. 

Animals  ferae  natixrag.— Wild  bees  in  a  bee-  tree  stands:  Ferguson  v.  Miller,  13  Am.  Dec. 
tree  belong  to  the  owner  of  the  soil  where  the    519.     Wild  geese  which  have  been  tamed  aixd 

Orv.  Code— II  i?,\ 


S§  657-660 


PROPERTY  IN  GENERAL. 


Piv.  II,  Pakt  I, 


have  straj'cd  away,  but  without  regaining  their 
natural  state,  may  be  the  subject  of  an  action 
of  trover:  Armory  v.  Flyii,  6  Id.  316.  Doves 
are  animals  ferce  naturce:  CommonweaWi  v. 
C'hace,  19  Id.  34S.  Mere  pursuit  gives  no  right 
of  property  in  wild  animals:  Piersou  v.  Post,  2 
Id.  26i.     The  above  section  requires  that  the 

657.    Heal  and  personal. 

Sec.  657.     Property  is  either: 

1.  Real  or  immovable;  or, 

2.  Personal  or  movable. 

Origiu  of  the  terms  "real"  and  "per- 
BOlial"  as  applied  to  property.  "Though  the 
term  '  real,'  as  applied  to  property  in  distinction 
from  personal,  is  now  so  familiar,  it  is  one  of 
fomewhat  recent  introduction.  While  tlie  feu- 
dal law  prevailed,  the  terms  in  use  in  its  stead 
,weF,'3  lands,  tenements,  and  hereditaments. 
These  acquired  the  epithet  of  '  real '  from  tlie 
nature  of  the  remedy  applied  by  law  for  the  re- 
.covery  of  them,  as  dlstingal&hed  Lum  that  pro- 
vided in  case  of  injuries,  contracts  broken,  and 
the  like.  In  the  one  case  the  claimant  c  de- 
mandant recovered  the  real  thing  sued  for-  -the 
.Jaud  itself — while  ordinarily  in  tlie  other  he 


animal  should  be  disabled  and  pursued.  Pos- 
session of  wdd  animals,  to  create  a  jiroperty  in 
them,  does  not  mean  actual  bodily  seizure,  but 
dominion  over  them  which  will  prevent  their 
escape:  Piyrson  v.  Post,  supra. 

Larceny  of  -wild  animals:    See  Oraer  v. 
Storms,  18  Am.  Dec.  553. 


could  only  recover  recompense  in  the  lorm  of  pe- 
cuniary damages.  The  term,  it  is  said,  as  a 
means  of  designation,  did  not  come  into  general 
use  until  after  the  feudal  system  had  lost  its 
hold,  nor  till  even  as  late  as  the  commence- 
ment of  the  seventeenth  century.  One  of  the 
earliest  cases  in  which  the  courts  applied  the  dis- 
tinctive terms  of  '  real'  and  *  personal '  to  estates 
without  any  words  of  explanation  is  said  to  have 
been  that  of  Wind  v.  Jeykl,  1  P.  Wms.  575; 
Williams  on  Real  Prop.  6,  7,  note  c;"  Bouv. 
Law  Diet.,  tit.  Real  Property.  "Immovable" 
and  "  movable,"  in  the  sense  above  used,  come 
to  us  from  the  civil  law:  Id. 


f658.   Real  property. 

Skh.  r..'^8.     Real  or  immovable  property  consists  of: 
^1.  Land? 

2.  That  which  is  affixed  to  land; 

3.  That  which  is  incidental  or  appurtenant  to  land; 

4.  That  which  is  immovable  by  law. 

Land  defined:  See  sec.  C50,  infra.  Appiirtenanccs:  See  sec  662. 

xtures:  See  sec.  660,  hij'ra,  et  seq. 

*659.   Land. 

.  Sec.  659.     Land  is  the  solid  material  of  the  earth,  whatever  may  be  the  ingre- 
dients of  which  it  is  composed,  whether  soil,  rock,  or  other  substance. 

'  660.   Fixtures. 

Sec.  6G0.     A  thing  is  deemed  to  be  affixed  to  land  when  it  is  attached  to  it  by 
roots,  as  iu  the  case  of  trees,  vines,  or  shrubs;  or  imbedded  in  it,  as  in  the  case 

'  of  walls;  or  permanently  resting  upon  it,  as  in  the  case  of  buildings;    or  per- 
manently attached  to  what  is  thus  permanent,  as  by  means  of  cement,  plaster, 

■  nails,  bolts,  or  screws. 


Fixtures. — The  code  commissioners,  in  their 
note,  Siiy:  "Sections  058,  GOO,  and  1013  of  this 
code  support  the  general  rule  that  fixtures  once 
attached  to  the  freehold  become  a  part  of  tlie 
realty."  And  in  their  note  to  section  1013, 
they  say:  "The  united  application  of  the  fol- 
lowing requisites  is  perhaps  the  safest  criterion 
of  a  fixture:  1.  Actual  annexr.tion  to  the  realty, 
or  something  appurtenant  thereto;  2.  Appro- 
■  priation  to  the  use  or  purjjose  of  that  part  of 
the  realty  with  which  it  is  connected;  3.  The 
intention  of  the  party  making  the  annexation 
to  make  the  article  a  permanent  accession  to 
the  freehold;  this  intention  heing  inferred  from 
the  nature  of  the  article  affixed,  the  relation 
and  situation  of  the  party  making  the  annex- 
ation, the  structure  and  mode  of  annexation, 
and  the  purpose  or  use  for  which  the  annexation 
has  been  made." 

In  the  draught  of  the  code  the  commissioners 


say,  in  a  note  to  .section  GGO:  "By  California 
and  Nevada  decisions  this  i-ule  has  been  a  little 
modified,  so  as  to  make  the  question  of  fixtures 
depenil  somewhat  upon  tiie  intent  or  j^urposes 
of  the  party  in  erecting  buildings  for  temporary 
use.  It  is  thouglit  best,  however,  to  preserve 
the  common-law  rules  in  terms  as  contained  iu 
tins  section." 

The  question  whether  the  articles  in  contro- 
versy are  fixtures  cannot  be  raised  when  the 
ovvuer  of  the  realty  to  which  they  are  alleged 
to  be  affixed  is  not  a  party:  Murchv.  McKoy, 
5G  Cal.  So.  The  general  rule  is,  that  what  is 
once  annexed  to  the  freehold  becomes  parcel 
thereof,  and  passes  witli  it:  Sands  v.  Pfe'iffer, 
10  Id.  238;  but  this  rule  is  subject  to  the  in- 
tention of  tlie  parties,  and  varies  with  their 
relations.  Chattels  may  be  annexed  to  the 
real  estate  and  still  retain  their  character  as 
personal  property:  Ilendy  v.  Dinker/ioJ]  57  Ui 


1&2 


Title  I.] 


NATUKE  OF  PROPERTY 


§§  661,  662 


3;  Tift  V.  Tlorton,  53  N.  Y.  3S0;  Voorhees  v. 
AlcG  miis,  48  Id.  278.  The  intention  is  an  im- 
portant circumstance  to  consiiler;  if  ib  is  the 
intention  that  the  chattels  sh;ill  not,  by  annex- 
ation, become  a  part  of  the  freehold,  as  a  gen- 
eral iiilo  they  will  not:  Same  citations.  And 
holding  tliat  the  intention  of  the  parties  is  of 
controlling  importance  in  determining  whether 
a  chattel  has  become  an  irremovable  tixture  are 
the  recent  cases:  Fratt  v.  Whitfier,  fiS  Cal.  126; 
Arnold  V.  Croicder,  81  I.l.  56;  Ilntcldngs  v. 
Mcu^ler-ton,  43  Tex.  551.  "  It  is  a  well-settled 
rule  of  la«-,"  says  Judge  McKee  in  the  case 
from  58  Cal.  126-132,  supra,  "that  parties 
theaiselves  may,  by  express  agreement,  fix 
upon  chattels  annexed  to  realty  whatever  char- 
acter they  may  have  agreed  upon.  Property 
which  the  law  regards  as  fixtures  may  be  by 
them  considered  as  personalty,  and  that  which 
in  Luv  is  known  as  personalty  they  may  regard 
as  a  fixture,"  This  rule  must  be  taken  with 
the  C|uaiification  stated  in  Ilemly  v.  Dlnh<>rhoff^ 
hi  Id.  3,  that  the  subject  or  mode  of  annex- 
ation l/e  not  such  that  the  attributes  of  personal 
property  cannot  be  predicated  of  the  thing  in 
controversy,  or  that  the  chattel  be  not  so 
merged  in  the  realty  that  its  identity  as  per- 
BonaUy  is  lost.  March  v.  McKoy,  56  Id.  85, 
presen-ed  peculiar  facts:  An  engine  leased  from 
the  plaiiitifF  was  affixed  to  the  land  of  a  third 
person;  it  was  in  tliis  condition  bought  at  a  sale 
under  a  mechanic's  lien  by  still  another  person, 
the  defendant;  as  between  the  plaintiff  and 
this  purchaser  it  was  held  that  the  engine  was 
pers;inalty,  the  owner  of  the  land  not  being  a 
party  to  tlie  proceeding,  to  say  nothing  of  the 
validity  of  the  foreclosure  proceedings. 

In  determining  whether  a  thing  is  a  fixture 
or  nob,  the  relation  of  the  parties  must  be  con- 
sidered. As  between  vendor  and  vendee,  the 
rule  for  ascertaining  what  is  a  fixture  is  always 
construed  strongly  against  the  seller:  Frail  v. 
Whdfier,  58  Cal.  120;  ^ferriU  v.  Judd,  14  Id. 
59;  McGrearij  v.  Osborne,  9  Id.  1 10.  And  see 
the  note  to  Gray  v.  JJo'dshlp,  17  Am.  Dec. 
686,  where  the  subject  is  considered  in  connec- 
tion with  the  rights  of  heirs  and  executors, 
mortgagors  and  mortgagees. 

As  between  landlord  and  tenant,  it  is  well 
Bettled  that  the  latter  may  remove  fixtures 
erected  by  Iiim  for  the  pumoses  of  trade,  orna- 
ment, or  domestic  use:  IV/iipley  v.  Dnoey,  8 
Cal.  36;  McGreary  v.  Osborne,  9  Id.  119;  Mer- 


ritt  V.  Jvdd,  14  Id.  59;  Taylor's  Land.  &  Ten., 
sees.  644  et  seq. ;  Ewell  on  Fixtures,  c.  3. 
The  view  generally  taken  is  that  the  annexa- 
tion of  a  chattel  to  the  freehold  by  the  tenant 
is  a  conditional  gift  to  the  landlord,  which  may 
be  defeated  by  its  subsequent  removal  during 
the  term,  but  which  becomes  absolute  if  the 
premises  are  surrendered  without  its  being  re- 
moved: Beers  v.  St.  John,  16  Conn.  322;  Skite 
y.  Elliott,  11  N.  H.  540;  Reynolds  v.  Shulcr, 
5  Cow.  323.  If  the  tenant,  not  having  severed 
the  fixtures,  voluntarily  quits  the  premises  at 
the  end  of  the  term,  without  any  special  agree- 
ment with  his  landlord,  the  right  to  remove  is 
lost:  Merrill  v.  Judd,  14  Cal.  59;  Doslul  v.  Mc- 
Coddon,  35  Iowa,  318;  Lounhran  v.  Ross,  45 
N.  Y.  792;  Dninway  v.  Cobb,  99  Mass.  450; 
Cromie  v.  Hoover,  40  Ind.  49.  A  new  contract 
of  lease  without  a  reservation  in  favor  of  the 
tenant  of  the  fixtures  erected  is  considered  a 
surrender  of  the  premises  and  forfeiture  of  the 
rislit  of  removal:  Merrill  v.  Judd,  14  Cal.  59. 
This  principle  was  extended,  in  Marks  v.  Ryan, 
63  Id.  107,  to  the  case  of  a  building  erected  by 
the  lessee  on  the  leased  premises,  and  which  was 
there  held  to  pass  to  the  lessor  by  a  renewal  of 
the  lease  without  any  reservation  therein  by 
the  lessee  of  his  right  to  the  structure.  See 
the  subject  of  fixtures  as  between  landlord  and 
tenant  discussed  in  llolmea  v.  Treniper,  14  Am. 
Dec.  241. 

A  tenant,  by  giving  a  name  to  a  hotel  as  a 
sign  of  the  business,  does  not  thereby  m.aka 
the  name  a  fixture  of  the  building  and  the 
property  of  the  landlord  upon  the  expir::tion  of 
the  lease:  Woo  heard  v.  Lazar,  21  Cal.  448. 

Natiire  of  annexation. — The  strictness  of 
the  earlier  ride,  requiring  a  structure  to  be  at- 
tached to  the  soil  in  order  to  be  become  a  fix- 
ture, is  now  relaxed:  Ilaices  v.  Lathrop,  33 
Cal.  49.3.  An  addition  to  a  house  is  a  fixture: 
Id.  And  see  Grciy  v.  Iloldship,  17  Am.  Dec. 
686,  for  a  note  upon  the  nature  of  the  annexa- 
tion necessary  to  make  a  fixture.  A  building 
set  upon  blocks  resting  on  the  ground  is  per- 
sonal propert}',  and  replevin  lies  to  recover  it: 
Pennybecktr  V.  McDoiujcd,  48  Cal.  100.  Like- 
wise is  a  portable  fence  made  of  posts  and 
boards,  and  resting  on  the  surface  of  the 
ground:  Id.  An  engine  fastened  by  bolts  to  a 
timber,  itself  notched  into  sills  which  were 
imbeddeil  in  the  soil,  is  a  fixture:  McKitrnan 
V.  Utsse,  51  Id.  594. 


661.  Fixlares  attached  to  mines. 

Sec.  GGl.  Sluice-boxes,  flumes,  liose,  pipes,  railway  tracks,  cars,  blacksmith 
Bhops,  mills,  and  all  other  macliinery  oi*  tools  used  iu  working  or  developing  a 
laine,  are  to  be  deemed  affixed  to  the  mine. 

662.  Appurtenances. 

Sec.  GG2.     A  thing  is  deemed  to  be  incidental  or  appurtenant  to  land  when 

it  is  by  right  used  with  the  land  for  its  benefit,  as  iu  the  case  of  a  way,  or 

watercourse,  or  of  a  passage  for  light,  air,  or  heat  from  or  across  the  laud  of 

another. 

nant  thereto:  Loicer  K.  R.  D.  Co.  v.  Kings  R. 
<£.•  F.  (J.  Co.,  03  Id.  40S.  Water  flowing  over 
one's  land  is  part  and  parcel  of  it,  not  appur- 
tenant to  it:  St.  JleU-na  W.  Co.  v.  Forbes,  02 
Id.  182.  A  wharf  aud  chute  erected  by  a 
stranger  to  the  title  are  nob  "incidental  or 
appurteuaut "  to  the  laud,  ou  par*--  of  which 

103 


Appurtenances. — It  is  the  nature  and  use 
of  the  thing  annexed  which  makes  it  appur- 
tenant or  not,  as  the  case  may  be:  Farmi^r  v, 
Ukiah  Water  Co.,  50  Cal.  11,  where  a  right 
to  use  water  for  the  benefit  of  granted  prem- 
ises was  held  to  pass  as  an  appurtenant.  The 
right  to  have  water  flow  in  a  ditch  is  appurte- 


§§  663-670 


PROPERTY  IN"  GENERAL. 


Piv.  n,  Part  I, 


the  wharf  stands:  Cohtm  v.  Ames,  52  Id.  3S5. 
"A  matterappendantarises  only  by  prescription, 
while  a  matter  appurtenant  can  be  created  at 
any  time:  3  Kent's  Com.  404;  2  Vin.  Abr.  51)4:" 
Code  commissioners'  note.  That  appurtenants 
may  be  of  a  corporeal  as  well  as  incorporeal  nature, 
see  Farmer  v.  Utiah  Water  Co.,  56  Cal,  11,  14. 


Land  cannot  pass  as  appurtenant  to  land: 
Armstromj  v.  Dubois,  90  N.  Y.  t)5;  Si.  Louis 
Brhlijp  Co.  V.  CartU,  103  111.  410. 

Easements  and  servitudes:  See  sees.  801 
et  scq.,  jiof't. 

What  passes  as  appurtenant:  Roe  the  not© 
to  Strictltr  V,  Todd,  13  Am.  Dec.  G57. 


663.   Personal  property. 

Sec.  GG3.     Every  kind  of  property  that  is  not  real  is  personal. 


Personal  property:  See  ante,  sec.  14,  subd. 
3;  and  Pol.  Code,  sec.  3  317. 

Growing  crops  are  of  a  peculiar  character. 
They  are  not  goods  or  chattels  within  tlie 
meaning  of  the  statute  of  frauds  requiring 
manual  delivery,  as  they  are  not  susceptible 
thereof:  B>urs  v.  IVcbxler,  G  Cal.  G31;  /iernal 
V.  Iloviou.%  17  Id.  541;  Darin  v.  McFarlane, 
37  Id.  034.  Nor  do  tliey  come  within  the  pro- 
visions of  that  statute  relative  to  sales  of  in- 
terest in  real  estate:  Marshall  v.  Fer<jiisoii,  23 
Id.  Go.  Where  one  of  two  parties  living  on  a 
ranch  sells  to  the  other  a  half-interest  in  a 
growing  crop,  and  they  continue  so  to  live,  the 
vendee  working  as  hired  man  for  the  vendor, 
Bucli  sala  is  not  void  against  eredito:s:  V'lsher 
V.  Wdider,  13  Id.  58;  Uemal  v.  J/ovhus,  17 
Id.  541.  Where  the  owner  of  a  growing  crop 
permits  his  creditor  to  enter  and  harvi  st  the 
Banie  under  an  agreement  to  take  the  amount  of 
the  debt  from  the  proceeds,  and  pay  over  the  re- 


mainder, such  creditor  takes  precedence  of  a 
subsequent  mortgagee  with  notice:  Lovpiisohn 
V.  Ward,  43  Id.  8.  Where  one  enters  and 
plants  a  crop  under  a  parol  agreement  to  di- 
vide the  proceeds  witli  the  owner  of  the  land, 
but  mortgages  the  crop  to  a  stranger,  thi.3  lat- 
ter takes  l);ib  the  intsresb  of  his  inn'tgagee, 
and  is  boim  1  by  the  agreement:  Sanol  v.  JIol- 
loi/,  G3  Id.  339. 

Wldle  it  ii  held  that  the  plaintiff  is  entitled 
to  the  crop  growing  on  land  and  sown  by  the 
defendants  prior  to  the  commencement  of  the 
action  for  the  posse=ision  of  the  land,  (Jorcornn 
V.  Do/',  35  Cal.  47o,  in  Pnf/e  v.  Fow'rr,  39 
Id.  412,  it  was  determined  that  the  piaincifF, 
although  entitled  to  recover  tlie  rents  and 
prolits  of  t!ie  land,  could  not  recover  the  crops 
actually  liarvested. 

Who  entitled  to  crops  on  an  execution  sale 
of  the  Ian  I:  See  the  note  to  Crews  v.  PendlC' 
ton,  I'J  Am.  Dec.  7i>2. 


TITLE   11. 

OWNERSHIP. 

CllAPTEa    I.     OwNERb , GG9 

II.     Modifications  of  Ownership GTS 

m.     Eights  of  Owners 732 

IV.     Termination  of  Ownership .►..» ..,-. 739 


CHAPTER  I. 

OWNERS. 

669.  Owner. 

Sec.  GGi).  All  property  has  an  owner,  whether  that  owner  is  the  state,  and 
the  property  public,  or  the  owner  an  individual,  and  the  property  private.  Ihe 
state  may  also  hold  property  as  a  private  proprietor. 

670.  Property  of  slate. 

Sec.  070.  The  state  is  the  owner  of  all  land  bslow  tide- water,  and  below 
ordinary  hi^^h-water  mark,  bordei'iiig  upon  tide- water  Avithin  the  state;  of  all 
laud  below  the  water  of  a  navigable  lake  or  stream;  of  all  property  lawfully 
appropriated  by  it  to  its  own  use;  of  all  property  dedicated  to  the  state;  and  of 
all  property  of  which  there  is  no  oilier  owner.  [Anierulineitl,  approved  March 
30,  1874;  AmeiuhnenU  1873-4,  217;  ^>o^•  rffeal  July  1,  1874.) 
stat3:  See  Pol.  Code,  sees, 


Proparty  of  tli 
40-4 1. 

Tide-ln)vU,  etc, — Section  cited  in  ••egard 
to  sta.te's  ownership  of  tide-lan  Is  in  {J,il.uin  v. 
UotikiiKj,  G2  Oal.  2JD.  259.     The  bed  of  a  river 


is  within  the  control  of  the  state,  subject  only 
to  tie  rights  of  commerce. 

Public  lauds:  See  Pol.  Code,  sees.  3395  et  seq. 

B:(''iral:  See  p-isf,  sec.  140'». 

Watsr  ci3  a  boundary:  See  note  to  sec.  830. 


IC4 


Title  IT,  Chap.  II.]  MODIFICATIONS  OF  OWNERSHIP.  §§  671-680 

671.  Who  may  oivn  properhj. 

Sec.  671.     Any  per.son,  whether  citizen  or  alien,  may  take,  hold,  and  dispose 

of  property,  real  or  j^ersonal,  within  this  state.     [Amendmenl,  approved  March 

30,  1874;  Amendments  1873-4.  217;  took  effect  July  1,  1874.] 

Alien. — The  disability  of  aliens  to  hold  and  matter  between  the  alien  and  the  goveminent: 

dispose  of  land  within  this  state  is  hereby  re-  Raronillat  v.  Sansevnin,  .32  Id.  376. 

moved.     Article  1,   section   17,  of  the  former  The  above  section  extends  to  resident  aliens 

constitution,  pursuant  to  which  the  above  sec-  only.     Non-resiilent  aliens  cannot  inherit  land 

tion  was  passed,  is  general,   and  operative  in  in  this  state:  Siems^en  v.  Bofcr,  6  Cal,  '2o0;  but 

favor  of  all  foreign  residents.     The  constitu-  see  next  section  and  sec.   1404,  po.si;  although 

tion  of  1870,  article  1,  section  17,  qualifies  the  they  may  purchase  and  hold  land  until  inquest 

right  of  foreign  residents  with  respect  to  prop-  of  office  found:  Norr'n  v.    //o///,    18  Id.    217. 

erty,  by  limiting  the  provision  to  foreignei-s  of  The  alienage  cannot  be  set  up  against  him  in  a 

the  white  or  African  race  eligible  to  become  collateral  proceeding:  Ramirez  v.    Kent,  2  Id. 

citizens.     The  disability  of  alienage  is  now  very  558;  RacouiUaty.  Saiisevain,  32  Id.  .376. 

generally  removed  in  this  country:  See  Elmon-  As  to  the  necessity  of  inquest  of  office  before 

dorffv.  Carmichael,  14  Am.  Dec.  86,  and  note,  title  vests  in  the  sovereignty,  see  note  to  Com- 

By  common  law  an  alien  couidnot  inherit  land:  monwcalth  v.  Illto,  20  Am.  Dec.  233,  and  Cali> 

Norri-t  v.  Iloyt,  18  Cal.  217;  Farrellw  Enriijht,  fornia  cases,  supra. 

12  Id.  4,')0;   but  could  purchase  and  hold  lands  Alien    cannot    hold    of&ce:     Walther  T. 

until  inquest  of  office  found:  Peoph  v.  Folsom,  RuhoK,  30  Cal.  185. 

51<\.  'S'J'A;  Aferlev.  Ji!alhew.s,2ii  h\.  4oo.     His  Alien's    right    to    inherit   property:    See 

right  to  hold  laml  could  not  be  ([uestioned  by  sees.  1404,  post,  et  seq. 
an  individual    in  collateral  actions,  it  was  a 

672.  Aliens  inheriting  mud  claim  loithin  Jive  years. 

Sec.  G72.     If  a  non-resident  alien  takes  by  succession,  he  must  appear  and 

claim  the  property  within  five  years  from  the  time  of  succession,  or  be  barred. 

The  property  in  such  case  is  disposed  of  as  provided  in  Title  VIII. ,  Part  III. , 

Code  of  Civil  Procedure. 

Code  of  Civil  Procedure,  sees.  1260  et  seq.  and  inheritance  of  property,  as  native-boi'ii  cit- 

Nou-resident   aliens. — The    constitutional  izens. "     Tlie   legislature  cannot   abridge   tliis 

provision,  section  17,  aiticle  1,  provides:    "  For-  privilege,  but  it  is  not  disabled  fi-om  extending 

eiguers  who  are,  or  may  hereafter  Ijecome,  bona  it  or  adding  other  privileges;  People  v.  Roytre, 

file  residents  of  this  .state,  shall  enjoy  the  same  13  Cal.  165. 

rights,  in  respect  to  the  possession,  enjoyment. 


CHAPTER  II. 

MODIFICATIONS  OF  OWNERSHIP. 

A£TiCL£  I.  Interests  in  Property — -. . . .  C78 

II.  Conditions  of  Ownership 7<)7 

III.  PiESTKAiNTS  UPON  Alienation  715 

IV.  Accumulations - » ►.- .-.  722 

ARTICLE  I. 

INTERKSTS    IN   PHOPEUTY. 

678.  Ownership,  absolute  or  qualified. 

Sec.  G78.     The  ownership  of  property  is  either: 

1.  Absolute;  or, 

2.  Qualified. 

679.  When  absolute. 

Sec.  G7'J.  The  ownership  of  property  is  absolute  when  a  single  person  has 
the  absolute  dominion  over  it,  and  may  use  it  or  dispose  of  it  according  to  his 
pleasure,  subject  only  to  general  laws. 

"Thus  the  use  of  gunpowder  is  restricced  by  general  laws,  but  its  ownership  may,  neve)iho« 
less,  be  justly  called  absolute:"  Commissioners'  note. 

680.  Whni  qualified. 

Sic.  G80.     The  ownership  of  property  is  qualified: 
1.  When  it  is  shared  with  one  or  uiore  persons; 

1G5 


§§  681-685 


PROPERTY  IN  GENERAL. 


[Div.  II,  Paet  I, 


2.  "Wbon  the  tiine  of  enjoj'ment  is  deferred  or  limited; 
'6.  "When  the  use  is  restricted. 

631.  Several  oivnerf]ilp,  what. 

S  :c.  08 1.  TJie  ownershiii  of  property  by  a  single  person  is  designated  as  a 
sok-  or  sevei'al  ownership. 

682;.    Ownersldp  of  several  persons. 

Si:c.  GS2.     The  ownership  of  property  by  several  persons  is  either; 
1     Of  joint  interests; 

2.  Of  partnership  interests; 

3.  Of  interests  in  common; 

4.  Of  community  interest  of  husband  and  wife, 

683.    Joint  interest,  what. 

Sec.  G83.  A  joint  interest  is  one  owned  by  several  persons  in  equal  shares, 
by  a  title  created  by  a  single  will  or  transfer,  when  expressly  declared  in  the 
will  or  transfer  to  be  a  joint  tenancy,  or  when  granted  or  devised  to  executors 
or  trustees  as  joint  tenants. 


infra.  The  act  of  1855  was  not  retros])ective: 
Dewey  v.  Lambii^r,  supra;  Greer  v.  B'onch'cr, 
supra.  In  De  Witt  v.  San  Francisco,  2  Id.  259, 
it  was  sail!  tliat  corporations  couM  not  be  joint 
tenants.  Provisions  similar  in  eftect  to  that  of 
the  above  section  prevail  in  most  of  the  states, 
the  tendency  in  this  country  being  to  presnmo 
in  favor  of  a  tenancy  in  common,  and  to  requiro 
express  words  to  create  a  joint  tenancy:  See 
the  statutes  collected  in  the  foot-note  to  sectioa 
35  of  Freeman's  Cotenancy  and  Partition. 


Joint  tenants. — The  code  commissioners 
Bay:  "This  jjrovision  is  intended  to  confine  the 
right  of  survivorship  to  cases  in  whicb  its  crea- 
tion was  clearly  intended. "  The  section  isfound- 
ed  uijon  Stats.  1855,  171,  sec.  1.  Prior  to  that 
act  it  was  not  necessary  to  the  creation  of  a  joint 
tenancy  that  it  should  be  expressed  to  be  such 
in  the  instrument  creating  tlie  tenancy:  Greer 
V.  JJlanchar,  40  C'al.  194;  but  such  express 
declaration,  both  under  that  act  and  the  code, 
is  now  essential:  Dewi-y  v.  Lamhier,  7  Id.  347; 
Bowen  v.  May,   12  Id.  348;  and  see  sec.  G86, 

684.  Partnerahip  interest,  what. 

Sec.  684.     A  partnership  interest  is  one  owned  by  several  persons,  in  partner- 
ship, for  partnership  purposes. 
Partnership:  See  potst,  sec.  2395  et  seq. 

685.  Interest  in  common,  what. 
Sec.  G85.     An  interest  in  common  is 

joint  ownership  or  partnership. 

Tenancy  in   common:  See  sees.   683  and 

686.  Tlie  following  oases  afford  illustration  of 
tenancies  in  common:  Two  corporations  may 
hold  ands  in  common:  De  Witt  v.  San  Fran- 
cis'O,  2  Cal.  289;  and  so  also  a  man,  his  wife, 
and  their  child:  Gihlin  v.  Jordan,  6  I<1.  416. 
The  following  are  tenants  in  common:  men 
who  work  a  farm  on  sliares,  the  one  the  owner 
of  the  land,  the  otlier  doing  the  worii;  and  also 
the  grantee  of  the  owner  and  the  latter,  although 
such  grantee  took  under  an  execution  sale  of 
the  owner's  interest:  Bernal  v.  JIooiou>i,  17  Id. 
641;  the  grantee  of  a  specific  quantity  of  a 
larger  tract,  but  not  yet  segregated,  and  the 
grantor:  Wallare  v.  Miller,  52  Id.  055;  Law- 
rence V.  Ballon,  37  I<1.  518;  the  purchaser  at  an 
execution  sale  of  a  partner's  interest  and  the 
coi)artner:  McCauley  v.  Fulton,  44  Id.  356; 
the  grantees  of  co-tenants:  Beeil  v.  Spicer,  27 
Id.  57;  a  husband's  grantee  and  the  wife,  where 
she  held  an  undivided  portion  as  her  separate 
estate:  Ewald  v.  L'orbett,  32  Id.  403:  a  mother 
and  child  claiming  under  deed  from  the  hus- 
band:  Drenliam  v.  Davidson,  51  Id.  352. 

As  an  example  of  a  tenancy  in  common  of 
personalty,  see  Hewlett  v.  Owen,  50  Cal.  47^, 


one  owned  by  several  persons,  not  in 


where  the  parties  were  deemed  co-tenants  of  the 
wool  from  certain  sheep  owned  by  one  of  the 
parties,  and  leased  to  tiie  other  under  an  agree- 
ment to  divide  the  proceeds  from  the  sale  of 
the  wool. 

Either  tenant  in  common  may  sell  his  inter- 
est regardless  of  tiie  consent  of  his  co-tenants, 
and  without  aff'icting  their  legal  relation  be- 
yond the  going  out  of  the  one  and  the  coming 
in  of  the  other:  Bradley  v.  Harkness,  26  Cal. 
69.  In  California  a  tenant  in  counnon  may 
convej'  his  interest  in  a  particular  portion  of 
the  whole,  descril)ed  by  metes  and  bounds: 
Stark  \.  Barrett,  15  Id.  361;  Gates  v.  S'dnion, 
35  Id.  588;  Sniter  v.  San  Francisco,  36  Id.  115; 
Gales  V.  Salmon,  46  Id.  362.  So  also  in  Ohio: 
Whitr\  Lessee  v.  Say  re,  2  Ohio,  112;  Elienezer 
Pre-ntiss'-i  (Jose,  7  Id.  473:  Dennison  v.  Foster,  9 
Id.  126;  in  Virginia:  RolnnAt  v.  Preston's  Heirs, 
2  Roll.  (Va. )  278;  and  in  Missouri:  Barnhart  v, 
Caniph'll,  ^0  Mo.  597.  Whereas,  in  many  of  tha 
states  the  rule  is  otherwise,  such  a  deeil  being 
declared  void:  Freeman  on  Cotenancy,  sue.  199. 
But  in  California  and  other  states,  where  a 
similar  «loetrine  prevails,  the  deed  of  a  co-ten- 
ant by  metes  and  bounds  cannot  prejudice  the 


166 


TiiLE  II,  Chap.  II.] 


MODIFICATIONS  OF  OWXE^SniP. 


686 


rights  of  the  other  co  tenants.  It  docs  not 
attect  the  right  of  partition:  "The  conveyance 
of  a  special  location  may  be  disre^^'arded,  if  it 
be  found  necessary  to  do  so,  in  order  to  make 
a  just  and  equitable  allotment  of  the  lands:" 
Gates  V.  Salmon,  40  Cal.  302,  37S.  And  see 
Judge  Field's  opinion  in  Stark  v.  Barrett,  15 
Id.  301,  and  hifra,  "Ouster." 

The  relation  of  the  co-tenants  to  each 
other. — The  possession  of  one  co-tenant  is  the 
p03session  of  all:  ll'ariiig  v.  Crow,  11  Cal.  300; 
Knox  V.  Marshall,  19  Id.  017;  Colmnn  v. 
Clements,  23  Id.  245;  Owtn  v.  Morton,  24  Id. 
373;  Miller  v.  Meyers,  40  Id.  535.  Eacli  has 
the  right  to  enter  and  occupy  the  whole  of  the 
common  lauds,  and  every  part  thereof:  Tevia 
V.  J  licks,  38  Id.  234;  Carpentier  y.  Webster,  27 
Id.  524.  But  it  will  be  presumed  that  the  ten- 
ant in  possession  holds  for  the  benefit  of  his 
co-tenants:  Cases  supra;  Caiman  v.  Clements, 
supra;  Owen  v.  Morton,  24  Id.  373.  And  the 
tenant  in  common  out  of  actual  possession  has 
the  right  to  rely  on  the  assumption  that  the 
possession  of  his  co-tenant  is  his  possession  un- 
til iuformed  of  the  contrary  by  express  notice, 
or  by  acts  and  declarations  equivalent  to  no- 
tice: A'jiiirre  v.  Alexander,  58  Id.  21 ;  Miller  v. 
Meyers,  40  Id.  535.  If  one  who  takes  posses- 
sion unlawfully  afterwards  becomes  a  tenant  in 
common,  the  moment  he  becomes  such  tenant 
his  possession  loses  its  hostile  character,  and  is 
presumed  to  continue  amicable  until  the  con- 
trary is  made  to  appear:  Carpentier  v.  Mcn- 
denhall,  23  Cal.  484.  A  tenant  cannot  buy 
in  an  outstanding  title  for  his  ovrn  exclu- 
sive benefit;  his  co-tenant  is  entitled  to  come 
in  and  elect  to  share  the  benefit:  Mandeville  v. 
Solomon,  39  Id.  135.  So  also  as  to  tax-title: 
Mills  V.  Tukey,  22  Id.  373.  See  the  note  in  15 
Am.  Dec.  048,  090,  as  to  the  effect  of  purchas- 
ing by  a  tenant  in  common  at  a  sale  of  the  com- 
mon land  for  delinquent  taxes. 

Custer. — The  presumption  that  one  co-ten- 
ant's possession  is  the  possession  of  all  is  rebut- 
table by  various  circumstances.  A  refusal,  after 
a  proper  demand,  by  a  tenant  in  common  in  pos- 
session, to  admit  his  co-tenant,  is  itself  an  ous- 
ter, and  d^sjienses  with  the  necessity  of  further 
proof:  Mi.ler  v.  Myers,  40  Cal.  538;  Greer  v. 
Tripp,  50  Id,  209.  And  in  an  action  to  be  ad- 
mitted into  possession,  and  a  denial  of  tlie 
plaintiff's  title  and  right,  an  entry  establishes 
an  ouster:  Same  citations.  A  denial  of  the  title 
of  a  co-tenant  by  the  tenant  in  possession  is 
eviileine  of  an  ouster:  Carpentier  v.  Gardiner, 
29  Id.  ICO;  Speet  v.  Grerpj,  51  Id.  198;  lUckard 
V.  J( Inison,  51  Id.  545.  Any  act  of  the  co-ten- 
ant ill  thecxelusive  possession,  which  manifests 
an  intention  to  hold  exclusively  for  himself,  is 
equivalent  in  law  to  an  ouster:  Owen  v.  Mor- 
ton, 21  Id.  373.  Mere  proof  of  exclusive  pos- 
session, and  that  tenant  does  not  claim  un- 
der his  co-tenant  out  of  possession,  is  not 
BuSicient  to  sliow  an  ouster:  Id.  As  to  tiie  dif- 
ference between  the  finding  in  a  special  verdict 
of  an  outer  and  of  probative  facts  which  go 
toward  establishing  an  ouster,  see  Packard  v. 


Johnxon,  57  Id.  150;  Cairfientier  v.  Mendenha'l, 
23  Id.  484;  Carpentier  v.  Webster,  27  Id.  524. 

Taking  actual  jiossession  of  land  under  a 
deed  which  purports  to  convey  the  whole 
tliereof,  under  a  belief  that  it  conveys  tho 
whole  whiie  in  fact  it  conveys  but  an  undi- 
vided portion,  is  not  an  ouster  of  a  tenant  ia 
common:  Seaton  v.  Sun,  32  Cal.  481.  The  de- 
cision in  this  case  is,  however,  not  approved 
in  linger  v.  Mooney,  03  Id.  580,  597,  where, 
after  an  elaborate  consideration  of  the  question, 
the  court  lield  tliat  an  entry  and  occupancy 
under  a  deed  for  the  entire  tract,  executed  by 
but  one  of  the  co-tenants,  was  an  ouster  of  the 
other.  The  deed  from  the  co-tenant  was  re- 
corded. See  a  lite  case,  Datli  v.  Valdes,  0  West 
Coast  Rep.  889,  where  the  mere  possession  by 
a  vendee  of  one  tenant  was  held  not  notice  to 
the  co-tenant,  and  not  an  ouster. 

For  considerations  of  the  question  of  ouster 
by  a  co-tenant,  see  the  notes  to  Gillasjiie  v.  Os- 
bvrn,  13  Am.  Dec.  140;  Porter  v.  IIon])er,  29  I<1. 
484;  Freeman  on  Cotenancy  and  Partition,  sees.' 
300  et  seq. ;  2  Waterman  on  Trespass,  sec.  940. 

Actions  betv7een  co-tenants. — One  tenant 
cannot  sustain  an  action  of  forcible  entry  and 
detainer  against  another  for  holding  over:  Lick 
V.  Donni'll,  3  Cal.  59.  Trover  or  assumpsit  for 
money  had  and  received  will  lie  for  selling  the 
common  chattel:  Williams  v.  Chculhourne,  0  Id. 
559;  but  not  an  action  for  goods  sold  and  deliv- 
ered: Id.  Whether  an  action  for  an  account- 
ing will  lie  between  co-tenants,  see  I'lco  v. 
('olumhcrt,  12  Id.  4C0,  refusing  to  entertaia 
such  a  proceeding:  Goodenow  v.  Ewer,  10  Id, 
401;  Abel  v.  Love,  17  Id.  2.33;  Clark  v.  Jones, 
49  I<1.  018.  Ami  see  Chambersv.  Chambirx,  14 
Am.  Dec.  580,  in  note,  where  the  authorities 
pro  and  con  are  collated.  That  co-tenant  can- 
not assail  the  common  title,  see  Ohiey  v.  Sow- 
yer,  54  Cal.  379;  Hornheimer  v.  Baldwin,  42  Id. 
27;  nor  avail  Isimselfof  the  statute  of  limita- 
tions where  lie  has  done  nothing  tantamount  to 
an  ouster,  see  ^IcCauUy  v.  Harvey,  49  Id.  497. 
As  to  ejectment  between  co-tenants,  see  also 
Ewald  V.  Coibett,  32  Id.  493;  Lawrence  v.  Bed- 
lov,  37  Id.  518. 

Relation  of  tenants  iu  common  to  third 
person. — A  tenant  in  common  is  entitled  to 
the  [tossession  of  tlie  entire  tract  as  against  all 
persons  but  his  co-tenants  and  parties  cLiimiug 
under  them:  Hart  v.  Eohertson,  21  Cal.  340; 
Clark  V.  Iluher,  20  Id.  190;  Muller  v.  Bogqs, 
25  Id.  175;  Treat  v.  Reilly,  35  Id.  129;  Wdl- 
ioms  V.  Sulton,  43  Id.  05.  He  may  maintain 
ejectment  for  the  entire  premises:  Torichard  v, 
C'rou',  20  Id.  150;  Mahovey  v.  Van  Winkle,  21 
Id.  5.32;  Collier  V.  Corbelt,  15  Id.  183;  may  re- 
cover the  possession  of  tlvc  entire  premises  aa 
against  a  trespasser,  without  joining  his  co-ten- 
ant:  Treat  v.  J:eilly,  .35  Id.  129. 

Partition:  See  Code  Civ.  Proc,  sees.  752 
et  seq. 

Husband  and  wife  as  tenants  in  com- 
mon: See  sec.  101. 

Devise  or  legacy  to  two  or  more  makes 
them  owners  in  common:  See  sec.  1350. 


686.  WJwl  inter  est  s  are  in  common. 

Sec.  G86.     Eveiy  interest  created  in  favor  of  several  persons  in  their  own  right ' 
is  an  interest  in  common,  unless  acquired  by  them  in  partnership,"  for  partnership 
purposes,  or  unless  declared  in  its  creation  to  be  a  joint  interest,  as  provided  in 
BGction  six  hundred  and  eighty-three,  or  unless  acquired  as  community  property.  . 

107 


§§  6S7-G05  PROPEIITY  IX  GENERAL.  [Div.  II,  Part  I, 

687.     Community  property. 

Skc.  G87.  Communit}'  properh'  is  property  acquired  by  husband  and  wife, 
or  eiLlier,  during  marria.!^e,  when  not  acquired  as  the  separate  property  of  either. 

In  tliG  original  draught  of  this  section  the  estates  which  they  may  acqiiite  (lai-in;j  tlie 
there  wcro  addcJ  the  voiils  "  or  as  oouiniou  or  marriage,  either  hy  duuations  made  j  )intly  to 
joint  property  of  both."  And  to  thi'i  sectio.i  tiicm  both,  or  by  pareliase,  or  ia  any  other 
was  appcn  iccl  the  following  note:  "The  com-  simdar  way,  even  alfchongli  the  purchase  be 
niunity  property  consists  ot  the  profits  of  all  only  in  the  name  of  one  of  tlie  two,  and  not  of 
the  effects  of  which  the  luisuand  lias  the  ad-  both,  because  in  that  case  tlic  pGri.)d  of  time 
minitiir.'ion  and  enjoyment  either  of  right  or  when  the  purcliaso  is  made  is  alone  attended  to, 
in  fact,  or  the  jn'oducc  of  the  reciprocal  m  lui-  and  no'  t'le  person  who  made  the  purclniso." 
try  and  labor  of  both  husband  and  wife,  and  of         Coinmuaity  pro^^erty:  iSee  sec.   \iji,  ante, 

68S.    Interests  as  to  time. 

tizc.  CSS.  In  respect  to  th9  time  of  enjoyment,  an  interest  ia  property  is 
either: 

1.  Present  or  future;  and, 

2.  Perpetual  or  limited. 

Inte:  est  as  to  time  of  enjoyment. — "These  Upvell  v.  Hulmj,  1  P.  Wms.  Gol;  see  Phelps 

distinctions  exist  in  regard  to  p3isoual  property  v.   Pond,  2.3  N.   Y.   (J9;    S.   C,   "28  Barb.    \1\; 

as  well  as  real:    WcscMt  v.  Cad;/,  5  Johns.  Ch.  /{■nicv.  A-'tor,  5  Sandf.  437;  Uri'dcnvuix.  Schcr- 

334;  GU'cs;>ic  V.  MUlcr,  Id.  21 ;  Randall  v.  Ras-  morhorn,  3  Sandf.  Ch.  IS) ;  M'tson  v.  Jones,  2 

aell,  3  .Mcriv.  190;  I/i/dev.  P<rratl,  1  P.  Wms.  Barb.  223:"  Commissioners'  note. 
1;  S.  C,  2  Veru.  331;  Smllli-  v.  Clever,  Id.  59; 

689.    Present  interest,  xchat. 

Sec.  G89.  A  present  interest  entitles  the  o\imer  to  tiae  immediate  possession 
of  the  i^roperty. 

630.    Future  interest,  ivhat. 

Sec.  goo.  A  future  interest  entitles  the  owner  to  the  possession  of  the  prop- 
erty only  at  a  future  period. 

"Tims  a  reversion,  as  well  as  a  remainder,  is  Conditions  upon  the  enjojrment  of  es- 

a  future  estate.     They  are  both  expectant  es-  tates:  See  sues.  707  etseq. 

tates:"  Commissioners'  note.  Tenninatiug  future  interests :  See  sees.  739 

Accunnlationa  as  fature  interests:  See  et  tieq. 
Bees.  722  et  seep,  and  733. 

691.  Perpetual  interest,  what. 

Sec.  G91.     A  perpetual  interest  lias  a  duration  equal  to  that  of  tlie  j^roperty. 

692.  Limited  interest,  xolint. 

Sec.  G92.     A  limited  interest  has  a  duration  less  tlian  that  of  the  property. 

693.  Kinds  of  future  interests. 

Sec.  G93.     A  future  interest  is  either: 

1.  Vested;  or, 

2.  Contingent. 

■*So,  also,  with  personal  property:  Phelps'a  Ex'rs  v.  Pond,  23  N.  Y.  69:"  Commissioners'  note, 

694.  Vested  interests. 

Sec.  694.  A  future  interest  is  vested  when  there  is  a  person  in  beinp^  who 
would  have  a  right,  defeasible  or  indefeasible,  to  the  immediate  possession  of 
the  property,  upon  the  ceasing  of  the  intermediate  or  precedent  interest. 

"The  words  'defeasible  or  indefeasible' ob-  always    been    held    to    bo   vested:     Poirc/s    v. 

viate  tlic  objection  that  a  future  interest  might  Benjen,  G  N.  Y.    330;    Root  v.  Stni/vr-'niif,    IS 

be  vested  and  also  contingent:  Coder  v.  Lor/l-  Id.  2(JS;  Dubois  v.  Rnij,  7  B;)S\v.  2S7;    iVdiiam- 

liird.  It  Wend.  302;  e.  </.,  a  remainder  to  do-  son.  v.   Field,  2  Sandf.  Ch.  533:"    Couimisbion- 

Bccndaiits  in  being  subject  to  open  and  let  in  ers'  note, 
after-born  descendants.    Such  remainders  liave 

6S5.    Contingent  interests. 

Sec.  G05.  A  future  interest  is  continifont  whilst  the  person  in  whom  or  the 
event  upon  which  it  is  limited  to  take  efioct  remains  uncertain. 

163 


Title  II,  Crap.  II.]  MODIFICATIONS  OF  OWNERSHIP.  §§  696-707 

636.    Two  or  more  future  interests. 

Sec.  GOC.  Two  or  more  future  interests  may  be  created  to  take  effect  in  tlie 
alternative,  so  that  if  the  first  in  order  fails  to  vest,  the  next  in  succession  shall 
be  substituted  for  it,  and  take  effect  according-lj. 

"LoddiiKjton  v.  Kime^  1  Ld.  Rayiii.  203;    2  Smith's  Fearne,  43:"    Comnriasioners' note. 

697.  Cerlain  future  interests  not  to  be  void. 

Sec.  got.  A  future  interest  is  not  void  merely  because  of  the  improbability 
of  the  contingency  on  which  it  is  limited  to  take  effect, 

698.  rostliumoiis  children. 

Sec.  G98.  When  a  future  interest  is  limited  to  successors,  heirs-,  issue,  or 
children,  posthumous  children  are  entitled  to  take  in  the  same  manner  as  if 
living-  at  the  death  of  their  parent. 

"  Stats.  1855.  171,  sec.  5;  J/o-soh.  v.  Joiies,  2  Putrire  intsresta  defeated  by  birth  -fpos- 
Baib.  234-252:"  Couimissiouers' uote.  thumoua  child:  See  sec.  73'J,  post,  auJ  uote, 

699.  Qualities  of  expectant  elates. 

Sec.  C99.  Future  interests  jDass  by  succession,  will,  and  transfer,  in  the  same 
manner  as  present  interests. 

"  ]Yood  V.  Knjes,  8  Paige,  3G5-3G8;    Wrnddl     76;  Orou'  v.  Tox-nf^end,  2 Hill  (N.  Y.),  554-557:" 
V.  Ciaiididl.    1   N.  Y.  49!;   Pond  v.  Bcri/h,  10    Commissioners' uote. 
Paige,  140-154;  Lawrence  v.  Baijard,  7  Iil.  70- 

700.  31<'re  possibilitij  not  an  inlerc>it. 

Sec  7C0.  A  mere  possibility,  such  as  the  expectancy  of  an  heir  appai'ent,  is 
not  to  be  deemed  an  interest  of  any  kind. 

"Jrvrkxon  v.  Bradford,  4  Wend.  019;  Tooley  v.  Smith,  41  Barl).  404;  MUler  v.  Einans,  19  N. 
V.  Ulub.'e,  2  Hiil  (N.  Y.),  641;  see  Condtrman    Y.  384:"  Commiasiouers'  note. 

'JOl.   Infi'rrsts  in  real  proper tij. 

Sec.  701.  In  respect  to  real  or  immovable  property,  the  interests  mentioned 
in  this  chapter  are  denominated  estates,  and  are  specially  named  and  classilied 
in  Part  II.  of  this  division. 

"It  has  lieen  deemed  unadvisal lie  to  apply     there  are  precedents  for  such  a  course: "  Cona- 
the  technical  name  of  estates  in  real  property     mibsioucrs'  uote. 
to   interests   in    personal    property,    although 

702.    Interests  in  personal  property. 

Si:c.  702.  The  names  and  classification  of  interests  in  real  property  have  only 
such  application  to  interests  in  personal  property  as  is  in  this  division  of  the 
code  expressly  provided. 

'JOS.     What  future  interests  are  recognized. 

Sec  703.  No  future  interest  in  property  is  recognized  by  the  law,  except  such 
as  is  defined  in  this  division  of  the  code. 

ARTICLE  II. 

CONDITIONS   OF    OWNERSHIP. 

707.    Fi.rinq  the  time  of  enjoyment. 

Sec  707.  The  time  when  the  enjoyment  of  property  is  to  boffin  or  end  may 
be  determined  by  computation,  or  be  made  to  depend  on  events.  In  the  latter 
case,  the  Mijoyment  is  said  to  be  upon  condition. 

Cond:tion3  generally.— Conditions  are  pri-  tlie  estate  granted  has  a  qualification  annexed 
ma-.ly:  1.  (  on^litions  in  law,  heinLT  sucli  onn-  \vlR-r<-by  the  est  ite  shall  com  inMice,  he  enlarged, 
ditinis  as  arc  annexed  to  an  estate  l)y  the  law;  or  djfo  ite  I,  upon  perfonn:iuce  or  bn-ach  of 
and.  2.  Corditi  ns  in  dcevl.  "An  estate  on  s^uch  (juiHlication  or  condia  >ii."  And  see 
COM  'ition  i'l  dead  is  thus  delined  in  ITA'W'-r  v.  G:-eeul.  C.ai.,  tit.  13.  c.  I,  2;  4  Kent's  Com..  sec8» 
\Yalt('i\  2  Conn.  100:  'An  est.ate  on  condition  121  ft  seij  ;  Bouv.  I^w  Diet.,  tit.  Cu.idition. 
expiessed  in  the  grant  or  devise  itself  is  whjre         There   are   certain   technical    wortls    proper 

109 


§3  708-710 


PROPERTY  IN  GENERAL. 


[Div.  n,  Part  1, 


in  themselves  to  make  a  condition;  these  are 
siih  ronditioiic,  proviso,  itaquod:  Co.  Lit.  203  b; 
and  quod  ai  conl/nqal,  if  followed  bv  a  clause  of 
re-entry:  Id.  204' b;  Staidei/  v.  CoU,  5  Wall. 
119;  Whrelerv.  Walker,  2  Conn.  19G;  Hooper 
V.  (Jummings,  45  Me.  359;  Paschall  v.  Pasn- 
mope,  15  Pa.  St.  295;  Rawaon  v.  Inhahitanls  of 
School  DM.  No.  5,  7  Allen,  125;  Warner  v. 
B^.intetl,  31  Conn.  468;  Gray  v.  Blanchard,  8 
Pick.  284.  These  words  are  not  essential, 
however;  any  words  which  clearly  indicate  an 
intention  to  create  an  estate  upon  condition, 
will  suffice,  regard  being  had  to  tlie  whole  of 
the  deed  or  will  in  which  they  occur:  Bacon  v. 
Huvthigtoii.  14  Coim.  92;  Ilapijoodv.  Uomjhton, 
22  Pick.  480;  Le>i>^ee  of  Woman  v.  Teagarden, 
2  Ohio  St.  380;  Wallers  v.  Brediri,  70  Pa.  St. 
235;  Undcrhill  v.  S.  <£•  W.  B.  R.  Co.,  20  Barb. 
458;  Ilani'dtoii  v.  Kneeland,  1  Nev.  40. 

As  the  policy  of  the  law  is  to  render  the 
alienation  and  transfer  of  property  as  free  as 
possible,  conditions  are  not  favored  in  law. 
Tlierefore,  whenever  words  can  be  construed  in- 

« 
"708.    Conditions. 

Sec.  708.     Conditions  are  precedent  or  subsequent, 
ning,  the  latter  the  ending-,  of  the  right. 


differently,  as  a  condition,  reservation,  or  a  cove- 
nant, the  tendency  of  the  courts  is  to  construe 
them  rather  as  eitiier  of  the  latter  than  as  the 
former:  Chapin  v.  School  DUt.  No.  2,  35  N.  H. 
445;  lloyt  v.  Kimball,  49  Id.  320;  Wheeler  v. 
Dascomb,  3  Cush.  285;  Thornton  v.  Travnnd', 
39  Ga.  202;  Pasrhall  v.  Passmore,  15  Pa.  St. 
295;  Kruetzx.  Mc Knight,  51  Id.  232.  A  con- 
dition cannot  be  ingrafted  upon  a  conveyance 
by  parol:  Marshall  County  High  School  v.  Iowa 
Evangelical  Synod,  28  Iowa,  3i50;  Thompson  v. 
Thompson,  9  Id.  323;  Rogers  v.  Sebastimi  County, 
21  Ark.  440;  Moser  v.  Miller,  7  Watts,  156; 
Chapman  v.  Gordon,  29  Ga.  250;  Dunbar  v. 
Siclder,  45  Iowa,  384. 

See  the  valuable  note  to  Gray  v.  Blanchard, 
p.  123  of  1  Sharswood  &  Budd's  Leading  Casea 
on  Real  Prop. 

One  who  has  deeded  his  realty  absolutely 
cannot  thereafter  charge  it  with  conditions: 
Alemany  v.  Daly,  30  Cal.  90. 

Coaditional  legacies:  See  sees.  1345,  post, 
et  seq. 


The  former  fix  the  beffin- 


Conditions  precedent  and  subsequent.  — 

Generally,  a  condition  is  precedent  where  the 
act  of  condition  precedes  the  vesting  of  tlie  es- 
tate, and  is  subsequent  where  tiieactis  capable 
of  performance  as  well  after  as  before  tlie  vest- 
ing the  estate:  Finlay  v.  King^s  Lessee,  3  Pet. 
346:  Martin  v.  Ballon,  13  Barb.  119;  Under- 
hill  V.  S.  W.  R.  R.  Co.,  20  Id.  458;  Parker  v. 
Nichols,  7  Pick.  Ill;  Burnet  v.  Strong,  26 
Miss.  IIG;  Beil  Co.  v.  Alexander,  22  Tex.  350. 
The  clearly  manifested  intention  of  the  testa- 
tor or  grantor  will  work  a  contrary  construc- 
tion: Same  citations;  Piatt  on  Covenants,  c. 
2,  sec.  5. 

A  condition  precedent  must  be  strictly  per- 
formed before  the  estate  can  vest  or  be  en- 
larged: Bramin  v.  Mesick,  10  Cal.  95.  A  con- 
ve^'ance  upon  condition  passes  the  title  to  the 
grantee,  subject  to  be  defeated  by  a  non-per- 
formance of  the  condition:  Sped  v.  Gregg,  51 
Id.  138;  and  see  Clayton  v.  Walker,  10  Id, 
450,  where  non-paj'ment  of  the  consideration 
was  sought  to  be  operative  to  retransfer  the 
land:  2  VVashb.  on  Real  Prop.,  4th  ed.,  3. 


Conditions  subsequent  are  not  favored. — 

They  "go  in  destruction  and  defeasance  of 
estates,  are  odious  in  law,  and  shall  be  taken 
strictly:"  Fraunces'  Case,  8  Co.  90  b;  Michigan 
State  B'tnk  v.  Hastings,  41  Am.  Dec.  549:  Weir 
V.  Simmons,  13  N.  W.  Rep.  873  (Wis.);  Ta^jlor 
v.  Sutton,  15  Ga.  103;  Voris  v.  Renshaw,  49  Id. 
425;  Hooper  v.  Cummings,  45  Me.  359;  Laheree 
v.  Carleton,  53  Id.  211;  Gleen  v.  Davis,  35  Md. 
208;  Gndherry  v.  Sheppard,  27  Miss.  203; 
Emmerson  v.  Simpson,  43  N.  H.  475;  Hoyt  v. 
Kimball,  49  Id.  322. 

For  a  discussion  of  conditions  subsequent, 
when  and  at  whose  instance  tiiey  may  be  set  in 
motion  to  defeat  an  estate,  see  the  note  to 
Cross  V.  Carson,  44  Am.  Dec.  742.  See  also 
the  note  in  1  Sharswood  &  Budd's  Lead.  Cas.  on 
Real  Prop.  123  et  seq. 

Entry  for  condition  broken:  See  1  Shars- 
woo  I  &  Budd's  Lead.  Cas.  on  Roal  Prop.  143. 

Conditional  obligations:  See  sees.  1434- 
1442,  p  'St. 

ConditJonal  limitation  — Remainder  operat- 
ing to  abridge  precedent  estate:  sec.  778,  post. 


709.    Certain  conditions  precedent  void. 

Sec.  709.  If  a  condition  precedent  requires  the  performance  of  an  act  wrong 
of  itself,  the  instrument  containing  it  is  so  far  void,  and  the  right  cannot  exist. 
If  it  requires  the  perfox'mance  of  an  act  not  wrong  of  itself,  but  otherwise 
unlawful,  the  instrument  takes  effect  and  the  condition  is  void. 


"All  the  instances  of  conditions  against  law 
are  I'educible  under  one  of  these  heads:  1.  To 
do  something  that  is  malum  in  se  or  malum 
prohibitum;  2.  To  omit  something  that  is  a 
duty;  3.  To  encourage  such  crimes  and  omis- 
sicms:  1  P.  Wins.  189;  Greenl.  Cru.,  tit. 
13,  c.  1,  sec  19:"  Commissioners'  note.  A 
deed  to  be  null  and  void  if  the  grantee  does 


not  procure  two  witnesses  to  testify  to  certain 
facts  is  a  conveyance  of  t'.ie  legil  title  with  an 
unlawful  condition  subsaquent:  Pattersm  v. 
Doaiier,  43  Cal.  3'33.  See  tlje  note  to  Cr>ss  v. 
Cai-soa,  41  Am.  Dec.  742;  an  I  see  next  seotioa 
and  note  for  further  consideration  s  of  these 
questions  suggested  by  the  above  section. 


710.    Conditions  restraining  marriage  are  void. 

Sec.  710.     Conditions  imposing  restraints  upon  marriage,  exG3pt  upon  the 
marriage  of  a  minor,  are  void;  bat  this  djas  nob  affect  liinitatiaiii  w'airj  the 

170 


Title  II,  Chap.  II.]  MODIFICATIONS  OF  OWXEHSHIP. 


§§  711-715 


intent  was  not  to  forbid  marriage,  but  only  to  give  the  use  until  maniage. 
[Amendment,  approved  JlIa7X-h  30 ,  1874;  Ahiendmentti  1873-4,  218;  took  effect  July 
1,1874.] 


Conditions  in  restrciint  cf  marriage. — This 
Bection  as  originalh' adopted  was:  "Sec.  710. 
Conditions  imposing  restraints  upon  mariia^'o, 
except  upon  the  mat  riage  of  a  minor,  are  void." 
To  this  section  the  comniissicncrs  aj)pended 
tho  following  note:  "  Note. — In  tiie  first  report 
of  this  code  to  the  legislature  this  section  ix-ad 
as  follows:  'Sec.  710.  Conditions  imposing 
restrains  upon  marriage,  except  upon  the  mar- 


in  tliis  particular  restored  the  section  to  its 
origin:d  reading  in  the  proposed  code,  leaves 
uo  douht  but  that  the  limitation  of  an  estate  to 
a  widow  so  long  as  she  remains  uninairied  is 
good.  Decisions  which  recognize  the  distinc- 
tion between  a  condition  subsequent  divesting 
an  estate  by  the  marriage,  and  sucli  limitations 
upon  the  duration  of  tiie  enjoyment  of  the 
estate  as  are  here  approved  of,  are:  Phillips  v. 


riage  of  a  minor,  or  of  the  widow  of  the  person     Me.dbur;/,  7  Conn.   oGS;  Jfoopa  v.  Dundas,  10 


by  whom  the  condition  is  imposed,  are  void; 
but  t!)is  does  not  affect  limitations  where  the 
intent  was  not  to  forbid  marriage,  but  only  to 
give  the  use  unt.l  marriage.'  This  was  the 
rule  of  the  common  law.  The  commission 
deem  it  advisable  to  modify  it.  By  the  com- 
mon law  a  condition  restraining  a  widow  from 
a  second  marriage  might  Ije  held  good.  The 
authorities  as  to  the  validity  of  a  condition 
restraining  a  widow  from  marriage  are  con- 
flicting. *  *  *  I'he  commission  in  present- 
ing the  above  section  have  declared  that  all 
conditions  imposing  (any)  restraint  upon  mar- 
riage, except  upon  the  marriage  of  a  minor, 


Pa.  .St.  7.');  Mitchell  v.  Mitchell,  20  Md.  581; 
Link  V.  Birdived,  21  Tex.  Gil;  //cdtz'>i  Estate, 
W^  Pa.  St.  422;  FriiKjIe  v.  Durddey,  14  Smed.  & 
M.  IG;  CopiKuje  v.  Alfxandcrs  Heirs,  .S3  Am. 
Dec.  \y^,  in  the  note  to  which  this  subject  is 
discussed. 

The  rules  which  govern  a  devise  in  restraint 
of  a  widow's  marriage  apply  to  like  devise  in 
restraint  of  widower's  marriage:  Bo'^ticich  v. 
Blades,  4  Am.  Law  Rec.  720  (Md.  Ct.  of  Ap^.). 

J/ofjcui  V.  Curlin,  88  N.  Y.  1G2,  is  an  inter- 
esting case,  holding  a  condition  subsequent  in 
partial  restraint  of  marriage  valid.  There  the 
breach  of  the  condition  would  not  have  worked 


are  void.     All  such  restraints  are  odious,  antl     a  forfeiture  of  the  legacy  in  question,  the  will 


tho  re."sons  which  are  to  be  advanced  against 
restraints  upon  matriage  generally  would  be 
equally  applicable  to  restraints  upon  the  mar- 
riage of  widows.  Even  a  condition  in  restraint 
of  marriage  with  some  particular  person  would 


not  providing  for  a  devise  over  after  breach, 
had  it  not  a])peared  that  realty  had  been 
charged  in  aid  of  this  legacy,  and  must  needs 
be  sold  to  satisfy  it.  Under  these  circum- 
stances, the  distinction  between  cou<litions  in 


often  have  the  eilect  of  a  virtual  prohibition  of    restraint  of  marriage  annexed  to  a  becpiest  of 


maniage. 

Had  the  section  stood  as  it  was  at  first 
adopted,  the  valiilityof  conditions  limiting  the 
use  of  property  to  a  widow  during  her  widow- 
hood might  have  been  ([uestioned;  but  the  last 
clause  added  by  the  amendment  of  1874-,  which, 


personal  estate,  and  the  like  condition  annexed 
to  a  devise  of  real  estate  or  to  a  charge  upon  it, 
was  applied,  and  the  legacy  declared  to  have 
been  forfeited. 

Contracts  in  restraint  of  marriaga:  See 
pod,  sec.  1076. 


711.    CondUions  restraining  alienation  void. 

Sec.  711.     Conditions  restraining  alienation,  wben  repugnant  to  the  interest 
created,  are  void. 


Restraint  upon  alienation. — A  condition 
in  general  restraint  of  alienation,  or  that  the 
grantee  shall  not  alien  during  his  life,  is  void: 
Murray  v.  Green,  6i  Cal.  .3()o;  Blackdone  Bank 
V.  Lavix,  21  I'ick.  42;  I'ei/xmjder  v.  Hunter,  19 
Pa.  St.  41;  Walker  v.  Vincent,  Id.  .300;  Dick  v. 
Pitchford,  1  Dev.  &  B.  Eq.  4S0;  Schermerhorn 
V.  I>'eijHs,  1  Denio,  448;  Gleaxon  v.  Payer- 
treat  her,  4  Gray,  348;  Hall  v.  Tufts,  18  Pick. 
4.").").     A  partial  lestraint  upon  alienation,  the 


tained:  Hill  v.  Hill,  4  Barb.  419;  lilcWilliama 
V.  Aisley,  2  Serg.  &  11.  507;  Stewart  v.  Brady, 
3  Bush,  G2.5;  Steicart  v.  Barrow,  7  Id.  308; 
Cornfliiis  V.  Irins,  2  Dutch.  37G;  Lanydon  v. 
fiiyninis  Guardian,  28  Ind.  3G0;  see  also  sees. 
71'),  772,  post,  and  the  tide  on  Uses  and  Trusts, 
2)0xt,  sees.  847  et  seq. 

Many  questions  arising  out  of  the  restraints 
upon  the  alienation  of  property  will  be  found 
succinctly   discussed    in    the    recent   ess;\y  by 


limitation  being  not  umeasouable,  will  bo  sus-    Professor  Gray,  called  Kestraints  on  Alienation. 

ARTICLE  III. 

BESTRAINTS    UPON   ALIENATION. 

715.    now  long  it  may  he  su>fpended. 

Sec.  715.  The  absolute  power  of  alienation  cannot  be  suspended,  by  any 
limitation  or  condition  whatever,  for  a  longer  period  than  during  the  contin- 
uance of  the  lives  of  i)ersons  in  being  at  the  creation  of  the  limitation  ov  condi- 
tion, except  in  the  single  case  mentioned  iu  section  seven  hundred  and  seventy- 
two. 

"This  includes  a  trust  of  real  property:  Cos-  II.  5G4,  563;  Bm/nton  v.  Hoyf,  1  Denio,  5.3,  58; 
Ur\.  Lorilard,  14  Wend.  205,  313;  f/awley  v.  Beokman  v.  Boasor,  23  N.  Y.  208.  310.  The 
J'tmes,  16  Id.  121,  173,  174,208;  Kane  v.  Gott,  words  '  limitation  or  ccmdition  '  are  substituted 
24  Id.  641,  662,  607;  Hone  v.  I'a/i  Schavk,  20    for  'estate  '  so  as  to  include  powers:  See  UaW' 

171 


§§  716-724  PROPERTY  IN  GENERAL.  [Div.  II,  Part  I, 

ley  V.  Jani^x,  IG  Wend.  135.  173,  20S;  Coster  v.  be  the  evident  purpose  of  the  provisions  of  the 

LoriUnrd,\\\i\.'.\2\,'M'i;  Iloiie  v.  Van  Srhairk,  coile  which  limit  the  period   witliiu  wiiiuli  es- 

20   Id.  .iiiQ,  r)t)7,  aGD: "   CommissiDncrs'  mte,  tates  must  vest  during  the  existence  of  living 

taken  from  the  note  appended  to  the  New  York  persons  simply  to  shorten  that    period    as  es- 

code,  sec.  "201 .  tablished  by  the  common  \.x\v.     Accepting  tliia 

Soctio:is  7lo  and  772  do  not  apply  to  trusts  as  the  real  intent  of  the  statute,  full  force  and 

for  cliavitaljle  purfjoses:  E-<tate  of  ll'inddcy,  53  elfect  is  given  to  tlie  languai^e  employed;  and 

Cal.  437.      "  Tlie  sections  of  the  code  proliil)it  the  rule  of  the  statute,  like  that  of  the  conimon 

limitations  or   conditions  which  may  suspend  law,  may  co-exist  with  ami  leave  undisturbed 

the  power  of  alienation  beyond  the  lives  of  per-  the  doctrines  of   the  common   law  ap.ilicable 

sons.     Beaiing  in  mind  the  object  of  tiie  com-  to  charities  :"  Ptr  McKiustry,  J.,  iu  Ealate  of 

mon-law  rule  to  prevent  the  perpetud  settle-  lliiickhy,  mipra. 

ment  of  property  in  families,  it  would  seem  to  See  also  sec.  771,  post, 

716.  Faliire  interests  void  which  suspend  pnoer  of  alienation. 

Sec.  71G.  Every  future  interest  is  void  in  its  creation  whicli,  by  any  possi- 
bility, may  suspend  the  absolute  power  of  alienation  for  a  longer  period  than  is 
prescnbed  iu  this  chapter.  Such  power  of  alienation  is  suspended  when  there 
are  no  persons  in  being  by  whom  an  absolute  interest  in  possession  can  be  con- 
veyed. 

:Vo:d  future  interests.  —  "The  words  'by  Jcnnhr/s  v.  Jenninfjn,  7  N.  Y.  547,  549;   Ar- 

any  possi'oility  may'  are  new,  but  in  accord-  mory  v.  Lord,  9  Id.  415;    T/iom/M-^n  v.  Carmi- 

ancewith  llawhyw.  Jamefi,  1(5  Wend.  120,  123,  ck:iel's  Ex'r^,  1  Sandf.  Cli.  395;  Arnold  v.  Oil' 

171,  178,  227;  Ewritt  v.  Ecerill,  29  Barb.  11  J;  berl,  3  Id.  bbS:''  Commissioners'  note. 

717.  Leases  of  agricultural  land  for  over  ten  years,  void. 

Sec.  717.  No  lease  or  grant  of  agricultural  land  for  a  longer  period  than  ten 
years,  in  which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall  be  valid. 

718.  Leases  of  city  lots  for  over  twenty  years,  void. 

Sec.  718.  No  lease  or  grant  of  any  town  or  city  lot  for  a  longer  period  than 
twenty  years,  in  which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall 
be  valid. 

AKTICLE  IV. 

ACCUMULATIONS. 

722.  Dispositions  of  income. 

Sec  722.  Dispositions  of  the  income  of  property,  to  accrue  and  to  be  re- 
ceived at  any  time  subsequent  to  the  execution  of  the  instrument  creating  such 
disposition,  are  governed  by  the  rules  j)i'escribed  in  this  title  in  relation  to 
future  interests. 

723.  Aceunnilations,  when  void. 

Sec  723.  All  directions  for  the  accumulation  of  the  income  of  property, 
except  such  as  are  allowed  by  this  title,  are  void. 

724.  Accumulation  of  income. 

Sec  724.  An  accumulation  of  the  income  of  property,  for  tho  banefit  of  one 
or  more  persons,  maj'  be  directed  b^'  any  will  or  transfer  in  writing  sufiioieut  to 
pass  the  property  out  of  which  the  fund  is  to  arise,  as  follows: 

1.  If  such  accumulation  is  dix'ecteJ  to  commence  on  the  creation  of  the  inter- 
est out  of  which  the  income  is  to  arise,  it  must  be  made  for  the  benefit  of  one 
or  more  minors  then  in  being,  and  terminate  at  the  expiration  of  their  minority; 
or, 

2.  If  such  accumulation  is  directed  to  co:nraence  at  any  tim3  subsequent  to 
the  creation  of  the  interest  out  of  which  the  income  is  to  arise,  it  must  com- 
mence Avithin  the  time  iu  this  title  permitted  for  the  vesting  of  future  interests, 
and  during  the  minority  of  the  beneliciaries,  and  terminate  at  the  expiration  of 
such  minority. 

172 


717.  Leases  of  Land  for  Agricultural  or  Horticiilt 
Purposes  for  Over  Fifteen  Years  Invalid.  No  lease  or  g 
of  land  lor  agiieultural  [or  horticultural]  purposes  fc 
longer  period  than  [fifteen]  years,  in  which  shall  be  rese  ifc 
any  rent  or  service  of  any  kind,  shall  be  valid.  (In  e  |Jc 
60  days  from  and  after  April  19,  1909.  Stats.  190:\  C 
662.)  Civ.   Code, 


Title  II,  Chap.  IV.]  TEEMIXATIOX  OF  OWXERSHIP. 


i  725-739 


This  gection  relates  to  profits  deriverl  from 
pers(inal  |.r(i)»crty,  as  well  as  to  accumuLitioiis 
of  rents  aii-ing  out  of  real  estate:  EUait  of 
Biiirkhy   r)S  Cal.  4,-)7,  4S0. 

Ownership  of  undisposed  accumula- 
tions: See  bec.  7.').'>,  j)ost. 


Accumulations  liable  for  debts:  S^c.  ^'oO. 

Restraint  upon  dispo^itiou  of  beneSci« 
ary's  interest:  See  see.  607. 

Bequests  of  income:  See  post,  sees.  1357f 
subil.  o,  lofJG. 

Annuities:  See  same  sections. 


725.  Ollu^r  directions,  when  void  in  part. 

Sec.  725.  If  in  citlier  of  the  cases  mcntionecl  in  the  last  section  the  direc- 
tion for  an  acctlmulation  is  for  a  longer  term  than  during  the  minority  of  the 
beneficiaries,  the  direction  only,  whether  separable  or  not  fi'om  other  provisions 
of  the  instrument,  is  void  as  respects  the  time  beyond  such  minority. 

The  clause  from  "only  "to  "instrument"  is     See,  however,  Klnrj  v.  Jitiudle,  15  Barb.  139, 
new,  Init  is  sustained  by  Williams  v.  Williams,     145. 
8  N.  Y.  4'J5;  Kitjiatrick  v.  Johnson,  15  Id.  322. 

726.  Application  of  income  to  support,  etc.,  of  minot . 

Sec  72G.  "When  a  minor  for  whose  benefit  an  accumulation  has  been  directed 
is  destitute  of  other  sufficient  means  of  support  and  education,  the  proper 
court,  upon  a]Dplication,  may  direct  a  suitable  sum  to  be  applied  thereto  out  of 
the  fund. 


Maintenance  of  •ward  out  of  his  estate: 

See  Coilo  Civ.  I'l-oc,  sees.  1702,  1771.  "  Tlie 
provi.-.i()iis  of  section  1771  of  the  Code  of  Civil 
rroceUure  became  necessary  under  tlie  decision 


of  the  supreme  court  of  this  state  in  the  case 
of  Svift  V.  Swift,  40  Cal.  457:"  Code  commis- 
sioners' note. 


CHAPTER  III. 

EIGHTS  OF  OWNERS, 

732.  Increase  of  properly. 

Sec  732.     The  owner  of  a  thing  owns  also  all  its  products  and  accessions. 

Seegei)ei;iry2K  nt'sCcm.  .^O;  2  Dla.  Com.  404;  Bouv.  lust.  21,  29,  30. 
Access'oni  to  real  property:  See  sees.  1013  ct  seq. 
Accessions  to  personal  property:    See  sees.  1025  et  seq. 

733.  In  certain  cas''s,w]io  cnlitJed  to  income  of  property. 

S^c  7.>3.     "When,  in  consequence  of  a  valid  limitation  of  a  future  interest, 

there  is  a  suspension  of  the  power  of  alienation  or  of  the  ownership  during  the 

continuation  of  which  the  income  is  undisposed  of,  and  no  valid  direction  for 

its  accumulation  is  given,  such  income  belongs  to  the  persons  presumptively 

entitled  to  the  next  eventual  interest. 

Held  tc  apply  to  personal  property  in  G'.bnan-     son,  15  Id.  322;  but  see  Phelps  v.  Pond,  23  Id. 
V.  IttddtiKjtoii,  24  N.  Y..  19;  KdputrkL  v.  John-     S3. 


CHAPTER  rV. 

TERMINATION  OF  O'WNERSHIP. 
739.    Future  intereHs,  when  dfeated. 

Sec  739.  A  future  interest,  depending  on  the  contingency  of  the  death  of 
Kny  person  without  successors,  heirs,  issue,  or  children,  is  defeated  by  the 
bii'th  of  a  posthumous  child  of  such  person  capable  of  tailing  by  succession. 

Sta  s    1855,  171,  sec.  4.  or  "gmndcluMren:"  iSTwari  v.  A'/?;,'/,  Meigs,  149; 

A  child  en  ventre  sa  mere,  for  purposes  of    and  in  the  term  "persons  living  at  the  death" 

of  a  ceitain  person:  Uaicliusw  /,'ar:lius,  2  Con. 
Ch.  Cas.  425;  /]nrl:er  v.  Prarce,  .30  Pa.  St.  173; 
Groc  V.  Ilittt'iihery,  14  Ga.  2;52.  See  an  in- 
teresting review  of  the  history  and  present 
aspect  of  the  doctrines  connecteil  with  infanta 
en  ventre  xa  mere  in  the  note  to  Harper  v. 
Archer,  43  Am.  Dec.  472,  474. 

Posthumous  children:  See  sec.  G93, 


inher  tance,  or  wiiere  its  interest  will  he  ad- 
vance \  is  t'j  be  considered  as  living  at  the  time 
of  its  father's  death:  Crisfield  v.  Storr,  3(5  Md. 
129;  Grove  v.  Juttevberri/,  14  Ga.  232;  Mnrdlis 
V.  Thnl/iimer.  21  Am.  Dec.  GG;  Starlim/w  Price, 
16  Ohio  St,  29;  Land's  Appeal,  85  Pa.  St.  339. 
Thus  a  child  en  ventre  saniere  is  included  in  the 
term  '•  children : "  Petway  v.  Poioe'l,  2  Dev.  &  B. ' 
Eq.  308;  Crook  v.  liiU,  L.  R.,  3  Ch.  Div.,  773; 


173 


{§  740-749  PROPERTY  IN  GENERAL.       Pnr.  n,  Pakx  I,  Titlk  m. 

740.  Same. 

Sec.  740.  A  future  interest  may  be  defeated  in  any  manner  or  by  any  act  or 
means  which  the  party  creating  such  interest  provided  for  or  authorized  in  the 
creation  thereof;  nor  is  a  future  interest,  thus  liable  to  be  defeated,  to  be  on 
that  ground  adjudged  void  in  its  creation. 

741.  Future  interests,  when  not  defeated. 

Sec  741.     No  future  interest  can  be  defeated  or  barred  by  any  alienation  or 

other  act  of  the  owner  of  the  intermediate  or  procedent  interest,  nor  by  any 

destruction  of  such  precedent  interest  by  forfeiture,   surrender,   merger,   or 

otherwise,  except  as  provided  by  the  next  section,  or  where  a  forfeiture  is 

imposed  by  statute  as  a  penalty  for  the  violation  thereof. 

As  explanatory  of  this  section,  the  code  com-  clares  the  same  rule,  anrl  allows  an  estate  of 
missioiiers  say:  "A  contingent  remaintler,  re-  inheritance  or  freehold  to  commence  m /«<«ro.' 
quiring  by  common  law  a  particular  estate  to  Code  of  1824,  4o9;  see  4  Kent's  Com.  253- 
Eupport  it,  could  never  be  held  in  abeyance.  2oG.  Much  nice  learning  has  been  thrown 
If  the  particular  estate  terminated,  in  whatso-  around  the  subject  of  contingent  remainders, 
ever  manner,  before  the  remainder  could  vest,  and  many  nice  distinctions  and  refinements 
the  remainder  was  gone  forever.  A  freehold  have  accumulated;  but  in  many  of  the  states, 
could  not  commence  iufiituro.  It  followed  that  and  by  this  code,  future  interests  include  all 
if  the  ijarticulai'  estate  terminated  before  the  estates  in  expectancy,  vested  and  contingent, 
happening  of  the  contingency,  the  remainder  and  all  future  interests  are  descendible,  de- 
was  destroyed;  thus  the  particular  estate  might  visable,  and  alienable  in  the  same  manner  as 
be  destroyed  by  fire,  feoffment,  or  by  a  merger,  estates  in  possession,  so  that  a  thorough  exami- 
and  the  remainder  fall  with  it.  The  policy  of  nation  of  the  common-law  rules  concerning  re- 
legislation  generally,  however,  has  been  to  place  mainders,  and  the  delicate  (juestions  springing 
contingent  remainders  beyond  the  reach  of  ac-  tlierefrom,  must  be  esteemed  as  of  mure  interest 
cident  to  the  precedent  estate:  1  N.  Y.  R.  S.  in  sliowing  the  learning  and  scholarly  attain- 
725,  sees.  32,  .35;  so  in  Virginia:  See  1  Lo-  ments  of  the  early  law-writers  rather  than  aa 
niax's    Dig.  457.     Thus   the   New  York   stat-  of  any  practical  utility." 

ute  renders   expectant  estates   no   longer  de-  See  section  767  as  to  creation  of  future  es- 

pendent  on  the  cimtinuance  of  the  precedent  tates,   without   the   necessity  of  a   precedent 

estate,  and  the  revised  code  of  Missi&sippi  de-  estate  to  support  them. 

742.  Same. 

Sec.  742.     No  future  interest,  valid  in  its  creation,  is  defeated  by  the  deter 
mination  of  the  precedent  interest  before  the  happening  of  the  contingency  on 
"which  the  future  interest  is  limited  to  take  effect;  but  should  such  contingency 
afterwards  happen,  the  future  interest  takes  effect  in  the  same  manner  and  to 
the  same  extent  as  if  the  precedent  interest  had  continued  to  the  same  period. 


TITLE  III. 

GENERAL  DEFINITIONS. 

748.  Income,  what. 

Sec  748.  The  income  of  property,  as  the  term  is  used  in  this  part  of  the 
code,  includes  the  rents  and  profits  of  real  property,  the  interest  of  money, 
dividends  upon  stock,  and  other  produce  of  personal  property. 

749.  Time  of  creation,  what. 

Sec  749.  The  delivery  of  the  grant,  where  a  limitation,  condition,  or  fnture 
interest  is  created  by  grant,  and  the  death  of  the  testator,  where  it  is  ci-eated 
by  will,  is  to  be  deemed  the  time  cf  the  creation  of  the  limitation,  condition,  or 
interest,  within  the  meaning  of  this  part  of  the  code. 

174 


PABT  II,  Title  II,  Chap.  I.]        ESTATES  IN  GENEEAL,  §§  755-762 


PART  n. 

REAL  OR  IMMOVABLE  PROPERTY. 

Title  I.     General  Provisions 755 

II.     Estates  in  Real  Property 7G1 

III.     Rights  and  Obligations  of  Owners 813 

rV.     Uses  and  Trusts 847 

V.    Powers 878 

TITLE  I. 
GENERAL  PROVISIONS. 

755.   Law  governing  real  property . 

Sec.  755.  Real  property  within  this  state  is  governed  by  the  law  of  this  state^ 
except  where  the  title  is  iu  the  United  States.  [Amendment^  approved  March  30» 
1874;  Amendments  1873-4,  218;  took  effect  July  1,  1874.] 

Territorial  jurisdiction  of  the  state:  See  Pol.  Code,  sees.  33,  34. 

TITLE  II. 
ESTATES  IN  REAL  PROPERTY. 

Chapter  I.     Estates  in  General , ,   7G1 

II.     Termination  of  Estates 789 

HI.     Servitudes 801 

CHAPTER  L 

ESTATES  IN  GENERAL.. 

761.  Enumeration  of  estates. 

Sec.  7G1.  Estates  in  real  property,  in  respect  to  the  duration  of  their  enjoy- 
ment, are  either: 

1.  Estates  of  inheritance  or  perpetual  estates; 

2.  Estates  for  life; 

3.  Estates  for  years;  or, 

4.  Estates  at  will. 

See  sec.  7G5.  at  will:   Mitchell  v.  Davis,  20  Id.  45.     A  ten- 

"'Estates   at   sufiferance'   are   included    in  ancy  at  will  cannot  exist  without  some  express 

the  phrase  ' estates  at  will:'"    Commissiouers'  grant,  or  contract:  Blum  v.  L'obcrtson,  2i  Id. 

note.  127.     In  Moore  v.  Morrow,  28  LI.  551,  it  ia 

If   the  owner    permits   another    to    occupy  s.iid  that  a  tenancy  by  sufferance  ia  not  by  the 

land  without  any  lease  or  agreement    to  pay  consent  but   by  the  laches  of  tlie  owner;  as, 

rent,  and  such  other  merely  ti^kes  care  of   it  for  example,  in  the  common  law,  where  a  tcn- 

for  the  owner,  he  is  a  tenant  at  will:  Joves  v.  ant  lield  over  after  the  expiratitm  of  his  lease: 

Sh'iy,  .50  Cal.  508.     A  mere  servant  or  agent  iu  (Jridia-i  v.  Morrcll,  25  Id.  31;  and  so  McCarthy 

possession  of  his  principal's  laud  is  not  a  tenant  Yale,  3d  Id.  585. 

762.  Estates  in  fee. 

Sec.  7G2.     Every  estate  of  inheritance  is  a  fee,  and  every  such  estate,  when 

not  defeasible  or  conditional,  is  a  fee-simple,  or  an  absolute  fee.     [Amendiyient, 

approved  March  30, 1874;  Amend nienfs  1873-4,  218;  took  effect  July  1,  1874.) 

"  2  Shars wood's    Bla.    Com.    106;     Plowd.  any  class  of  conditional  estates:  "  Commission- 

557;    1    Preston    on    Estates,    425;    1    Wash-  ers'  note. 

burn  on  Real  Property,  51.     Ihe  word  'sim-  Transferring  fee,  words  of  inheritance 

pie'   does    not  add   significance.     It  is   used  not  essential:  See  sec.  lOl'l,  post. 

merely  to   mark   more   fully   the   distinction  Devising  fee,  "  heirs  "  not  essential:  Sec. 

between  an  unq^ualitied  fee  and  a  fee-tail,  or  1329. 

175 


f§  763-768  REAL  OR  IMMOVABLE  PROPERTY.  [Drv.  IT,  Part  II. 

TSS.    CnndiUonalfccs  and  estates-tail  abolished. 

Sec.  7C3.     Estates- tail  are  abolished,  and  every  estate  •which  would  be  at 

common  law  adjudged  to  be  a  fee-tail  is  a  fee-simj)le;  and  if  no  valid  remainder 

is  limited  thereon,  is  a  fee-simple  absolute. 

"An  heritaWe  estate  which  will  rlescend  to  our  act  adopting  the  comnvon  law  ii-Kjlnded  the 

•certain  classes  of  heirs  is  ca'led  an  'estate  in  fee-  conditional  fee  at  common  law  or  iKs  successor, 

tail,' or  ;in   'estate-tail.'     The  words  'heirs  of  the  fee-tail  under  tlie  statute  de  dniis.      The 

the  i)ody  <if, 'etc.,  were  the  proper  words  ere. itin'^  codes  supersede  both,  and  hence  hotii  are  named 

such  an  estate:    1  Wasld).  on  Real  Prop.  51,  GG;  as  aholisliod."     The  above  section  in  the  pro- 

Bouv.   Law  Diet.,  tit.    'Estate  in    Fee-tail:'"  posed  code  included  "conditional  fees  at  cotn- 

Conimissioncrs'note.  In  thedianghtof  tlie  co  le  mon    law   and   estates   under   the   statute    de 

is  also  the  following:  "  It  is  not  certain  whether  donis." 

764.  Certain  remainders  valid. 

Sec.  TG-Jr.  "Where  a  remainder  in  fee  is  limited  upon  any  estate  which  would 
by  the  common  law  be  adjudged  a  fee-tail,  such  remainder  is  valid  as  a  con- 
tingent limitation  upon  a  fee,  and  vests  in  possession  on  the  death  of  the  lirst 
taker,  without  issue  living  at  the  time  of  his  death. 

765.  Freeholds— Chattels  real — Chattel  itd/^resfs. 

Sec.  7G5.     Estates  of  inheritance  and  for  life  are  called  estates  of  freehold^ 

estates  for  years  are  chattels  real;  and  estates  at  will  are  chattel  interests,  but 

are  not  liable  as  such  to  sale  on  execution. 

Estates  for  years,  cliattels  real:  Pu<i><^cy  Estates  at  will,  chattel  interests,  but  not 
V.  Aikpti,  1 1  N.  V.  49S;  Aivr.'U  v.  Tajlor,  8  Id.  lial)le  to  sale  on  execution:  DuLin.sou  v.  Siailh, 
52;  Big-low  v.  Finc/i,  17  Barb.  390.  25  Barb.  108;  Bvjeiow  v.  FincJi,  11  Id.  498. 

768.    Estate  for  life  of  a  third  person  a  freehold. 

Sec.  7GG.     An  estate  during  the  life  of  a  third  person,  whether  limited  to 

heirs   or   otherwise,  is   a   freehold.     [Amendment,    approved   March    30,  1874; 

Amendments  1873-4,  218;  took  effect  Jabj  1,  1874.] 

"Correspondsto  estate p^r a7?/re  fi'e.' 1  Wash b.  the  life  of  a  third  person,  whether  limited  to 

on  Real  Prop.  88;  2  S bars.  Bla  Com.  I  "JO;  Moshfr  heirs  or  otherwise,  is  a  freelioldonly,  duriui^  the 

V.    Yost,  S'^  Barl).   277:"  Commissioners'  note,  life  of  the  grantiie  or  devisee.     After  his  death 

The  original  section  read:  "Au  estate  during  it  is  a  chattel  real." 

'767.    Future  estates,  what. 

Sec.  7G7.     A  future  estate  may  be  limited  by  the  act  of  the  party  to  commence 

in  possession  at  a  future  day,  either  without  the  intervention  of  a  precedent 

estate,  or  on  the  termination,  by  lapse  of  time  or  otherwise,  of  a  precedent 

estate  created  at  the  same  time. 

Future  estates:  See  note  to  sec.  741,  mite,  says  Chancellor  Walworth,  'include  every  pros- 

and  sec.  742.     "The  definition  in  this  section  ent  right  and  interest,  either  vestwl  or  contin- 

compruhends  evei'y  s[iecies  of  t:xpectant  estates  gent,  wiiich  may  by  possibility  vest  at  a  future 

created    liy  the  act  of   the  p uty,   remdnders  day:'  Lmrrciici'  v.  Baijard,  7  Paige,  70;"  Com- 

strict'y  so  called,  future   uses,  and  execiitoiy  niissioners'  note. 

devises.     Toe  words,  with  or  without  tlie  in-  Tiie  above  section  does  away  with  tlic  com- 

tervention  of  precedent  estate,  embrace  v.liat  mon-law  rule,  whicli  was  in  force  in  this  state 

are  teciinicad}' known  as  estates  i/ty(//«ro.     Tlie  prior  to  the  ado[)tion  of  tlie  code,  thatatiee- 

words  '  lapse  of  time  or  otherwise  '  provide  for  ho'd  could  not  be  created  to  commcnee  iiij'iiinro: 

contingent  Imitations  operating  to  abridge  or  7/«;yp.s  v.  <S'^'/^/)//(.s',  49Cal.  374;  seealso  sec.  773, 

defeat  the  prior  estate:  Nlcoll  v.  N.  Y.  A  Erie  infra.     Freeholds  commencing  in  fiduro:   ijee 

R.  JR.,  12  N.  Y.  121,   139.     Expectant  estates,  also  (Jluindltr  v.  Chandler,  55  Cal.  '207. 

768.    Reve.rsio7}s. 

Sec.  7GS.     A  reversion  is  the  residue  of  an  estate  lefb  by  operation  of  law  in 

the  gi'antor  or  his  successors,  or  in  the  successors  of  a  testator,  commencing  in 

possession  on  the  determination  of  a  particular  estate  granted  or  devised. 

Right  to  an  estate  in  reversion  becomes  terminates  the  intermediate  estate:  JIawes  v. 
absolute  ou  the  happening  of  the  cveut  which     Latliroii,  33  Cal.  493. 

176 


^5DrrLE  n,  Chap.  I.]  ESTATES  IN  GENERAL.  §§  709-775  ., 

769.    Remainders. 

Sec.  7G9.  When  a  future  estate,  other  than  a  reversion,  is  dependent  on  a- 
precedent  estate,  it  may  be  called  a  remainder,  and  may  be  created  and  trans-,- 
ferred  by  that  name. 

T70.    Limitations  of  chattels  res.1. 

Sec.  770.  The  absolute  ownership  of  a  term  of  years  cannot  be  suspended' 
for  a  longer  period  than  the  absolute  poAver  of  alienation  can  be  suspended  in 
respect  to  a  fee.  [Ame7\dm'-nt,  approved  Mardi  30,  1874:;  AmendmenUilii~'^^-4t^ 
218;  took  effect  Juhj  1,  1874.] 

771.  Su-^pension  by  trust. 

Sec.  771.  The  suspension  of  all  power  to  alienate  the  subject  of  a  trnst,  other 
than  a  power  to  exchange  it  for  other  property  to  be  held  upen  the  saipe  trust, 
or  to  sell  it  and  reinvest  the  proceeds  to  be  held  upon  the  same  trust,  is  a  sus- 
pension of  the  power  of  alienation,  within  the  meaning  of  section  seven  hundred"' 
and  fifteen. 

Exchanging  property. — A  power  author-  and  was  inserted  ffOiN  abundant  caution,  lest 

izing  the  excliatige  of  the  land  held  in  trust  for  it  iiiiglit  he  held  that  the  latter  section  cuiild  ba 

other  land  to  Ihj  held  subject  to  tlie  same  trust  avoided,  and  a  perpetuity  created,  l)y  simply  . 

is  valiil:  Bilinont  v.  O'Bj'ieii,  12  N.  Y.  ;i94;  see  authorizing  a  cliauge  in   the  character  of    tha 

£ooser'elt  v,  Hoosfrell,  6  llun,  HI;  S.C.,G4N.  Y.  property  constituting  the  subject  of  the  trust. 

651;  y/rtif/y  V.  ./o?iPs,  5  I'aige,  318,  44-4;  J/(f?vju  SectiDU  771   is    merely  declaratory  of  tlio  law. 

V.  Smith,  i)G  ]5arb.  GOO,  GOo;  Fellows  v.   ,'/?>-r-  as  laid  down  in  ffniNfi)  v.  James.  5  t'aige,  444t 

TOOrt>.',  4  Lans.  2:50;  (>u;/c?'v.  ./o">'.s,  ISBarb.  4G7.  S.  C,  IG  Wend.  iOS:."  Estate  of  Uiucldey,  iS -* 

"Section  771  is  to  be  read  with  section  715,  Cal.  457,  481. 

772.  Contingent  revminder  in  fee. 

Sec.  772.  A  contingent  remainder  in  fee  may  be  created  on  a  prior  remainder 
in  fee,  to  take  efi'ect  in  the  event  that  the  persons  to  whom  the  first  renin inder 
is  limited  die  under  the  age  of  twenty-one  years,  or  upon  any  other  contingency 
by  which  the  estate  of  such  persons  may  be  determined  before  they  attain 
majority. 

773.  Remainders,  future  and  contingent  estates,  how  created. 

Sec  773.  Subject  to  the  rules  of  this  title,  and  of  Part  I.  of  this  division,  a. 
freehold  estate,  as  well  as  acliatte]  i*eal,  may  be  created  to  commence  at  a  future 
day;  an  estate  for  life  may  bo  created  in  a  term  of  years,  and  a  remainder  lim- 
ited thereon;  a  remainder  of  a  freehold  or  chattel  real,  either  contingent  or 
vested,  may  be  created,  expectant  on  the  determination  of  a  term  of  years;  and 
a  fee  may  be  limited  on  a  fee,  upon  a  contingency,  which,  if  it  should  occur, 
must  happen  within  the  period  prescribed  in  this  title. 

774.  Limitation  of  successive  estates  for  life. 

•  Sec.  774.  Successive  estates  for  life  cannot  be  limited,  except  to  persons  in 
being  at  the  creation  thereof,  and  all  life  estates  subsequent  to  those  of  persons 
in  being  are  void;  and  upon  the  death  of  those  persons  the  remainder,  if  valid 
in  its  creation,  takes  effect  in  the  same  manner  as  if  no  other  life  estate  liad 
been  created.  [Amendment,  approved  March  30,  1874;  Amendments  ld)To-4i,  219; 
took  effect  July  1,1^14..] 

775.  Remainder  upon  estates  for  life  or  term  of  years. 

Sec.  775.  No  remainder  can  be  created  upon  successive  estates  for  life,  pro- 
vided for  in  the  preceding  section,  unless  such  remainder  is  in  fee;  nor  can  a 
remainder  be  created  upon  such  estate  in  a  tarm  foi-  yeai-s,  unless  it  is  for  the 
"whole  residue  of  such  term.  [Amendment,  approved  March  30,  1874;  Ameiid- 
ments  1873-4,  219;  took  effect  July  1,  1874.  J 
Civ.  CouK— 12  177 


§§  776-789  REAL  OR  IMMOVABLE  PROPERTY.  [Div.  II,  Part  II, 

T76.    Contingent  remainder  on  a  term  of  years. 

Sec.  77G.  A  contingent  remainder  cannot  be  created  on  a  term  of  years,  unless 
the  nature  of  the  contingency  on  which  it  is  limited  is  such  that  the  remainder 
must  vest  in  interest  during  the  continuance  or  at  the  termination  of  lives  in 
being  at  the  creation  of  such  remainder. 

777.  Remainder  of  estates  for  life. 

Sec.  777.  No  estate  for  life  can  be  limited  as  a  remainder  on  a  term  of  years, 
except  to  a  person  in  being  at  the  creation  of  such  estate. 

778.  Hnnainder  upon  a  contingency. 

Sec.  778.  A  remainder  may  be  limited  on  a  contingency  which,  in  case  it 
should  happen,  will  operate  to  abridge  or  determine  the  precedent  estate;  and 
every  such  remainder  is  to  be  deemed  a  conditional  limitation. 

Conditional  limitation. — The  great  distinc-  tlie  expiration  of  an  estate  by  tlie  limitation,  it 
tion  between  a  condition  and  a  conditional  at  once  ceases,  and  tlie  next  estate  in  e.xpect- 
limitation  is,  that  to  render  a  condition  effect-  ancy  at  once  vests:  See  1  Sharswootl  &  Budd's 
ive  to  terminate  the  estate  to  which  it  is  Leading  Cases  on  Real  i*ro[).  188,  143,  where  the 
attached,  it  must  be  taken  advantage  of  by  subject  of  forfeiture  and  entry  ia  considered. 
Bome  act  of  the  grantor  or  his  heirs,  while  on         See  sec.  780,  infra. 

779.  Heirs  of  a  tenant  for  life,  lohe^  to  take  as  purchasers. 

Sec.  779.     "When  a  remainder  is  limited  to  the  heirs,  or  heirs  of  the  body,  of 
ra  person  to  whom  a  life  estate  in  tlie  same  property  is  given,  the  persons  who, 

•  on  the  termination  of  the  life  estate,  are  the  successors  or  heirs  of  the  body  of 
•the  owner  for  life,  are  entitled  to  take  by  virtue  of  the  remainder  so  limited  to 
itheui,  and  not  as  mere  successors  of  the  owner  for  life. 

Rul3  in  Slielleys  Case  abolished. — For  tion  in  this  country.     The  policy  of  the  rule  ia 

.  examiles  arising   under    the  ride    in  Sh/^Uey's  not  consistent  with  our  institutions,  and  there- 

•  Case  prior  to  its  alirogation  by  the  code,  see  fore  the  rule  itself  is  now  generally  abolished. 
JVorr/s  V.  Ilcnlcy,  27  C;d.  ."W;  E-fta  e  of  Uiz,  43  See  a  consideration  of  the  prevalence  of  the 
Id.  201.  The  aljove  provision  of  the  code  is  in  rule  in  Shelley's  Case  in  this  country  in  the 
harmony  with  the  prevailing  spirit  of  legisla-  note  to  Pvlk  v.  Farts,  30  Am.  Dec.  400,  415. 

'780.    Construction  of  certain  remainders. 

Sec.  780.  "When  a  remainder  on  an  estate  for  life  or  for  years  is  not  limited 
on  a  contingency  defeating  or  avoiding  such  precedent  estate,  it  is  to  be  deemed 
intended  to  take  effect  only  on  the  death  of  the  first  taker,  or  the  expiration,  by 
lapse  of  time,  of  such  term  of  years. 

781.    Effect  of  power  of  appointment. 

Sec.  781.  A  general  or  special  power  of  appointment  does  not  prevent  the 
vesting  of  a  f  utux'e  estate  limited  to  take  effect  in  case  such  power  is  not  executed. 


CHAPTER  II. 

TERMINATION  OF  ESTATES. 

789.    Tenancy  at  will  may  be  terminated  by  notice. 

Sec.  789.  A  tenancy  or  other  estate  at  will,  however  created,  may  bo  termi- 
nated by  the  landlord's  giving  notice  in  Avriting  to  the  tenant,  in  the  manner 
prescribed  by  section  eleven  hundred  and  sixty-two  of  the  Code  of  Civil  Pro- 
cedure, to  remove  from  the  premises  within  a  period  of  not  less  than  one  month, 
to  be  specified  in  the  notice. 

Termiaatins;  estate — Action  for  unlaw-  bringing  ejectment  without  further  notice,  or 
fill  detainer. — Under  the  provisions  of  this  by  an  action  of  unlawful  detainer,  after  first 
section  the  landlord  may  terminate  the  estate  having  laid  the  foundation  for  the  action  by 
at  will  by  giving  the  specified  iiotic;  of  it  least  giving  the  three  days'  notice  prov-ided  for  in 
one  month;  the  landlord  then  has  a  right  to  re-  section  791.  This  tnree  daj';^  nocicc;  is  essen- 
«uter.     He  may  enforce  this  right  either  by    tial,  and  cannot  be  waived  by  the  defendant. 

178 


Title  II,  Chap.  III.]  SERVITUDES.  §§  790-801 

TIio  action  of  unlawful  detainer  "cannot  he  possession;  and  these  things  must  be  made  to 

maintained  to  recover  possession  from  tenants  appear  by  express  averments  in  the  co:nplaint:" 

at  will  without  lirst  terniinating  the  tenancy  Martin  v.  SpUr'ilo.  r.6  Cal.  128;    Kiiirj  v.  Con- 

liy  giving;  at  least  thirty  days'  notice  in  writ-  ne/h/,  51  Id.  181;  Sniilh  v.  //iU,  G3  Id.  51. 
ing,  and'after  the  termination  of  the  tenancy         Changing  terms  of  tenanoy:  See  sec.  827, 

three  days'  uotice  in  writing  to  surrender  the  post. 

790.  Effect  of  notice. 

Sec.  790.  After  such  notice  has  been  served,  and  the  period  specified  by  such 
notice  lias  expired,  but  not  before,  the  landlord  may  re-enter,  or  proceed  accord- 
ing to  law  to  recover  possession. 

791.  Ro-entnj,  lohen  and  hoiv  to  be  made. 

Sec.  791.  "Whenever  the  right  of  re-entry  is  given  to  a  grantor  or  lessor  in 
any  grant  or  lease,  or  otherwise,  such  re-entry  may  be  made  at  any  time  after 
the  right  has  accrued,  upon  three  days'  notice,  as  provided  in  sections  eleven 
hundred  and  sixty-one  and  eleven  hundred  and  sixty-two,  Code  of  Civil  Pro- 
cedure. 

See  note  to  sec.  789. 

792.  Summary  proceedings  in  certain  cases  provided  for. 

Sec.  792.  Summary  proceedings  for  obtaining  possession  of  real  property 
forcibly  entered,  or  forcibly  and  unlawfully  detained,  are  provided  for  in  sec- 
tions eleven  hundred  and  fifty-nine  to  eleven  hundred  and  seventy-five,  both 
inclusive,  of  the  Code  of  Civil  Procedure. 

793.  Notice  not  necesmri/  before  action. 

Sec.  793.     An  action  for  the  possession  of  real  property  leased  or  granted, 
with  a  right  of  re-entiT,  may  be  maintained  at  any  time,  in  the  district  court, 
after  the  right  to  re-enter  has  accrued,  without  the  notice  prescribed  in  sectia 
Beveu  hundred  and  niuety-one. 

CHAPTER  III. 

SERVITUDES. 
801.    Servitudes  attached  to  land. 

Sec.  801.  The  following  land  burdens,  or  servitudes  upon  land,  may  be 
attached  to  other  land  as  incidents  or  appurtenances,  and  are  then  called  ease- 
ments: 

1.  The  right  of  pasture; 

2.  The  right  of  fishing; 

3.  The  right  of  taking  game; 
4    The  right  of  way; 

5.  Tlie  right  of  taking  water,  wood,  minerals,  and  other  things; 
G.  The  I'ight  of  transacting  business  upon  land; 

7.  The  right  of  conducting  lawful  sports  upo^  land; 

8.  The  right  of  receiving  air,  light,  or  heat  from  or  over,  or  discharging  tl* 
same  upon  or  over  land; 

9.  The  right  of  receiving  water  from  or  discharging  the  same  upon  land; 

10.  The  right  of  flooding  land; 

11.  The  right  of  having  water  flow  without  diminution  or  disturbance  of  any 
kind ; 

12.  The  right  of  using  a  wall  as  a  party- wall; 

i:J.  The  right  of  receiving  more  than  natural  support  from  adjacent  land  or 
things  affixed  thereto; 

179 


§801 


REAL  OR  IMMOVABLE  PROPERTY. 


[Div.  II,  Part  II, 


14.  The  right  of  having  the  whole  of  a  division  fence  maintained  by  a  coter- 
minous owner; 

15.  The  right  of  having  public  conveyances  stopped,  or  of  stopping  the  same 
on  land; 

IG.  The  right  of  a  seat  in  church; 
17.  The  right  of  burial. 

Easements  and  ssrvitudas. — These  terms,  stances  of  the  case.  If  a  man  grants  to  another 
used  by  the  common-law  writers,  ofttimes  a  piruel  of  laml  entirely  siirroumlcd  l)y  other 
indiscriuiiiiately,  are  "listinguished  in  t!ie  code,     land  of  the  grantor,  or  p  irtly  by  land  of  the 


in  the  maimer  now  generally  recognized,  "  ease 
ment"  referring;  to  tlie  right  enjoyed;  "  servi- 
tude" to  the  burden  imposfd:  See  sec.  802, 
infra;  Washh.  on  Easements,  sec.  5.  An  ease- 
ment is  not  to  be  confounded  with  a  license;  the 
former  implies  an  incerest  in  the  land  in  or  over 
which  it  is  to  be  enjoyed,  the  latter  carries  no 
such  interest:  Id.;  2  Wait's  Act.  &  Def.  GjG. 
It  i.a  to  be  observed  that  tlie  above  enumera- 


grantoraiid  partly  by  Ian  I  of  a  stranger,  a  way 
of  necessity  arises  in  favor  of  the  grantee  over 
the  grantor's  land:  Tcnilor  v.  Wamakif,  5-3  Id. 
330;  Plen-c.  v.  S^'irk.  JS  Conn.  X)\;  'M'<r.<hnll 
V.  Tnimb'inr2Sh].  lSr>;  Lawton  v.  Rrn-.-i,  13 
Am.  Dec.  7H;  A''py  v.  Cnrlrtm,  20  Te.x.  78: 
Piiiiirfo  V.  McDuffic,  50  N.  II.  306.  A  riglit  of 
way  by  necessity  cnimot  be  raiseil  by  giant  out 
of  the  lands  of  a. stranger;  it  can  only  l)e  across 


tion   includes  those   classes  commonly   known  Lands  granteil  or  resei-ved  liy  the  grantor:  Oil 

as  easi  ments,  and  jirqfil-:  a  prendre  as  well.  ver  v.  I/oo'.-,  47  Md.  3;)1.     A  way  liy  necessity 

Subd.  1.     Riglit  of  pasture. — A  leserva-  is  conceded   by  law  rs  a  matter  of  jiresnmed 

tion  in  a  deed  of  the  "  grass,  iierbage,  feeding,  intention  of  the  parties:  American  Co.  v.  /Jrcul- 

and  pasturage "  creates  an   easement   in   the  fonl,  27  Cal.  oGtJ;  jV  r/t'-As  v.  Luce,  24   Pick, 

grantor's   favor   upon    the  acce]>tance  of    tiie  102;   Co'llna  v.   Ih-enihe,    1,')  Conn.    30.     And 

deed:  lioxe  v.  Barm,  2]  N.  Y.  273.     A  right  of  where  this  intention  cannot  l)e  iiresumcl,  tliere 

common  in  anotlier  man's  land  is  an  easement:  beint;  no  express  grant,  implied  i-eservation,  or 


ThomiiH  V.  Mar.^/iJteU,  10  Pick.  3G4;  LcviiKjston 
V.  Ten  Broeck,  IG  Ji>lins.  '15. 

Subd.  2.  R'.glit  to  fish  in  a  no!)-navigablc 
stream  is  primarily  in  the  o^^^ler  of  the  Swil  to 
the  exclusion  of  the  pnlilic:  Water!*  v.  LV^eij, 
IG  Am.  Dec.  333;  Commomceallh  v.  Chaplii, 
]G  II.  38G;  Hooker  v.  Cummiji/j^,  11  Id  249. 
Biit  this  ri_:ht  may  be  acquired  by  another: 
AVushb.  on   Easements,  sees.  410  et  sef|.     The 


presjcriptive  iii^ht,  snch  a  wiiy  by  necessity 
cannot  arise:  E^nioinl  v.  Cheii\  15  C.il.  I.']/; 
Carey  v.  AVw,  38  Id.  139.  While  wliat  is  a 
"necessity  "  seems  to  be  a  matter  of  some  un- 
certainty, all  the  cases  hold  tliat  mei-e  con- 
venience will  not  be  sulliiient  to  raise  ^nch  an 
easement:  ('(ir<y  v.  Uae,  supri;  and  the  more 
modei'n  adjudications  favor  the  view  that  a  way 
by  necessity  is  one  "not,  perhaps,  of  absolute 
right  of  fishing  in  navigable  waters  is  common  physical  U'cessity,  but  of  reasimable  necessity 
to  all.  except  an  exclusive  rigiit  he  acquired  by  as  distinguislied  from  me-e  convenience:"  ])ill- 
an  individual  l)y  grant  or  by  |irescription:  Id.,  man  v.  llolTinnii.  38  Wis.  .373;  Petlim/'ll  v. 
sec.  412;  /.'o/rrs  v.  Joiiex,  19  Am.  Dec.  493;  PoWpr.  8  Allen,  1;  OH  if- r  v.  I'dmai),  S)S  Mnsa. 
De:.  ,{■  M,l.  iry  Co.  V.  Stump.  20  Id.  3G1.  50;  lloHeubcrk  v.  McDowild,  1 12  Id.  230;  />Vrry 

Subd  4.  Riglit  of  way.— A  right  of  way  v.  liruici,  G  CoMw.  OS;  O' Horke  v.  S^nilh.  11 
mu.st  spring  from  an  express  grant,  or  from  R.  I.  2G4.  No  riglit  of  way  through  granted 
an  implied  reservation,  or  from  a  user  for  a  premi'<es  will  lie  implied  in  favor  of  tlie  grantor, 
length  of  time  sufficient  to  create  a  prescrip-  where  he  h;is  access  to  the  portion  i-esvrvcd, 
tion,  or  a  bar  under  the  statute  of  Imita-  otlier  than  over  that  granted:  Rumtrez  v.  Mo- 
tions, either  of  which  is  presumiitivc  iviilence     Cormic,  4  Cal.  243. 

of  a  grant:  Carey  v.  Ihw,  58  Cal.  130.  As  If  away  for  tlie  benefit  of  the  parcel  con- 
a  general  princijile,  which  this  i\3cision  does  veyed  existed  before  the  conveyance,  tlie  same 
not  contravene,  a  right  of  way  may  be  created  must  l)e  continued  if  reasonaldy  convenient: 
either  by   grant,  by  necessity,  or  by  prescrip-     l'eiiiihi;iliiii   v.   OaUnml,  0    Exch.    1.     If  it   be 


tion:  lAvcton  v.  Jliver.^,  13  Am.  D;c.  741. 
When  sought  to  be  established  by  g-ant,  the 
instrument  in  writing  is  the  pro[)er  evidence  of 
the  existence  of  tiie  easement,  and  upon  its 
construction  will  the  extent  of  the  right  be 
determined:  Garland  v.  Farber,  47  N.  M.  334; 
Maxwell  v.  McAfee,  9  IJ.  Mon.  20;  Gale  on 
Easements,  87.  A  riglit  of  way  is  an  interest 
in  land  transferable  only  by  writing:  Wayii'^r 
v.    Ilaiiva,  .38  Cal.   111.     If  an  owner  of  two 


tracts  of  land  sella  one  with  a  right  of  way     Luce.  21  Pick.  10 


designated  as  new,  the  I'ight  of  selection  as  to 
place  lies  with  the  owner  of  the  land  over 
whicli  itiito  pass:  Ri(<set  v.  Jarkxov,  2  Pick. 
574;  Capers  v.  WVson,  3  McCord,  170:  llotme.s 
V.  Seel  y,  10  Wend.  307;  Smiles  v.  Jlax'iiirj.'i, 
24  IJarb.  44  But  if  tlio  <>wiier  fails,  upon  re- 
quest, to  designate  such  way,  the  party  having 
tlic  right  to  ib  may  make  the  selection,  having 
due  regard  to  the  interests  of  the  owner: 
Ifolmes  V.   Secley,   19  Weud.  507;  NichoU  v. 


over  the  otlier,  and  reserves  a  right  of  way  over 
the  sold  tract,  eacii  is  a  dominant  estate  with 
res])cct  to  the  right  of  way  across  the  otlier: 
Id. 

W'ly  hy  necesK-fy.—As  a  general  rule,  when  a 
party  gr.ints  a  thing  he  grants  by  implication 
wlnitever  is  necessary  to  its  benelicial  enjoy- 
ment: Cave  V.  Cra/t-t,  53  Cal.  133;  an.l  see  sec. 
1 104.  posl.  Whetlier  upon  a  grant  a  way  of  ne- 
cessity will  arise  must  depend  upon  tlie  circuni- 


When  tlie  necessity  ceases,  the  way  thereby 
occasioned  ceases  also:  Lid''  X.  Iladley,  3G  Ala. 
G27:  VI  dl  V.  Carpenter,  14  Gray,  12G. 

T/ie  dominant  oiu  m' h'ts  no  ri/hl  to  po^'-iess 
(he  land  upon  whicli  the  servitude  is  imposed. 
The  owner  of  tlie  servient  tenement  is  in  law 
in  possession  of  the  land:  La-hman  v.  Bir- 
nctt,  2  West  Coist  Rep.  230  (Mev.). 

Subd.  5.  Riglit  tD  ta'x3  wood,  minarala, 
eto. — One  may  have  an  casement  to  dig  and 


180 


Title  II,  Cuap.  III.] 


SERVITUDES. 


§801 


carry  away  ore  in  tract  of  land:  GJovhigrr  v.  Duer,  536;   TTicatt  v.  Morria,  10  Ohio  St.  52.3; 

FraiiL/in    Coal  Co.,   55   Pa.   St.    9;    Arnold  v.  Ph'lips  v.  Bordmnn,  4  Allf-n,  147. 

Slercvx,  24  Pick.    lOD;  UcaU:i  v.   iln',jor>i,  17  Subd.  13.     Lateral  support:  See  sec.  832, 

Iowa,  IIG;  to  take  sea-weed:  Phil  ipsv.  j:ho(!es,  po^t.  and  note. 

7  Met.  322;  Xndd   v.  llobb<,  17  N.  H.  527:  to  Subd  14.    Division  fence.— There  may  be 

dig  stones:    Worcester  v.    Green,  2  Pick.  425;  a  valid  prescription  by  which  tlie  owner  of  land 

Greii  V.  Putnam,  8  Cusli.  222.  becomes  bouml  to  maintain  the  division  fence 

Subd.  6.     Transact  bus:n?ss,   rfglit  to. 


between  himself  and  the  adjoining  proprietor: 
Adams  V.  Van  Alslj/iie,  25  N.  Y.  2.35;  Bur.iey 
V.  Proprietors  in  JJiill,  5  Pick.  503;  Starr  v. 
JioLenbi/,  I  Salk.  3S5.  Wliyn  created,  such 
easenitnt  inures  to  the  benefit  of  every  jiorlijn 
of  t!ie  dominant  tenement:  UHls  v.  Miller,  3 
Pai-e,  254;  Child   v.  Chappdl,  9  N.  Y.   24G; 


One  may  have  an  easetncnt  to  pile  logs  and 
lumber  on  land  used  as  a  mill  yard  for  ihe  ac- 
commodation of  a  saw-miil:  Carney  v.  Ford,  2 
Allen,  57iJ;  Voorhees  v.  Barchard,  ti  Lans.  17G; 
to  place  merchandise  upon  land,  and  s\\  ing  the 
bales  and  bo.vcs  into  a  store  hy  a  windlass:  7i'(VA- 

ardson  v.  Pond,  15  Gray,  300;  to  hang  clothes    Adams  v.   Van  Alstyne,  mtpra. 
in  another's  yard:  JJreivell  v.  Towler,  2  Barn.  &         See  also  sec.  841,  jiosf,  and  note. 
Adol.  735.  Subd.  15.    Kavinj  publio  conveyanoes 

Subd.  8.  Easement  of  light  and  air:  See  stoppsd. — An  agreement  made  by  a  railroad 
the  note  to  Story  v.  Odin,  7  Am.  Dec.  49,  company  with  a  person  owning  land  adjacent 
wht-rc  it  is  shown  that  the  English  dot;trine  to  its  track,  to  establisli  and  maintain  a  pcrma- 
Tvith  iesi)cct  to  an  easement  of  light  and  air  by  nent  turn-out  track  and  stopping-place  at  a 
prescription,  witli  few  exceptions,  docs  not  ex-  particular  point,  and  to  stop  there,  is,  in  sub- 
ist  i;i  tills  country.  Easement  of  ligiit  and  air  stance,  the  grant  of  an  easement  or  servitude, 
is  presumed  to  follow  premises  conveyed  so  as  to  binding  upon  t!ie  property  of  the  company  as 
prevent  tlie  grantor  from  using  adjoining  land     the  servient  tenement  for  the  benefit  of  tiie  ad- 

jacent  owner  and  of  all  those  who  shall  succeed 
him  in  his  estate  as  owners  thereof:  Pllkln  v. 
/..  /.  /.'.  Pu  Co.,  2  Birb.  Ch.  221;  Day  v.  N.  Y. 
Cent.  n.  n.,  31  Barb.  548. 

Subd.  16.  Paw-holdsrs,  ri§lit  ot— In  the 
absence  of  statute  declaring  them  real  or  per- 
sonal estate,  pews  are  generally  regarded  aa 
partaking  of  the  nature  of  realty:   Kimball  v. 


60  as  to  disturb  such  easement:  See  Berkeley 
V.  Smith,  27  Gratt.  SOS,  and  note  to  /lobeson  v. 
PetluKjer,  32  Am.  Dec.  410.  For  a  further  con- 
sidcn.tiou  of  adjudications,  American  and  En- 
pl  s'l,  SCO  the  note  to  Henry  v.  Koch,  22  Am. 
Law  Reg.  402. 

Gubds.  9,  10.  The  right  to  receive 
V7T.tcr  from  land  cannot  be  ci-eated  l)y  pre- 
Bcrip.ion  v.Iicre  the  owner  of  the   land   cannot     'J'owlei/,  24  Pick.    347;    Uodnes   v.    Green,   23 


object  tj  the  taking  of  the  water,  as  in  case  of 
pcicolating  waters:  Hanson  v.  McCne,  42  Cal. 
303.  FiT  example  of  a  right  to  the  unob- 
structeil,  natural  ilow  of  surface  water  from  a 
Liglicr  to  a  lower  tract  of  land,  see  Ojbarn  v. 
Connor,  4'J  id.  .34G. 

O.ie  who  constructs  a  reservoir  on  the  pub- 
lic laud  under  tiic  acts  of  congress  of  July  26, 


Vt.  358;  Baptist  Church  v.  B'ljelow,  16  Weml. 
28;  Succession  of  Gamble,  23  La.  Ann.  9;  they 
constitute  a  qualified  and  usufructuary  right 
to  occupy  under  certain  restrictions:  Sohier  v. 
Trinity  Church,  109  Mass.  21;  and  are  held 
subject  to  the  power  of  the  trustees  to  alter 
and  repair  the  ciiuroh:  I'oorhees  v.  PresJui'eriaii 
Church,  5  How.  74;  17  Barb.  108.     In  Shnw  v. 


ISGJ,  anil  July  9,  1870,  has  a  right  to  continue     Bererid'/e,  3  Hill  (X.  Y. ),  26,  it  was  recognized 
the  same    as    against  one   who   subse(|uently     that  pews  miglit  be  held  as  easements. 


proves  up  his  claim  to  an  adjoining  tract,  not- 
withstanding he  liad  previous'y  tiled  liis  declar- 
atory statement:  Farley  v.  S.  V.  21.  <fc  /.  Co., 
68  Cal.  I  12. 

For  an  illustration  of  the  riglit  to  have  water 
flowin  i  :s  natural  course  from  a  higher  to  a  low  er 


Subd.  17.  Eurial. — For  a  very  interesting 
consideration  of  the  various  questions  connected 
witi)  the  right  of  burial,  see  the  article  "Grave- 
yard Law,"  in  10  Cent.  L.  J.  161;  see  also  sec. 
COS.  ante,  and  note. 

Eassmeats   by   prescription   can  be   ac- 


tract  of  land,  see  West  v.  Girard,  3  West  Coast     quired    oidy    by  a    continuous,  unintenupted 


Ec;..  C-!8. 

SubJ.  11.  Undisturbed  flood  of  water. 
Rehed  upon  in  Farmer  v.  Ukiah  Water  Co.,  56 
Cal.  1 1.  See  cases  in  previous  paragraphs,  and 
sections  I4I0  ct  seq.,  and  notes  upon  the  rights 
of  a;ip:-op!iators  of  water.  Compare  also  with 
sect  o:i  552. 

Gubd.  12.  Party-walls:  Washb.  on  Ease- 
ment.:..  454.     If  tiic  owner  of  land  erect  two 

adjoining  honsjs  with  a  common  wall,  and  of  way  which  was  unavailingly  claimed  b^'  a 
conveys  one  bounding  it  by  a  line  througli  the  grantee  of  one  to  whom  a  parol  license  to 
counnon  wall,  it  becomes  a  party-wall:  Sheired  pass  over  adjoining  preudscs  had  been  con- 
V.  Cisco,  4  Sandf.  430;  Wclister  v.  Stevens,  5  ceded.  And  also,  in  a  incisure,  in  Craida'l 
Duer,  55,3.  A  party  wall  can  only  become  such  v.Wooils,  8  Id.  136;  American  Co.  v.  Brad- 
by  statute,   by  agreement,  or  by  prescription:    ford,  21  Id.  3()0. 

2  Wait's  Act  &  D>  f.  723.  Either  party  may  As  onpliasizing  the  necessity  of  the  user 
use   t!ie   wall    for  all   pro])er   purposes   whicli     being  open,  peaceable,  as  j)f  right,  and  uninter- 

i-)tcJ,  see  also  C'afv  V.  Cra/i's,  53  Cal.  1.35. 


user  for  live  years,  under  a  claim  of  riglit, 
exchisively  and  openly,  to  such  use  of  the 
servient  premi-ses:  Gri</sbi/  v.  Clear  Bale  W. 
Co.,  43  Cal.  336;  Campbell  v.  West,  44  Id. 
046.  The  former  was  the  case  of  an  easement 
to  overQow  land,  the  latter  of  a  right  to 
carry  a  ditch  througli  another's  land.  Tna 
same  principles  ha,ve  been  asserted  in  Bar- 
hour  V.   Pierce,  42  Id.  057,  involving  a  right 


will  not  injure  the  other  owner.  He  may  in- 
crease the  lieiu'htof  hi'?  half  of  the  wail:  B.-ooLs 
V.  Curtlfi,  50  N.  Y.  039.  But  the  use  must  be 
reasouahle:  Price  v.  .Mc''onrfll,  27  111.  255.  If, 
in  underpinning  the  wall,  eitlicr  is  liiiMe  for 
the  injui'y  occasioned  by  his  carelessness  or  un- 
•killxuluess  to  the  other:    Webalcr  v.  Stevens,  5 


This  rig'.it  by  prescription  does  not  run 
a'-'ainst  the  United  States:  O'jhnru  v.  Connor, 
4i!  Id.  .317:    Wil/.ius  V.  MrCae.  Id.  056. 

I]  iscracnt3  pa33in3  by  transf3r  of  real 
property:  See  sec.  ilOi,  post. 


181 


§3  S02-80S 


REAL  OR  IMMOVABLE  PROPERTY. 


[Div.  II,  Pabt  II, 


802.   SrrvituJfs  not  attached  to  land. 

Sr:c.  802.     The  following  land  burdens,  or  servitudes  upon   land,  may  be 
granted  and  held,  though  not  attached  to  land: 

1.  The  right  to  pasture,  and  of  fishing  and  taking  gamej  i 

2.  The  right  of  a  seat  in  ohurch; 

3.  The  right  of  burial; 

4.  The  right  of  taking  rents  and  tolls; 

5.  The  right  of  way; 

G.  The  right  of  taking  water,  wood,  minerals,  or  other  things.     [Amendment, 
ai^proved  March  30,  1874;  Amendments  1873-4,  210;  took  effect  July  1,  1874.] 
Sorvitudes  not  attaDhsd  to  land. — The    whose  benefit  tliey  are  imposed.     Tlioucfh  the 


folli)uiiig,  from  the  commissioners'  note,  ex- 
phiins  this  section:  "A  servitudrf  is  defined  to 
lie  a  right  whereby  one  t'ling  is  subject  to 
another  thing,  or  person,  for  use  or  conven- 
ience contrar}- to  the  comoiou  right:  Ayl.  I'an  1. 
806;  Ersk.  Inst.  331.  Servitudes  which  atfjct 
lands  are  divi.led  into  two  kinds,  real  and  per- 
sonal. The  servitudes  enumerated  in  section 
801  are  real  servitudes,  imposed  for  the  benefit 
of  the  estate  to  which  the  right  belongs,  and 
reslin  j  upon  the  estate  on  which  the  obligation 
is  imposed.  The  servitudes  enumerated  in 
section  802  are  personal;  they  are  not  attached 
ti)  a    dominant  estate,  but  to  the  person  for 


terms  "easements  "  and  "servitudes  "  are  often 
used  by  common-law  writers  indiscriminately, 
it  will  be  seen  from  the  definitions  given  that  a 
servitude  may  exist,  and  yet  two  elements  nec- 
essary to  constitute  an  easement  bj  wanting, 
viz.:  1.  Bauefit  to  corporeal  pro))erty;  and,  2. 
The  dominant  estate.  .Servitudes  in  which 
these  elements  are  wanting  are  classed  by  the 
com;non-law  writers  under  the  heail  of  rights 
in  groaS:  Washb.  on  Easements,  8;  Burton  on 
Real  Prop.,  sec.  1110." 

Personal  servitudes  are  not  assignable: 
Washb.  on  E  isements,  4-10;  Burton  on  Real 
Prop.,  sec.  1116. 


833.   JJesignation  of  edatcs. 

Sec.  803.  The  land  to  which  an  easement  is  attached  is  called  the  dominant 
tenement;  the  land  upon  which  a  burden  or  servitude  is  laid  is  called  the 
servient  tenement. 


804.   By  whom  grantable. 

Sec.  804.     A  servitude  can  be 
the  servient  tenement. 


created  only  by  one  who  has  a  vested  estate  in 


805.    By  whom  held. 

Sec  805.     A  servitude  thereon  cannot  bo  held  by  the  owner  of  the  servient 

tenement. 

Ssrvitude  is  extingul  ihed  by  vesting  of  right  to  the  servitude  and  the  right  to  the  servient 
tenement  in  the  same  person:  See  sec.  811. 

80S.   Extent  of  serviludes^. 

Sec.  806.     The  extent  of  a  sei*vitude  is  determined  by  the  terms  of  the  grant, 
or  the  nature  of  the  enjoyment  by  which  it  was  acquired. 


Eiitsnt  of  sarvituds. — In  cases  of  easements 
fouiule  1  upon  grants,  construction  of  the  grant 
determines  tl:e  extent  of  t'.ie  right.  Cjurts 
will  endeavor  to  give  eTect  to  the  purposes  of 
the  grant:  Filz/iii(ih  v.  liaijmond,  43  Barb.  040. 
As  wlicre  ujion  im;>lication  a  w.ay  by  necessity 
has  been  created,  such  eascmeiit  will  cease  with 
the  nsc'ssity:  Alley  v.  i'arlftoii,  23  Tex.  7S; 
Jjide  V.  llalley,  33  Ala.  027,  and  cases  supra, 
in  note  to  sec.  801.  Tlu  .same  constructio.i 
whic!i  presumed  an  intention  to  grant  a  means 
of  access  to  the  lands  conveyed  will  also  pre- 
sume that  the  access  over  of  the  gi-antoi-'s  land 
was  meant  to  cease  when  other  means  of  ap- 
proach were  acquired. 

Where  a  right  of  way  is  granted,  the  grantee 


to  the  condition  of  the  property  at  the  time  of 
the  grant:  Lcimpmaii  v.  M'dlof,  21  N.  Y.  505. 

In  case  of  an  casement  by  prescription,  the 
nature  and  extent  of  the  enjoyment  determine 
the  right.  The  riglit  to  corrujit  water  f  r  one 
purpose  does  not  give  a  right  to  d>>  ho  for  an- 
other purpose  or  to  a  greater  extent:  IIols- 
maii  V.  lioilimj  Sitring  Co.,  1  McCart.  340. 
A  way  for  one  pnrposj  cannot  be  used  for  an- 
other ))urpo3e:  Atio  iter  v.  Boddsh,  11  Gray, 
152.  Aud  gener  dly,  the  use  defines  the  right: 
Washb.  on  Easements,  352;  and  the  natnre 
of  the  use  cannot  ba  changed  from  that  by 
which  the  prescription  was  gained:  Id.  147; 
lutein  V.  Uirloi,  21  Ala.  133.  An  increase  iu 
the  amount  of  tlie  use  vitiates  the  prosc"h)tion 


cannot  use  it  to  go  to  any  other  place  than  that  t.")  the  extent  of  the  excess  only:  Brddiuiii  \. 

Bpecified,  nor  for  any  other  parpOo3  than  that  C'dLiuf,  10   \Vend.    107;  Wriijhl    v.  Moore,    33 

Bpcciiied,  if  the  use  i<  limited  in  that  resiiect:  Ala.  538;    Whittitr  v.  Cocheco  Man,  Co.,  9  N. 

rre.ich  v.  Marston,  24  N.  H.  451.      Parties  also  H.  454. 
are  jjresumed  to  grant  eascmeats  with  reference 

182 


Title  II,  Chap.  III.] 


SERVITUDES. 


§§  807-811 


BO'l.    Apportioning  easements. 

Sec.  807.  In  case  of  partition  of  the  dominant  tenement,  the  burden  must  be 
apportioned  according  to  the  division  of  the  dominant  tenement,  bat  not  in 
Buch  a  way  as  to  increase  tlie  burden  upon  the  servient  tenement. 

"Where  the  dominant  estate  is  divided,  if    7ieij,  1  Cush.  2So;   Watnon  v.  Bioren,  1  Serg.  & 


the  casement  is  a  gcncial  one  for  the  benefit  of 
the  whole  estate  it  will  inure  to  the  benefit  of 
every  parcel  of  it  when  divided:  /Jarron  v. 
Jiickard.",  8  Paige,  351;  Hills  v.  Miller,  3  Id. 
254;  Lantihtij  v.  WiHwall,  5  Denio,  213;  Lewis 
V.  Cardairs,  G  Wliart.  193;  Underwood  v.  Car- 


R.  '229;  i'asVr  v.  L.  M.  R.  11.,  14  Ohio  St.  4S; 
Fixhcr  V.  Beard,  32  Iowa,  352.  lint  no  divis- 
ion of  the  dominant  tenement  can  inciease  the 
burden  ujion  the  servient  estate:  Wtil'iiey  v. 
Lei',  1  Alien,  103;  Underwood  v.  Carney,  I 
Cush.  285;  Watsons.  Bioren,  1  Serg.  &  R.  229. 


808.    Eirjlds  of  owner  offiUure  estate. 

Sec.  808.  The  owner  of  a  future  estate  in  a  dominant  tenement  may  use 
easements  attached  thereto  for  the  pui-pope  of  viewing  waste,  demanding  rent, 
or  removing  an  obstruction  to  the  enjoyment  of  such  easements,  although  such 
tenement  is  occupied  by  a  tenant. 


Entry  on  servient  estate. — One  who  owns 
an  casement  u[ion  the  land  of  another  has  a 
right  to  enter  on  the  laud  to  keep  the  easement 
in  repair,  but  aside  from  this  and  analoi^ous 
purpo!3C3  he  has  no  rigiitof  entry:  Pico  v.  Guli- 
tnas,  32  Cal.  578;  San  Francisco  v.  Calderwood, 


.^1  Id.  5S5.  Recognizing  this  right  to  enter  upon 
the  servient  estate  in  order  to  preserve  tho 
reasonable   enjoyment    of    the    easement,    see 

]Yathln^  v.   Pec':,   13  N.   H^  377;    Pri'smtt   v. 

William^,  5  Met.  429;  lixiujfnian  v.  Grieacmer, 
20  Pa.  St.  407. 


809.    Adions  hy  owner  and  occupant  nf  dominant  tenement. 

Sec.  809.  The  owner  of  any  estate  in  a  dominant  tenement,  or  the  occupant 
of  such  tenement,  may  maintain  an  action  for  the  enforcement  of  an  easement 
attached  thereto. 


Action  to  enforce  easement. — For  illus- 
tration I  if  actions  of  trespass  for  interference 
with  ].laintiti''3  easement,  see  Cave  v.  Crafts, 
53  Cal.  135;  Smith  v.  Wirjfjin,  48  N.  H.  ICO; 
Gavley  Y.  Looiieij,  14  Allen,  40.  That  a  tenant 
at  will  may  sue  for  an  interruption  of  the  ease- 
ment, see  Foley  v.  Wiieth,  2  Id.  1.35;  flaxt- 
ings  V.   Livennure,  7  Cray,  194,     And  that  a 


reversioner  may  have  such  action,  see  Hast- 
ings V.  Livermore,  tiitpra;  Brown  v.  Bowfu,  30 
N.  Y.  519;  Tin^man  v.  Belvidere  !!.  7?.,  1 
Dutch.  255.  But  the  injury  must  be  one  per- 
manently affecting  tiie  reversion:  Richardson 
V.  Bii/eloir,  15  Cray,  154. 

Enforcement  of  easement  by  injunction:  See 
High  on  Injunctions,  sees.  485  et  seq. 


810.  Actions  by  owner  of  servient  tenement. 

Sec.  810.  The  owner  in  fee  of  a  servient  tenement  may  maintain  an  action 
for  tho  possession  of  the  land,  against  any  one  unlawfully  possessed  thereof, 
though  a  servitude  exists  thereon  in  favor  of  the  public. 

811.  lluio  extinguished. 

Sec.  811.     A  servitude  is  extinguished: 

1.  By  the  vesting  of  the  right  to  the  servitude  and  the  right  to  the  servient 
ten-^ment  in  the  same  person; 

2.  By  the  destruction  of  the  servient  tenement; 

3.  By  the  performance  of  any  act  upon  either  tenement,  by  the  owner  of  tho 
servitude,  or  with  his  assent,  Avhich  is  incompatible  with  its  nature  or  exer- 
cise; or, 

4.  "When  the  servitude  was  acquired  by  enjoyment,  by  disuse  thereof  by  the: 
owner  of  the  servitude  for  the  period  prescribed  for  acquiring  title  by  enjoy- 
ment. 


Estiiisuislimont  of  servitude.— Subd.  1. 
Vestfng  of  riflit  to  servitude  and  right  to 
eerviiiit  tenement  in  same  parson:  Sec  sec. 
805.  ante.  That  such  unity  destroj's  the  servi- 
tude is  laid  doivn  in  P'iuijiton  v.  Concrse,  42 
Vt.  712;  Colrman's  A/>;>eul,  02  Pa.  St.  274. 
The  ownership. if  both  estates  must  be  absolute: 
Warren  v.  BtuLe,  04  Me.  27G;  McTavibh  v.  Cur- 


roll,  7  Md.  352;  Bralelyv.  Sharp,  9  N.  J.  Eq.  9. . 
And  there  must  lie  a  unity  of  possession  aa^ 
well:  Ritrjrr  v.  Purler,  8  Cusli.  145;    '/VVr  v. 
//amnion/,  11  Pick.  193;  J/az<ird  v.  Roinson, 
3  Mason,  272;  Kii'fer  v.  Imhof,  20  Pa.  .St.  438; . 
Gaiietty  V.  Bi'lkime,  7  Am.  Dec.  ISS;  Hancock 
v.  Wtntworlh,  5  Met.  4'16. 


183 


U  sis,  819 


ilEAL  OR  IMMOVABLE  PROPERTY. 


[Div.  II,  Part  II, 


,    Subcl  2.    Destraction  of  S3rvi3nt  tsns- 

Inen'c  cxtiiiijiiislu's  tlie  servitiulc:  Vaorhce.-i  v. 
Prcnliijtrr'nni  Charch,  17  Uarl).  lOD.  Tho  loca- 
tion of  a  public  street  over  a  fight  of  way  ilo- 
Btroys  it::  Mic^^eij  v.  Uiiio  i  Wharf,  41  Me.  o4; 
HaurorL-  V.  Wmtworlk,  5  Met.  4-t(_). 

Subd.  3.  Dy  tiio  acts  of  tlio  parties. — An 
agreumeiit  to  reli'ase  or  not  to  enjoy  tho  ease- 
ment ia  an  extinguishment  of  the  right:  D^fr 
V.  Saii/iinl,  4:5  Am.  Dec.  SD:>;  Wuslih.  on  Ej,se- 
tnents,  o.W;  Morse  v.  Copidand,  2  Ciray,  303;  Car- 
tU  V.  Xi'Onan,  10  Allen,  403.     An  uiie.xecuteJ 

Carol  agreement  to  give  up  an  easement  ia  nob 
indin:,-:  Pope  v.  DevereuXy  5  Gray,  412. 
Subd.  4.  Non-user. — Aljandonnient  of  the 
easement  will  Ijc  presumed  from  non-usei-  l»y 
the  owner  of  the  right  and  user  hy  tho  servi- 
ent tenant  of  the  servient  premises  adverse  to 
Biioh  right,  continued  for  a  lengtii  ef  time  suf- 
ficient to  create  a  right  by  prescription:  Arnold 
V.  SUvtus,  24  Pick.   lOG;  Pope  v.  U'lJara,  4S 


N.  Y.  41.1;  flaH  V.  McCaurjhey,  51  Pa.  St.  43,- 
Om-nx.  Field,  102  Mass.  1 14-,  H'hi/iam  w  J/c- 
Gniri-',  51  (ia.  57S;  IVildrr  v.  .yl.  /'aid,  12  Minn. 
20S;  Farrar  v.  Co'per,  31  Me.  3yt.  Sncli  non- 
user  combined  willy  adverse  user  on  the  part 
of  the  servient  tenant  will  worU  a  destruction 
of  the  easement,  whether  created  by  ilced  or 
by  prescription:  Above  cases.  Ikit  tliis  ilistinc- 
tion  must  b(!  observed:  to  extingai.-,h  an  ease- 
ment acijuired  by  prescription — the  class  of 
casements  [irovided  for  in  the  above  sub- 
division— a  non-user  alone  is  sullicient;  whereas 
in  case  of  an  easement  created  by  deed,  mere 
non-user  not  being,  inconsistent  with  tlie  writ- 
ten grant,  as  i.j  said  in  Doe  v.  llidter,  3  Wcml. 
14f).  there  must  l^e  sontc  act  of  the  owner  of 
the  servient  tenement  adverse  to  tho  right  and 
continued  I'or  tho  length  of  time  suiiieient  to 
establish  an  estate  in  realty  under  the  statute 
of  limitations:  Cases  first  above  cited;  Smijlea 
V.  Uastliujs,  22  N.  Y.  217. 


TITLE  III. 

EIGHTS  AND  OBLIGATIONS  OF  OWNEP.S. 

Chapter  I.     Rights  op  Owners 818 

II.     Obligations  of  Owners 840 


CHAPTER  I. 

PJGHTS   OF  OWNERS. 
Article  I.    Ixcidknts  of  Ownership 


II.      BoUNDAUIliS 


818 
829 


ARTICLE  I. 

INCIDENTS    OF   OWNERSHIP. 

818.    Tliglits  of  tenant  for  life. 

Sec.  818.     The  owner  of  a  life  estate  may  use  tlie  land  in  the  same  manner 

as  the  owner  of  a  fee-simple,  except  that  he  must  do  no  act  to  the  injury  of  the 

inheritance. 

tantrula  was  announced  in  Gahvi^  v.  Oreen  Pond 
Iron  M.  Co.,  32  N.  J.  Eq.  G33,  wiiere  a  life 
tenant  Worked  a  mine  whicli  tiio  prL'deeessor 
had  allowed  ti)  remain  un worked  for  isi-rty 
years:  "The  rule  Ijy  which  tiio  riglit  of  the 
life  tenant  to  work  open  niiius  is  to  be  tested 
is  not  tlie  icngtli  of  timo  that  m  ly  Iiavc  elapsed 
since  tlio  last  working  of  tiic  mines,  but  it  <!e 
pends  upon  wliethertlie  owner  of  tho  fee  merely 
dscontinacd  the  work  for  want  of  cajiital,  or 
because  it  did  not  prove  ])rofi table,  or  for  .".ny 
other  like  reason,  or  whetiier  he  aba  idoied  it 
witii  an  executed  intention  to  d.n'ote  the  land 
to  some  other  use." 

Compare  the  above  section    with   the  next 
section. 

Datiea  of  tenants  for  li£3:    See  sec.  840, 

P06t. 


Tenant  for  life  is  entitled  to  the  rents  and 
profits  accruing  during  tiic  term  of  his  estate: 
Forxry  \.  Ltton,  2  Head,  1S3;  McCamphell  v. 
McCampIieU,  5  Litt.  92;  Drookn  v.  Urool:^,  12 
S.  C.  422.  He  has  the  rijht  to  work  minus, 
quariies,  clay-pits,  or  sand-pits  opened  or  used 
by  for:iier  owners:  Ex'r.f  of  Heed  v.  Reed,  10 
N.  J.  E(i.  248;  Blllwr]H  v,  Ta;/lor,  10  Pick.  430; 
Coaten  V.  (Jheever,  1  Cow.  4G0;  norhweU  v.  Mor- 
gun,  2  I'.eas.  389;  Neel  v.  Xeel,  19  Pa.  St.  324. 
lie  may  open  new  pits  or  sliafts  in  tha  opened 
mines:  Croitch  v.  ParTfear,  1  Rand.  258;  K'n'r 
V.  Peterson,  41  Pa.  St.  357;  Westmoretand  Coal 
Co.\s  Appeal,  85  Id.  344.  lint  a  life  tenant 
Las  no  right  to  open  new  mines:  Cua/cs  v. 
Cheever,  -supra;  or  to  dig  soil  and  use  wood  for 
the  purpose  of  making  brick:  lAohujstoii  v.  Reip 
nolds,  2  Hill  (N.  Y.),  157.   The  following  iinpor- 


'•819.    lilr/hts  of  tenant  f)r  year.^,  etc. 

Skc.  819.     A  tenant  for  years  or  at  will,  unless  he  is  a  wron;<;/  cloer  hy  hold- 
•ing  over,  may  occupy  the  buildings,  take  the  annual  products  of  the  soil,  work 
mines  and  quarries  open  at  the  commenc3meut  of  his  tenancy, 
tjco  note  to  preceding  section. 

184 


tiTtE  til,  CilAP.  I.]  RIGHTS  OF  OWNERS.  §1 820-825 

820.  Same. 

Sec.  820.  A  tenant  for  years  or  at  will  has  no  other  rij^bts  to  the  property 
than  such  as  ai'e  given  to  him  by  the  agreement  or  instrument  by  which  hia 
tenancy  is  acquired,  or  by  the  last  section. 

821.  liifjlds  of  grantees  of  renin  and  reversions. 

Sec.  821.  A  person  to  whom  any  real  j^roperty  is  transferred  or  devised,  upon 
which  rent  has  been  reserved,  or  to  whom  any  such  rent  is  transferred,  is  enti- 
tled to  the  same  remedies  for  recovery  of  rent,  for  non-performance  of  any  of 
the  terms  of  the  lease,  or  for  any  waste  or  cause  of  forfeiture,  as  his  grantor  or 
devisor  might  have  had. 

Grants  of  rent  are  not  binding  upon  the  even  prior  to  the  expiration  of   the  time  in 

tenant  until   lie  has  notice  thereof:  Svc.  1111,  wliicli  to  re(l<;ein:   L'ci//iods  v,  Ldthrop,  7  Cal. 

pod.     The  yniutee  must  notify  the  tenant  of  43;  McDevilt  v.  SuUicaii,  8  iil.  o'JJ;  Harris  v. 

the  sale  l)cfoi-e  demanding  rent:  Id.;  O'C'oinior  lieynchh,  1.3  Id.  514, 

V.  Ke  bj,  41  Cal.  432.  Otherwise  a  refusal  by  In  Uwj  v.  Colter,  29  Cal.  IGS,  it  was  deter- 
the  tenant  tn  pay  the  rent  to  the  grantee  works  mined  that  the  right  to  remove  a  tenant,  under 
no  forfeiture  of  tlie  lease:  Id.  Payment  of  the  the  act  tliL-n  in  force  relating  to  forciijie  entries 
rent  to  tlie  grantor,  in  ignorance  of  the  grant,  and  unlawful  detaiuers,  was  given  to  the  con- 
protects  tiie  tenant:  Sec.  llll,/;o.s7.  It  seems  veutional  landlord,  and  not  to  his  successor  ia 
that  tlie  .sauic  principles  would  a[)ply  whetlier  the  estate. 

the  transfer  by  the  landlord  be  voluntary  or        Hiring   of  real  property  generally:  See 

involuntary.     A  purchaser  at  a  slieriff's  sale  of  sees.  1941  et  seq^. 
the  landlord's  interest  is  entitled  to  the  rent 

822.  Lidbil'dy  of  assignee  of  lessee. 

Sec.  822.     Whatever  remedies  the  lessor  of  any  real  property  [has]  against  hia 

immediate  lessee  for  the  breach  of  any  agi'eement  in  the  lease,  or  for  recoveiy 

of  the  possession,  he  has  against  the  assignees  of  the  lessee,  for  any  cause  of 

"action  accruing  while  they  are  such  assignees,  except  where  the  assignment  is 

made  by  way  of  security  for  a  loan,  and  is  not  accompanied  by  possession  of 

the  premises.     [Amendment,  approved  March  30, 1874;  Amendments  lo73-4,  219; 

took  effect  J ahjl,  1874.] 

As  an  example  of  the  application  of  this  sec-    mortgagor  with  the  latter's  landlord:  Sunol  T. 
tion,  the  mortgagee  in  possession  of  a  growing    MoLioy,  C3  Cal.  3G9. 
crop  is  boun.l  by  the  agreement  made  by  the 

823.  Pughts  of  lessees  and  their  assignees,  etc. 

Sec  823.  Whatever  remedies  the  lessee  of  any  real  property  may  have 
against  his  immediate  lessor,  for  the  breach  of  any  agreement  in  the  lease,  he 
may  have  against  the  assigns  of  the  lessor,  and  the  assigns  of  the  lessee  may 
have  against  the  lessor  and  his  assigns,  except  upon  covenants  against  incum- 
brances or  relating  to  the  title  or  possession  of  the  premises. 

824.  Remedy  on  leases  for  life. 

Sec  824.  Rent  due  upon  a  lease  for  life  may  be  recovered  in  the  same  man- 
ner as  upon  a  lease  for  years. 

823.   Picnt  dependent  on  life. 

Si;c.  825.     Rent  dependent  on  the  life  of  a  person  may  be  recovered  after  as 

well  as  before  his  death. 

823.    lU'inedg  of  reversioners ,  etc. 

Sec  32G.  A  person  having  an  estate  in  fee,  in  remainder  or  reversion,  may 
maintain  an  action  for  any  injury  done  to  the  inheritance,  notwithstanding  an 
intervening  estate  for  life  or  years,  and  although,  after  its  commission,  his  estate 
is  transferred,  and  he  has  no  interest  in  the  property  at  the  commencement  of 
the  action. 

185 


§§  827-831 


REAL  OU  IMMOVABLE  PROPERTY. 


[Div.  II,  Part  II, 


827.    Termi^  of  lease  may  he  changed  by  notice.  ' 

Sec.  827.  In  all  leases  of  lands  or  tenements,  or  of  any  interest  therein,  from 
month  to  montli,  the  landlord,  may,  upon  giving  notice  in  writing  at  least  tif teen 
days  before  the  expiration  of  the  month,  change  the  terms  of  the  lease,  to  take 
effect  at  tlie  expiration  of  the  month.  The  notice,  when  served  upon  the  tenant, 
shall  of  itself  operate  and  be  effectual  to  create  and  establish,  as  a  part  of  the 
lease,  the  terms,  rent,  and  conditions  specified  in  the  notice,  if  the  tenant  shall 
continue  to  hold  the  premises  after  the  expiration  of  the  month.  \N>'W  si^dlon, 
approved  Marcli  30,  1874;  Amendments  1873-4,  9.20;  tuolc  effect  July  1,  1874.] 

Termination  of  tenanoy  at  will:  See  sec.  7S9,  ante,  and  note. 


ARTICLE  II. 

BOUNDARIES. 

829.    liir/his  of  owner. 

Sec.  829.     The  owner  of  the  land  in  fee  has  the  right  to  the  surface  and  *jO 
everj'thing  permanently  situated  beneath  or  above  it. 


or  built  upon  it,  and  whatever  is  in  a  direct 
lino  between  the  surface  and  the  center  of  the 
earth:  2  Bla.  Com.  IS;  1  Cru.  on  Real  Prop. 
85 : "  Coinmissionera'  note. 


"The  term  'land'  compreliends  any  ground, 
soil,  or  earth,  as  meadows,  woods,  waters,  pas- 
turts,  marshes,  furze,  lieath.  It  has  imleiuiite 
extent  upwards  as  well  as  downwards,  and  in- 
cludes all  houses  and  other  buildings  standing 

830.   Boundaries  by  water. 

Sec.  830.  Except  where  the  grant  under  which  land  is  held  indicates  a  differ- 
ent intent,  the  owner  of  the  upland,  when  it  borders  on  tide-water,  takes  to 
ordinary  high- water  mark;  when  it  borders  upon  a  navigable  lake  or  stream, 
where  there  is  no  tide,  the  owner  takes  to  the  edge  of  the  lake  or  stream,  at  low- 
water  mark;  when  it  borders  upon  any  other  water,  the  owner  takes  to  the  mid- 
dle of  the  lake  or  stream.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  220;  took  effect  July  1,  1874.] 


Boundaries. — Land  bordered  by  tide-ivater 
extends  toortlinary  high-water  mark:  More  v. 
Maxsini,  .'^7  C"al.  432.  There  is  some  difference 
in  the  cases  upon  the  question  whether  grantees 
on  tide-waters  take  to  high  or  low  water  maik. 
In  this  state  they  take  to  high  water,  and  the 
common-law  rule  adopted  in  many  cases  is,  that 
the  shore  between  high  and  low  water  mark 
belongs  to  the  sovereignty:  J\IcNanu.9  v.  Gar- 
michael,  .3  Iowa,  1 ;  Mutfaer  v.  //er.she]/,  42  Id. 
35C;  Mcyor  v.  Eslavn,  9  Port.  601;  C!ou<i/i  v. 
Bell,  1  Z  dj.  IGO;  Strvem  v.  Patterson  etc.  11.  R. 
Co.,  34  N.  J.  L.  o33;  Stover  v.  Jack,  GO  Pa.  St. 
3.39;  Yatrs  v.  Milwaukee,  10  Wall.  497.  The 
American  editors  of  Smith's  Leading  Cases,  in 
their  note  to  Dovaston  v.  Pai/ne,  vol.  2,  p.  224, 
say  that  the  riparian  owner  takes  to  low-water 
mark.  \\  hen  l)each  may  constitute  portion  of 
tlie  inclosure  of  a  tract  of  laud,  see  llarkins  v. 
Nel-^ov,  :^:\  Cal.  310. 

Ndviijahle  louters  bonnd'iriet. — Navi  rable 
waters  cniimL'rated:  See  Pol.  Code,  sees.  2:54  S, 
2.349.  Tlie  common-law  test  of  navigabi.ity  is 
not  observed  in  this  section.  Nor  is  it  followed 
in  this  country  generally.  The  word  "navi- 
gable" is  used  in  the  code  in  its  plain  meaniu'^, 
without  regard  to  the  question  whether  the 
tide  ebbs  and  flows  therein  or  not,  and  includes 
both   classes  of    tidal   aud   non-tidal    waters. 


Provision  is  here  made  expressly  for  the  bound- 
ing of  lands  upon  waters  in  fact  navigable, 
where  there  is  no  tide,  and  in  such  case  the 
owner  takes  to  the  edge  of  the  water  at  its 
lowest  mark.  For  an  interesting  discussion  of 
the  test  of  "  navigable  "  waters  in  this  country, 
reviewing  the  decision  of  our  ourts,  see  the 
note  to  Arnold  v.  Mundy,  10  Am.  Dec.  385. 
Grants  upon  navigable  non-tidal  waters  extend 
to  tlieir  margins:  People  v.  Canal  Appraisers, 
30  N.  Y.  4GS. 

Landi  Itoideredon  non-navigahle  wntersextend 
to  tlie  center  thereof:  Jllcks  v.  ( 'o'/rnni,  2')  Cal. 
122;  Irivin  v.  Towne,  42  Id.  32G;  Ball  v.  Slack, 
30  Am.  D.'C.  273;  S.  C,  2  Whart.  rrJS;  Lure  v. 
C'lrla/,  24  Wend.  451;  Seneca  Nntion  v.  Kni/kt, 
23  N."  Y.  .^OO;  Cold  Spriwj  Iroi  Wo  -Is  v.  Tol- 
land, 9  Cush.  49!);  People  v.  Laiv.  31  Dirb.  501. 
But,  as  intimated  in  the  above  section,  a  differ- 
ent result  may  be  occasioned  if  t  le  lan.,'uagvi  of 
the  deed  indicate  that  the  land  shoidd  cxc.ude 
the  stream:  Alott  v.  Molt,  GJ  N.  Y.  253;  Ex 
piarte  Jenning-i,  16  Ara.  Dec.  447;  S.  C,  6  Cow. 
518. 

There  is  nothing  in  the  nature  of  a  marsh  to 
render  it  impossible  for  it  to  constitute  a  well- 
deii;ied  l>oundary  of  a  tract  of  land:  Bruina'jim 
V.  Bradsliau),  33  Cal.  43. 


831.    Jloundaries  by  ways. 

Sec.  831.     An  owner  of  land  bounded  by  a  road  or  street  is  presumed  to  own 
to  the  center  of  the  way,  but  the  contrary  may  be  shown. 

ISO 


Title  III,  Cuai-.  II.  1 


OCLKJAriOXS  OF  OWNERS. 


§§  832-840 


Bounding  on  street. — Land  described  in  a 
deed  as  bonnded  on  a  highway  or  t-trect  v.ill  lie 
considered  as  cxten<liug  to  the  center  of  t!ie 
Btreet,  unless  it  clearly  appears  that  it  ^vas  in- 
tended to  nialic  the  si<le  line  of  the  street  a 
boundary  instead  of  the  center:  Moody  v.  Pal- 
nier,  50  Cal.  31 ;  Wrhhcr  v.  dalifurnla  iL-  O.  /.'.  A'. 
Co.,  51  Id.  4-25;  Klt//r  v.  Pjnfer,  22  Id.  4S4. 
Thus,  where  land  is  described  as  running  to  a 


certain  street,  it  runs  to  the  center  line:  Kittle 
V.  Pjf'ijj'cv.  !<u]ira;  so,  when  bounded  "by," 
"along."  or  "upon"  a  high" ay:  Wehber  v. 
Ca'ifo'r.lia  d:  O.  I'.  I'.  Co.,  supra;  Mod  v.  Mott, 
08  N.  Y.  24G.  Bounding  a  lot  in  a  city  by  the 
easterly  line  of  a  street  excludes  any  land  ia 
the  street:  Seveiy  v.  C.  P.  11.  II.  Co.,  51  CaU 
194. 
See  pot<t,  same  principle,  sec.  1112, 


832.    Lntoral  and  subjacent  support,  rujht  of  owner  to  excavate. 

Sec.  8:]2.  Each  coterminous  owner  is  entitled  to  the  lateral  and  subjacent 
support  which  his  land  receives  from  the  adjoining  land,  subject  to  the  right  of 
the  owner  of  the  adjoining  land  to  niaL-e  proper  and  usual  excavations  on  the 
same  for  parpo.ses  of  construction,  on  using  ordinaiy  care  and  skill,  and  taking 
reasonable  precautions  to  sustain  the  land  of  the  other,  and  giving  previous 
reasonable  notice  to  the  other  of  his  intention  to  make  such  excavations. 
[Amendment,  approved  Marclt  30,  1874;  Amendments  1873-4,  221;  took  effect 
Juhjl,  1874.] 


Lateral  support — In  Asto7i  v.  Kol'm,  G.3 
('al.  2G9,  this  s  ciiou  was  considered,  and  t!ie 
court,  ]ier  MoKmstiy,  J.,  s-aid:  "Since  the 
enactincnt  of  t'ic  section  of  the  code,  tlie  rights 
and  duties  of  adjoining  proprietors — with  refer- 
rencc!  to  the  matter  in  hand  [i.  e.,  excavatiu'r]  — 
are  substauLially  tlie  same  as  they  were  before, 
provided  notice  is  given  by  the  party  intending 
to  oxoavato."  "  By  the  jjiving  of  the  notice  the 
cotciminous  ]iropiietors  are  relegated  to  their 
common-law  ri^ilitsaud  duties.    Their  duties  are 


correlative.  The  object  of  the  notice  is  that 
the  owner  of  the  building  may  have  his  atten- 
tion calkd  to  the  work,  aud  if  neces.sary,  shore 
up  his  wall  or  stiengthen  his  foundation."  lu 
that  case  the  common  law  on  the  subject  ia 
clearly  stated,  and  the  full  efFoct  of  the  above 
section  discussed. 

Tlie  doctrine  of  lateral  support  <lo2S  not  ap- 
plv  to  hydraulic  mines:  Hendricks  v.  S.  V.  M. 
d,'  ■/.  Co.,  50  Cal.  190. 


833.  Trees  wh'se  trunks  are  xvliolhj  on  land  of  one. 

Sec.  833,     Trees  whose  trunks  stand  wholly  upon  the  land  of  one  owner 
belong  exclusively  to  him,  although  their  roots  grow  into  the  laud  of  another. 

834.  Line  trees. 

Sec.  834.     Tx-ees  whose  trunks  stand  partly  on  the  land  of  two  or  more  coter- 
minous owners  belong:  to  them  in  common. 


CHAPTER  IT. 

OBLIGATIONS  OF  0\\T^EES. 

840.    Duties  of  tenant  for  Ufe. 

Sec  840.  The  owner  of  a  life  estate  must  keep  the  buildings  and  fences  in 
repair  from  ordinary  waste,  and  must  pay  the  taxes  and  other  annual  charges, 
and  a  just  proportion  of  extraordinary  assessments  benefiting  the  whole  inheri- 
tance. 

"Annnal  charges:"  See  Mo^i'tij  v.  Marshall, 
27  Bail).  42,  r.s  interest  up m  incuml'rances;  see 
al  o,  upon  such  charges,  JJ'tnmm  v.  nnriium,  42 
Md.  251;  Coj.-<n-rll  v.  Co',/s"i''',  1  Humph.  498. 
The  tenant  must  also  contribute  to  tin'  cost  of 
making  permanent  improvements:  SiUfwrll  v. 
j!oi"jh(fi,  2  Bradf.  .311;  /'t','!  v.  Dorlaml,  11 
II.ivv.  Pr.  489;  Estate  of  Mi  In;  1  Tuck.  340; 
Uimiihiii  V.  Carmai),  .3  Kcdf.  CO;  Plirmidon  v. 
noxtonAOQ  Mass.  547;  Ildnrr  v.  A>,  2:?  Pa.  St. 
.305.  Sea  valuable  note  in  .sliarnwood  & 
Brdd's  Lead.  Crs.  on  Re:  1  Prop.  104  et  seq. 

Rights  of  tenants  for  IL'e:  See  sec.  818, 
ante. 

Decree  dsclariog  Ifo  estate  terminated: 
Code  Liv.  Proc,  sec.  1723. 


Duties  of  Ilfo  tonant.— The  tenant  for  life 
nuisL  keep  the  premises  in  repair:  Bro'^'jh  v. 
lli'jlli}!^.  'J  Cratt.  408;  Cocltran  v.  Coc/traii,  2 
De^au.  521 ;  L'z'ri  of  Keaninj  v.  Keariiei,  17  N. 
J.  E<|.,  50  Id.  504;  In  r^  Mani  E.  Sfrr/e,  10  Id. 
120;  IVi'son  v.  Edmon  «,2l  N!  II.  517;  S>rtc.-<  v. 
Sar/f.-<,  .3  Sandf.  Ch.  001-007;  but  is  not  bound 
to  expend  extraordinary  sums:  ]Vii.'<oii  v.  L'd- 
moiid.<,  mipra;  ]}rook.-<  v.  Brooks,  12  S.  C.  422; 
nor  to  rebuild  bui  dings  destroyed  by  the  act 
of  God:  Drool:-t  v.  Brookx.  suprn.  He  must  also 
pay  the  ordinary  taxes:  \'ar)ieij  v.  S/cfrii", 
22  Mc.  .3.31;  Pairir/c  v.  Stirrn-ood,  4  Blatclif. 
112;  Johifou  v.  Siiiilli,  5  Bush,  102;  F/crt  v. 
norland.  11  How.  Pr,  489;  Graliam  v.  iJuimi. 
gan,  2  Bosw.  510;  Fox  v.  Lowj,  8  Bush,  551. 


187 


§§  S41-S52 


r.EAL  on  IMMOVABLE  PROPERTY. 


[Div.  II,  Part  II, 


841.    l^lonumeuh  and  fences. 

Sec.  841.     Coterminous  owners  are  mutually  bound  equally  to  maintain: 

1.  The  boundaries  and  monuments  between  them; 

2.  The  fences  between  them,  unless  one  of  them  chooses  to  let  his  land  lie 
•without  fencings;  in  which  case,  if  he  afterwards  incloses  it,  he  must  refund  to 
the  other  a  just  proportion  of  the  value,  at  that  time,  of  any  division  fence 
made  by  the  latter. 


In  a  number  of  the  counties  there  are  special 
laws  concerning  «livision  and  partition  fences; 
and  in  so  far  as  tliey  are  in  force  tliey  modify 
the  above  provisions.  These  acts  v.-ill  be  found 
referred  to  in  the  Statutes  in  Force,  in  the  fourth 
Tolume  of  tills  work,  under  the  titles  of  the 
respective  counties. 

"lint  sucli  owners  owe  this  duty  to  each 
other  only,  and  not  to  the  public  generally: 
Ryan  v.  Rochester  d-  L.  li.  B.  Co.,  9  How.  Pr. 
453:"  Commissioners'  note.  Where  one  of  the 
coterminous  owners  pulls  down  a  party-wall 
and  rebuilds  it  anew,  the  adjoining  owner  is 


not  bound  to  contribute  to  building  the  ne-vnr 
wall  higher  than  the  old  nor  of  Uiorc  costly  ma- 
terial: C'amjiljdl  V.  Metier,  8  Am.  Doc.  570. 

Where  the  second  subdivision  of  this  section 
wouM  conllict  with  an  act  relative  to  lawful 
fences  continued  in  force  by  the  codes,  if  it 
should  Vie  given  a  general  construction,  the 
ciiurt  will  confine  the  operation  of  this  section 
to  tliose  counties  not  enumerated  in  the  act 
continued  in  force:  Gonzales  v.  Wassou,  51  Cal. 
235. 

Confusion  of  boundarias,  jurisdiction  of 
equity  in  cases  of:  Ueatti/  v.  JJixon,  5G  Cal.  019. 


TITLE  IV. 

USES  AND  TRUSTS. 

847.   What  us^es  and  trusts  may  exist. 

Sec.  847.     Uses  and  trusts  in  relation  to  real  property  are  those  only  which 

are  specified  in  this  title. 

Charitable  uses. — This  section  does  not 
prevent  tlie  creation  of  permanent  trusts  for 
charitaMc  uses;  it  is  applicable  only  to  private 
trusts:  Lsfa/f  of  llhiclic'i,  58  Cal  457,  481 ;  In 
re  E'fute  of  RoJinixoii,  1 1  Pac.  C.  L.  J.  As  to  the 
statute  of  uses  iu  this  state,  see  Chandler  v. 
Chandl'T,  ijo  Cal.  2G7. 


Rales  as  to  suspending  power  of  alien- 

atioa:  Sees.  715,  710,  771,  (tn/''. 

Trusts  for  accumulation  of  income :  Sees. 
722-720,  ante. 

Trtists  in  general:   Sees.  2215-2224,  poi^t. 

Trusiis  for  third  persons:  Sees.  2250- 
22S9,  2^ost. 


848-831.    liirjJit  to  possession  of  land — TrtLste"s  taking  no  interest. 

Sections  848,  840,  850,  and  851,  were  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  221 ;  took  effect  July  1,  1874. 

852.    Trvi<l  to  he  in  writing. 

Sec  852.     No  trust  in  relation  to  real  property  is  valid  unless  created  or 
declared : 

1.  By  a  written  instrument,  subscribed  by  the  trustee,  or  by  his  agent  thereto 
authorized  by  wiiting; 

2.  By  the  instrument  under  which  the  trustee  claims  the  estate  affected;  or, 

3.  By  operation  of  law. 


Creation  of  trust — This  section  distin- 
guishes between  expre>^s  and  implied  or  result- 
ing trusts,  the  latter  being  such  as  exist  "  by 
operation  of  1  iw,"  and  the  former  such  as  ai'C 
created  or  dccl.ired  by  instrument  in  writiu'^: 
E-^taU-  of  //hirL-'ri/,  58  Cal.  483.  Trusts  relating 
to  jier.soual  |)ro;)crty  may  be  established  by 
words  or  acts  as  p'cscril)ed  by  sections 2221  and 
2222:  See  f/"iiir/://>f.'<IMaf/>,'.<tiipra. 

Trust  f Dr  tlao  b^nolt  of  tliird  parson,  hoTW 
created:  riee^.  22 -9-2230. 

R33-alt!ii3  trast  estiblished  by  parol. — 
The  facts  constituting  an  implied  trust  may  be 
provctl  by  I  ar.'l  testimony:  Mil'anl  v.  Hath- 
away, 27  Cal.   119;  Baylaa  v.  Baxter,  22  Id. 


575.  See  note  to  sec.  853,  resulting  trusts. 
The  f:ict  that  the  one  in  whoso  name  tlic  d  ed 
was  made  verbally  agreed  to  convey  the  laud 
U')on  ib'iuxnil  to  the  person  paying  the  consid- 
cratio!)  dies  not  m:ike  the  trust  expres'^,  so  as 
to  jircvtrnt  the  introduction  of  paml  evidence  to 
prove  it:   Jkii/'es  v.  liaxlrr.  '22  (Jal.  575. 

Thi3  evidence  must  clearly  establish  the  fact 
that  the  money  was  paiil  by  the  alleged  be-ie- 
ficiary:  Mllardw  ITnthawn:i.-21  C:\\.  \\<^\  -l/c- 
Crrnrii  v.  Ca-ey,  50  Id.  340;  Annridfiirnf  A^-tO- 
rififioii.  V.  llrewt'T,  51  Tex.  257;  Frederick  v. 
IIki-<,  5  Xcv.  383;  Le  v.  Browh'r,  51  Ala. 
238;  Sin'Uh  v.  Pulton,  12  W.  Va.  541. 


183 


Title  IV.] 


USES  AND  TRUSTS. 


§§  853-857 


853.    Beguiling  fnisf,  when  prcfiumed. 

Sec,  85;>.  "When  a  transfer  of  real  property  is  made  to  one  person,  and  the 
consideration  therefor  is  jiaid  b}'  or  for  another,  a  ti-ust  is  presumed  to  result  in 
favor  of  the  person  b}'  or  for  "whom  such  payment  is  made.  [ Amendment, 
a2>proced  Marcli  30,  1871;  Amendments  1873-4,  221;  took  effect  Jahj  1,  1874.] 

A  trust  results  in  favor  of  the  person  liy     /Jlih/ni  v.  Jordnn,  supra.     Tin's  trust  wliich 


or  for  uhoiii  liie  coiisiilcraticn  is  paid,  wlicre 
real  jirf){)crt3' ii  transferred  to. inotlicr:  Osborne 
V.  L'.dk-ol/,  G  Cal.  119;  Jli/dni  v.  Jordan,  21 
Id.  92;  Ikujlcn  v.  Baxter,  22  Id.  57.');  Sinufoii 
V.  LrLsti'in,  Id.  5S0;  Mi  lard  v.  llalhawaTj,  27 
Id.  119;  Bbul worth  v.  Lake,  3.3  Id.  255;  Cnr- 
rcv  V.  Al'ai,  3t  Id.  254;  DU:rinivi  v.  iVoi-rlr,  oQ 
Id.  94;  Case  v.  Coddhirj,  33  Id.  191;  U'a.sle,/  v. 
Foreman,  Id.  90;  Davis  v.  Bani/h,  59  Id.  5GS; 
11  nteliinnon  v.  II iitchivwn.  Id.  31.S;  Boxko- 
witz  V.  Davis,  12  Xev.  44G;  sec  2  Pomcroy's 
Eq.  Jur.,  sees.  10:50  ct  seq.  It  makes  no  differ- 
ence wlietlier  tlic  consideration  is  money  or 
otlier  property:  Cnrrci/v.  Allen,  snpra.     Where 


the  law  implies  is  not  destroyed  by  a  stipula- 
tion in  writing  to  repay  the  consideration 
money:  Mdtard  v.  Ilatkuwaf/,  sitpra. 

Tlic  above  principles  do  not  apply  to  a  pur- 
chase by  a  fatlicr  in  the  name  df  his  child. 
Sucii  purchase  is  prima  facie  an  advancement: 
Hit.is  V.  Mel/ui.i,  10  Cal.  173. 

The  partj'  claindng  .is  a  resulting  trustee  by 
reason  of  tlie  payment  of  the  consideration 
must  show  that  tlic  money  was  paid  before  or 
at  the  time  of  the  execution  of  the  conveyance: 
Case  V.  Voddiu'i,  38  Cal.  191;  Roberts  v.  Wnre, 
40  Id.  031.  And  he  must  clearly  jirove  that 
the  money  belonged  to  him;   if  tiie  t-jstimony 


one  pays  but  part  of  the  consideration  money,  a     is  merely  parol,  it  will  be  received  with  much 
trust  firo  tanlo  arises:   Case  v.  CoddiiKj,  supra;    caution:  Millard  v,  llalhawarj,  27  Id.  119. 

854,  855.   Piiglds  of  creddors. 

Sections  854  and  855  were  repealed  by  act  approved  March  30, 1874;  Amendments  1873-4,  221; 
took  clicct  July  1,  187-4. 

856,    Purchasers  protected. 

Sec,  SoG.     No  implied  or  resulting  trust  can  prejudice  the  rights  of  a  ptirchaser 
or  incumbrancer  of  real  property  for  value  and  without  notice  of  the  trust. 


tee:  Price  v.  Beeves,  33  Cal.  457;  and  equity 
will  enforce  the  trust  the  same  as  .-.gainst  the 
original  trustee:  Lalhrop  v.  Bamp'on,  .31  Id. 
17.  That  the  purchaser  must  have  pirtcd  with 
value,  see  Paris  v.  Bauij/i,  59  Id.  5G3.  See  the 
note  to  sec.  SG3,  upon  the  cfTect  of  a  purchase 
from  a  trustee  not  empowered  to  sell;  see  also 
sec.  2243. 

Bona  fide  purchasers  generally:  See  sec. 
1214,  and  note. 


Eonalidc purchaser,  to  take  land  discharged 
of  the  tru^^t,  murt  have  been  ijnorant  of  all  of 
the  facts  constituting  the  fraud,  not  only  at  the 
time  {,!  the  pui-ehase,  but  when  he  paid  the  pur- 
chase money:  Scott  v.  Umbanjer,  41  Cal.  410. 
See  generally  that  to  protect  one  as  a  bona  fide 
purchaser  he  must  not  have  notice  if  the  prior 
equity,  when  he  paid  the  purchase  money: 
BleiijhCs  Ihlrs  v.  Baidcs,  \~  Am.  Dec.  157.  If 
the  purchaser  has  knou ledge  of  Iho  trust,  he 
occupies  the  same  position  as  the  original  trus- 

857.    Erpresx  trusts  for  ichal  purposes  created. 

Sec.  857.     Express  trusts  luay  be  created  for  any  of  the  following  purposes: 

1.  To  sell  real  i^roperty,  and  apply  or  disjjose  of  the  proceeds  in  accordance 
■with  the  instrument  creating  the  trust; 

2.  To  mortgage  or  lease  real  property  for  the  benefit  of  annuitants  or  other 
legatees,  or  for  the  purpose  of  satisfj'ing  any  charge  thereon; 

3.  To  receive  the  rents  and  profits  of  real  i^roperty,  and  pay  them  to  or  apply 
them  to  the  use  of  any  person,  whether  ascertained  at  the  time  of  the  creation 
of  the  trust  or  not,  for  himself  or  for  his  family,  during  the  life  of  such  person, 
or  for  any  shorter  term,  subject  to  the  rules  of  Title  II.  of  this  part;  or, 

4.  To  receive  the  rents  and  profits  of  real  jiroperty,  and  to  accumulate  the 
same  for  the  purposes  and  within  the  limits  jirescribed  by  the  same  title. 
[Amendment,  approved  March  30, 1874;  Amendmeids  1873-4,  221;  tooh  effect  July 
1,  1874.1 


EsoiGss  trust3. — Suba.  1,  To  sell  realty 
and  dispose  of  tho  prooceds. — As  examples  of 
transfers  by  a  debtor  iu  trust  to  sell  for  tlie  ben- 
efit of  tin?  creditors  generally,  see  llaii(Ue:i  v, 
Pjister,  .30  Cal.  .3S3;  Learned  v.  Willon,  40  Id. 
349;  Thompson  v.  McKai/,  41  Id.  221,  2;;0;  'P/lcr 
V.  Crankier,  48  Id.  259;  Cschicendv.  AW^.s-,  Slid. 
134;  Sliurj^)  v.  Goodwin,  Id.  219;  and  for  tho  ben- 


efit of  legatees  see  Estate  of  DPivey,  49  Cal.  76, 
8G;  Au'jnlxoln  v.  Arnaz,i)\  Id.  4.35,  4.38;  and  for 
examples  of  "trust  deeds," see  Korh  v.  Brii/(js, 
14  Id.  2,5G;  Grant  v.  Burr,  54  Id.  298;  Bate- 
man  v.  Burr,  57,  Id.  480.  If  A.  conveys  to 
B.  a  tract  of  land  to  be  reconveyeil,  he  thereby 
creates  an  express  trust  which  B.  may  accept 
•    by  accejjting  tile  deed:  IJeari>t  v.  Pujol,  44  CaL 

189 


§§  858-863  REAL  OR  IMMOVABLE  PROPERTY.  [Div.  II,  Part  II, 

230.     Vali  lity  anfl  construction  of  conveyance  Dubd.  4.    To  aocvimulate  rents  and  prof. 

to  trustee  to  sell  ami  convey  the  trust  fumli  its. — The  reference  to  title  2,  part  2,  is  a  niis- 

•with  the  app:()v;il  of  the  ceMui  que  tru-^t:   Tij!i-r  take,    it   should    refer    to    title   2,    first   parti 

V.  Graii'jrr,  4S  Id.  2.ji);   see  2  Pomeroy's  Ivj.  E-<tate   of  llinckleij,    58    Cal.    481;    see    sees. 

Jur.,  sec.  1004.  722-726.     No  valid  direction  for  accumulations 

£jubd.  2.    To  mortgage  or  lease  property:  See  sec.  859. 

LaiKj  V.  Ro]>h>,  r>  Sandf.  ;W;}.     It  is  to  be  noted  Estate  of  trustee:  See  infra,  sec.  863. 

that  this  sul)divi;iio:i  does  not  extend  to  cred-  The  provisions  of  the  New  York  revised  stat- 

itors;  it  therclorc  gives  no  authority  to  luort-  ntes  from  which  this  section  and  many  others  in 

ga^:;e  trust  pronrty  to  pay  creditors.  this    title   were   taken  are  cxannncd,  and  the 

Subd.  3.     To  avjply  tlie  rents  and  profits  cases  bearing  upon  them  ore  collected  in  the 

of  land. — See,  for  illustration,  Cw^^er  V.  II  •nlif,  appen-lix  to  Professor  tJray's  recent  essay  on 

4SCal.  568;  Estate  of  Matth/iw  Ddaney,  49  Id.  76.  Restraints  on  Alienation. 

858.  Powers,  rchen  deemed  part  of  lice  srcuritij. 

Sec.  858.     Where  a  power  to  sell  real  property  is  given  to  a  mortgagee  or 

other  incumbrancer,  in  an  instrument  intended  to  secure  the  payment  of  money, 

the  power  is  to  be  deemed  a  part  of  the  security,  and  vesta  in  any  person  who, 

by  assignment,  becomes  entitled  to  the  money  so  secured  to  be  paid,  and  may 

be  executed  by  him  whenever  the  assignment  is  duly  acknowledged  and  recorded. 

[New  section,  approved  March  30,  187-1;  Amendments  1873-4,  222;  look  effect  July 

1,1874.] 

Section  SIS,  as  originally  passed,  was  repealed  187.3-4,  222;  took  effect  .July  1 ,  1874:  and  a  new 
by  act  approved  }darch  30,  1874;  Anienduieats     section  substituted  in  its  place,  as  above. 

859.  Profds  of  land  liable  to  creditors  in  certain  cases. 

Sec.  859.     Where  a  trust  is  created  to  receive  the  rents  and  profits  of  real 

property,  and  no  valid  direction  for  accumulation  is  given,  the  surplus  of  such 

rents  and  profits,  beyond  the  sum  that  may  be  necessary  for  the  education  and 

support  of  the  person  for  whose  benefit  the  trust  is  created,  is  liable  to  the 

claims  of  the  creditors  of  such  person,  in  the  same  manner  as  personal  jjroperty 

which  cannot  be  reached  by  execution. 

A  provision  to  the  effect  that  the  rights  of  a  Bonnett,   31  Id.   9;  CampMl  v.  Foxfer,  35  Id. 

beneliciary  shonhl  cease,  and  the  trust  should  331;    Williams  v.    Thorn,  70   Id.    270:    Crugcr 

shift  in  favor  of  another  person — €.  f].,  the  ben-  v.  Jones,  IS  Barb.  467;  Ueiuiet  v.  Beclcman,  45 

cficiary's  wife — in  case  a  judgment  is  recovered  Id.  362. 

against   him,   or  in  the  event  of  his  interest         Necessary  for  education. — See  this  section 

becomint^  liable  to  the  claims  of  his  creditors,  is  discussed  and  the  New  York  cases  cited  touch- 

valid  and  o|ieiative:  2  Pomeroy's  Eq.  Jur.,  sec.  ing  upon  what  is  necessary  for  tlie  support  of 

1005,  in  note  citin  ,'  Kennedy  v.  Xunan,  52  Cal.  the  cestui  que  tntst,  and  how  tlie  surplus  is  to  be 

326;  Notff's  v.    L'.akenian,  3  Sandf.  531;  6  N.  re;iched  by  creditors:  Appendix  to  (tray's  Re- 

Y.  567;  Bramhall  v.  Ferris,  14  Id.  41;  Gruff  w,  straints  on  Alienation,  sees.  287  et  seq. 

860.  Poicers,  execution  of. 

Sec.  8G0.     Where  a  power  is  vested  in  several  persons,  all  must  unite  in  ila 

execution;  but  in  case  any  one  or  more  of  them  is  dead,  the  power  may  bo 

executed  by  the  survivor  or  survivors,  unless  otherwise  prescribed  by  the  terms 

of  the  power.     [Neio  section,  approved  March  30, 1874;  Amendments  1873-4,  222; 

took  effect  July  1,  1874.] 

Death  of  co-tru3tee,  the  trust  survives  to     by  act  approved  March  33,  1874;  Amendments 

the  others:  Sec.  22SS,  p  >st.  187:1-4,  222;  took  effect  July    I,    1874;  and  a 

Section  860,  as  originally  passed,  was  repealed    new  section  substituted  in  its  place,  us  above. 

861.  862.   Poxoers  in  trust. 

Sections  801  and  862  were  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4, 
222;  took  effect  July  1,  1874. 

863.    Trustees  of  express  trusts  to  have  whole  estate. 

Sec.  8G3.  Except  as  hereinafter  otiierwise  provided,  every  express  trust  in 
real  property,  valid  as  such  in  its  creation,  vests  the  whole  estite  ia  the  trustees, 
subject  only  to  the  execution  of  the  trust.  The  beneficiarioa  talio  no  estate  of 
interest  in  the  property,  but  may  enforce  the  performance  of  the  trust. 

190 


Title  IV.]  USES  AND  TRUSTS.  §§  864-869 

Interest  of  trustee — Implied  trusts.— Tlie  TJohlen  v.  New  Yorlc  and  Erie  Bnnl;  72  N    Y. 

entii-o  estate  is  vested  in  the  trustee,  but  liis  280;    New   v.  NicoU,    73    Id.    127;    ilrijjiih   v, 

power  to  make  a  valid   sale  and  conveyance  JJlanc/iar,  17  Ca!.  70;  Thoinpson  v.   Toland,  43 

will  depend  upon  the  nature  of  the  trust  and  Id.  90;  Sharp  v.  Goo'Iirin,  51   Id.  2!9;  Scott  v. 

the  form   of  the  instrument  l)y  which  it  is  de-  Umbanjer,  41   Id.  410;  Prve  v.  Ucevfx,  38  Id. 

clared:  2  Poineroy's  Eq.  Jur.,  sec.  1005.    In  the  457;   Lalhrop  v.  Bampton,  31   Id.    17.     When 

note  to  this  section,  Professor  Pomeroy  gives  the  tlie  trust  is  declared  in  the  same  instrument  by 

following  instructive  summary  of  the  powers  of  which  the  land  is  conveyed  to  the  trustee,  every 

the  trustees  in  the  respective  classes  enumer-  sale  or  otiicr  act  by  him  in  contravention  of  the 

ated  in  section  857:   "In    ti'usts    of    the   iirst  tiust  ia  absolutely  void;  a  purchaser  or  a  grantee 

class,  bein,'  expressly  created  for  the  purpose  would  obtain  no  title  whatever:  Pmrcrs  v.  Ber- 

of  a  sale,  tlie  tiustec  may  of  course  sell  and  (ji'ii,  (i  N.  Y.  358;  Bidmout  v.  O' Brwii,   12  Id. 

convey  a  gocnl  title:  ^cc  Learned  w.  Wdton,  AO  394;   Smith   v.   Bowen,   35  Id.  83;    Brifjr/n   v. 

Cal.  349;  Thnm/,mn  v.  McKay,  41  Id.  221,  230;  Pnl/wr,  20  Barb.  392;  Crmjn-  v.  Jones,  18  Id. 

Sjrragiie   v.  EdwnxU,  48  Id.  239;  Saundern  v.  4G7;  Lcitch  v.   Welh,  48  Id.  G37." 

Schmaelzle,  49  Id.  59.     In  trusts  of  the  otiier  Constructive  notice  arising  from  records  will 

kinds  the  trustee   has  no  authority  to  sell  or  charge  with  a  trust   lands   in    the    hands  of  a 

convey.     Still,   if  the  trust  is  not  declared  in  purchaser:  y/a.v.sr?/ v.  JFi/ii^,  55  Cal.  525,  where 

the  same  instrument  by  which  the  land  is  con-  the  purchaser   bought  fmm  tiie  husband  who 

veyed    to    the    trustee,  a   purchaser  from    him  had  obtained  his  wife's  land  by  getting  her  to 

without  notice  of  the  trust,  and  for  a  valuable  join  in  a  mortgage,  and  by  purchasing  in  at  the 

consideration,  takes  a  good  title,  freed  from  the  sale. 

trust;  a  purchaser  with  notice  or   without  a  Enforcing  performance  of  the  trust:  See 

valuable  consid<  ration  takes  the  land  subject  pout,   "Obligation    of    Trustees,"    sees.    222S- 

to  the  trust  and   becomes  himself  a  trustee:  2239,  and  sees.  2258-2203. 

864.  Author  of  trust  may  devise,  etc. 

Sec.  8G4.  Notwithstanding^  anytbing  contained  in  the  last  section,  the  author 
of  a  trust  may,  in  its  creation,  prescribe  to  whom  the  real  property  to  which 
the  trust  relates  shall  belong,  in  the  event  of  the  failure  or  termination  of  the 
trust,  and  may  transfer  or  devise  such  property,  subject  to  the  execution  of  the 
trust. 

865.  T'dle  of  grardor  of  trust  property. 

Sec  8C5.  The  grantee  or  devisee  of  real  property  subject  to  a  trust  acquires 
a  legal  estate  in  the  property,  as  against  all  persons  except  the  trustees  anti 
those  lawful!}-  claiming  under  them. 

863.    Iidcrt'stx  remaining  in  grantor  of  express  trust. 

Sec.  8(>G.  "Where  an  express  trust  is  created  in  relation  to  real  property, 
every  estate  not  embraced  in  the  trust,  and  not  otherwise  disposed  of,  is  left  in 
the  autlior  of  the  trust  or  his  successors. 

T-U3t  dejUred  in  part  only  of  the  estate  Xininn,  52  Id.  326;  McCoUixter  v.  Wdley,  52 
conveyed  creates  a  resulting  trust  in  favor  of  Ind.  .382;  Ilnrptn  v.  Stai/hom,  G5  N.  C.  279; 
the  author  of  the  trust  or  of  his  succes.'^ors:  See  J/'jan  v.  Jaques,  19  N.  J.  Eq.  123;  Loring  v. 
Ponce  v.  McEry,  47  Cal.  154,  159;  Kennedy  v.     Eliot,  16  Gray,  508. 

867.    J^eneficinry  may  be  restrained  from  disposing  of  interest. 

Sec.  8G7.  The  beneficiary  of  a  trust  for  the  receipt  of  the  rents  and  profits 
of  real  property,  or  for  the  payment  of  an  annuity  out  of  such  rents  and  profits, 
may  be  restrained  from  disposing  of  his  interest  in  such  trust,  during  his  life 
or  for  a  term  of  years,  by  the  instrument  creating  the  trust.  \Aniendnn<nty 
ap;)rorrd  March  30,  1874;  Amnnlmods  1873-4,  223;  took  efect  July  1,  1874.] 

Accumula  ions:  See  ante,  sees.  722  et  scrp;  sec.  859. 

863.    Transfer  by  such  beneficiary  forbidden. 

Section  8GS  was  repealed  by  act  approved  March  30,  1874;  Amendments  1S73-4,  223;  took  effect 
July  1,  18:4. 

869.    Express  trust,  when  deemed  absolute  grant  in  favor  of  piwchascrs  from 

trustees. 

Sec.  8G0.  Where  an  express  trust  is  created  in  relation  to  real  property,  but 
is  not  contained  or  declared  in  the  grant  to  the  trustee,  or  in  an  instrument 
eigned  by  him,  and  recorded  in  the  same  office  with  the  grant  to  the  trustee, 

191 


§§  870-947  PERSONAL  OR  MOVABLE  PROPERTY.  Piv.  II,  Part  III, 

such  f^raut  must  be  deemed  absolute  in  favor  of  purchasers  from  such  trustee 
without  notice,  and  for  a  valuable  consideration.  [Amendment,  approved  March 
30,  1874;  Amendme.nla  1873-4,  223;  Look  effect  Jahj  1,  1874.] 

Purchasers  from  trustee  of  express  trust,        Purchaser,  whsn  charged  with  imphed 
■when  protected:  See  uote  to  sec.  80;},  supra;    or  resulting  trust;  See  sec.  850.  ante. 
sec.  870,  iii/t'a, 

870.  Certain  sales,  etc.,  bij  trustees,  void. 

Sec.  870.  Where  a  trust  in  relation  to  real  property  is  expressed  in  the  instru- 
ment creating  the  estate,  every  transfer  or  other  act  of  the  trustees,  in  contra- 
vention of  the  trust,  is  absolutely  void. 

See  note  to  sec.  809. 

871.  When  estate  of  trustee  to  cease. 

Sec.  871.  When  the  purpose  for  which  an  express  trust  was  created  ceases, 
the  estate  of  the  trustee  also  ceases. 

Cited  iu  Weiseuberi/  v.  Truman,  58  Cal.  03,  72. 


TITLE  V. 
POWERS. 

The  title  upon  powers  was  repealed  upon  the  the  state.  Its  continnance  wonld  serve  no 
recominemlation  of  tlie  cod 'examiners,  Stephen  useful  purpose,  Ijut  would  ratlier  tend  to  em- 
J.  Field,  Jackson  Temple,  and  John  W.  L>\»i-  bai-inss  the  profession.  Tlie  provisions  of  sec- 
nelle,  v  ho  state  in  tlicir  report:  "The  title  tiom  895  and  900  are  embociied  in  other  sec- 
repealed  relates  to  powers  general,  special,  ijene-  tions."  Section  895,  above  refcrn^d  to,  will  l<3 
ficial,  and  in  trust,  aii<l  the  want  of  any  Icgis-  found  embodied  iu  section  858,  and  section  d'jO 
lation  respecting  them  has  never  been  felt  iu  in  section  800. 


PART   III. 

PERSONAL  OR  MOVABLE  PROPERTY. 

TrruE  L     Personal  Phopertt  in  General ...,..,.,   946 

II.     Particulaii  Kinds  op  Personal  Property 953 

TITLE  L 
PERSONAL  PROPERTY  IN  GENERAL. 

946.  7?_v  icJiaf  (aw  governed. 

Sec.  94G.  If  there  is  no  law  to  the  contrary  in  the  j^lace  where  personal 
property  is  situated,  it  is  deemed  to  follow  the  person  of  its  owner,  and  is  ^'ov- 
erned  by  the  law  of  his  domicile,  [lli'-enaclment,  approved  March  9,  187G; 
Amendments  1875-G,  78;  took  effect  xixlieth  day  after  passage.] 

The  section  wns  re-cnactrd  in  1S76  to  prevent  the  distribution  of  a  decedent's  personalty  sit- 

a  confusion  aiisiiit,'  from  a  sup])os,iblo  accidental  uated  in  otiier  places  than  that  of  liis  domicile, 

repeal  of  tlie  original  section  by  Stats.  187.'J-4,  see  an  instructive  note  entitled  "Ancdlaiy  AJ- 

2"23.  niinistTatiou,"  in  (Joodall  v.  Marshal/,  35  Am. 

liaw  of  the  domicile  goveniing  in  respect  Dec.  433. 
to  personalty.     For  (piestions  connected  with 

947.  Future  interest  in  perishable  pmperti/. 

Section  0 17  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  223;  took  effect 
July  1,  1874. 

192 


TiTLB  n,  Chap.  LJ  THINGS  IN  ACTION.  §§  953,  954 

TITLE  II. 

PARTICULAR  KINDS  OF  PERSONAL  PROPERTY. 

CiuPTER  I.     Things  in  Action 953 

II.     Shipping OGO 

III.     Products  of  the  Mind 980 

rV.     Other  Kinds  of  Personal  Property 991 

CHAPTER  t 
THINGS  IN  ACTION. 

953.  Thing  in  action  defined. 

Sec.  953.     A  thing  in  action  is  a  right  to  recover  money  or  other  personal 

property  by  a  judicial  proceeding.     [Amendment,  approved  March  30,  1874; 

Amendments  1873-4,  223;  took  effect  July  1,  1874.] 

The    section    as    originally   adopted    read:  a    construction    rendered    impossible   by  th» 

"Sec.  953.  A  thing  in  action  is  a  right  to  re-  amendment  of    1874.     The   words    "  ])ersonali 

cover  soniething  1  y  a  judicial  proceeding."    As  property"  include  things  iu  action:  Sec.    14^ 

it  80  stood,  "something"  might  include  realty,  ante,  subd.  3. 

954.  Transfer  and  survivorship. 

Sec  954.  A  thing  in  action,  arising  out  of  the  violation  of  a  right  of  prop- 
erty, or  out  of  an  obligation,  may  be  transferred  by  the  owner.  Ujiou  the 
deatli  of  the  owner  it  passes  to  his  personal  representatives,  except  where,  ia 
iao  cases  provided  in  the  Code  of  Civil  Procedure,  it  passes  to  his  devisees  or 
successor  in  officOi^ 

Acsi^ning  things  in  action. — "By  section  boats  on  certain  lines  of  travel:   Cal.  Steam 

9.14  it  is  proposed  to  establish  one  rule  for  the  Nav.  Vo.v.   IVru/ht,  G  Id.  258;   or  of  contract 

assignability  and  the  survivorship  of  things  in  to  pay,  for  street  work:  Cochrane  v.  Taylor,  29 

action:  Slc    McKee  v.  Judil,   UN.   Y.   622;  Id.  129;  7'o///or  v.  Pa/mpr,  31  Id.  240;  or  a  con- 

ilcech  V.  Stover,  19  Id.  26:  "  Code  commission-  tract  for  the  use  of  a  stallion:   Dolt  v.  Aiider- 

ers'  note.     That  is,  this  section  states  the  law  son,  27  Id.  248.     And  the  following  causes  o£ 

with  respect  to  the  assignability  of  choses  in  action  sounding  in  tort  have  been  held  to  pass 

action  in  harmony  with  tlie  now  generally  ac-  by  assignment:  A  right  of  action  for  tlie  con- 

ccpted  ])rinuiplo  "that  causes  of  action  wliich  version  of  personalty:  Lnzard  v.   Whe<ler,22 

survive  and  p:ss  to  the  personal  representatives  Id.  139;  a  claim  for  damages  occasioned  by  a 

of  a  deceilent  as  assets,  or  continue  as  liabili-  tres[as3  on  land:  More  v.  Maasini,  32  Id.  590. 

tics  against  suc'i  representatives,  arc  in  general  But  simple  personal  torts,  which  do  not  survive 

assignable,  whilo  those  causes  of  action  which  to  the  executor,  are  not  assignable;   as  a  causa 

do  not  thus  survive  are  not  assignable:"  Pome-  of  action  for  malicious  prosecution:  Lan-rejice 

roy  on  Remedies,  sec.  146.     For  a  statement  of  v.  Martin,  22  Id.  173;  and  see  Boyd  v.  Blank- 

what  causes  of  action  survive  in  favor  of  an  man,  29  Id.   19.     And  a  mere  vendoi's  lien, 

executor  or  administrator,  and  therefore  may  after  an  absolute  conveyance,  is  not  assignable: 

be  assigned,  sec  Code  Civ.  Proc,  sees.   1582,  Bavm  v.  (/rii/sbi/,  21   Id.   172;   LewU  v.  Covil- 

1583.     From    these   sections    it    will    be    per-  land.  Id.  178;  Wil/inws  v.  Youngir,  Id.  227. 
coived  that  causes  of  actions  founded  upon  con-         Assigning  part  of   entire   demand  does  not 

tr.acts,  and  arising  from  injuries  to  the  estate  entitle  assignee  to  sue  .igainst  defendant's  ob- 

whcrcby  its  value  has  been  diminished,  sur-  jcction:    'J'homaa  v.   Uoch  Is/and  Co.,  54  CaL 

vive:  See  a  valuable  discussion  of  this  subject  ia  578;  <inil  see  M anion  v.  Pioche,  8  Id.  536;  Orain 

Pomcroy  on  Pemedies,  sees.  144etseq.  The  fol-  v.  Aldrich,  ,38  Id.  514. 

lowing  rights  of  action  arising  out  of  contracts         See  also  "Transfer  of  Obligations,"  sec.  ]453» 

have  been  declared  assignable  in   this  state:  post. 

Breach  of  agreement  to  jjay  money:  Gray  v.        Suing  on  chos93  in  action:  See  Code  CiTa 

Oarriion,  9  Cal.  325;  or  of  contract  not  to  run  Proc,  sees.  367-369,  1582,  1583. 

Civ.  CouE— 13  193 


§§  9G0-970  PERSONAL  OR  MOVABLE  PROPERTY.  [Div.  II.  Paet  HI, 

CHAPTEK  IL 

SHIPPING. 

Article  I.    General  Provisions 960 

II.    Rules  of  Navioation 970 

ARTICLE  I. 

GENEEAL    PEOVISIONS. 

560.  Ship,  shipping  terms  defined. 

Sec.  9G0.  The  term  "  ship,"  or  "  shippinf^f,"  when  used  in  this  code,  includes 
Bteauiboats,  sailing  vessels,  canal-boats,  barges,  and  every  structure  adapted  to 
Le  navigated  from  place  to  place  for  the  transportation  of  merchandise  or  per- 
eons.  \Ame)idment,  approved  March  30,  1874;  Amendments  1873-4,  224;  took 
effect  Jahj  1,  1874.] 

561.  Aj^purtenances  and  equipments. 

Sec.  9G1.  All  things  belonging  to  the  owners,  which  are  on  board  a  ship, 
and  are  connected  with  its  proper  use,  for  the  objects  of  the  voyage  and 
adventure  in  which  the  ship  is  engaged,  are  deemed  its  appurtenances. 

862.    Foreign  and  domestic  navigation. 

Sec  9G2.  Ships  are  engaged  either  in  foreign  or  domestic  navigation,  or  in 
the  fisberies.  Ships  are  engaged  in  foreign  navigation  when  passing  to  or  from 
a  foreign  country;  and  in  domestic  navigation  when  passing  from  place  to  place 
within  the  United  States. 

963.  Foreign  and  domestic  ships  dvitingiiished. 

Sec  9G3.  A  ship  in  the  port  of  a  state  to  which  it  belongs  is  called  a  domes- 
tic ship;  in  another  port  it  is  called  a  foreign  ship. 

964.  Several  oivners. 

Sec  9G4.  If  a  ship  belongs  to  several  persons,  not  partners,  and  they  differ 
as  to  its  use  or  repair,  the  controversy  may  be  determined  by  any  court  of  com- 
petent jurisdiction. 

S65.    Owner  for  voxjage. 

Sec  9G5.  If  the  owner  of  a  ship  commits  its  possession  and  navigation  to 
another,  that  other,  and  not  the  owner,  is  responsible  for  its  repairs  and  sup- 
plies. 

Charter  party  defined:  See  jdos^  sec.  10.59.  sible  accordingly.  Anrl  this  responsibility  is 
Repairs  and  supplies  famished  ship. —  not  altered  although  the  owner  lias  parted 
The  charterer  may  becotne  the  owner  pro  hac  witli  the  right  to  control,  victual,  and  man  tlie 
ince:  (Ja/davdC.  M.  Co.  yr.JeniiiiKj!^,  AiiCaX.  173;  vessel,  if  such  arrangement  is  nut  <Iisclosed  to 
and  then  tlie  general  owner  will  not  be  liable  shippers:  Tomlinson  v.  Ilo't,  49  Id.  .310. 
on  contracts  of  affreightments  or  for  supplies:  The  master  is  presumed,  even  at  lioino  ports, 
Id,  15ut  where  the  general  owner  has  not  sur-  to  have  authority  to  contract  for  ship's  stores: 
rendered  the  ship  to  a  charterer  he  is  respon-     Crawford  v.  Roberts,  50  Cal.  235. 

966.    Registry,  etc. 

Sec  9G6.  The  registry,  enrollment,  and  license  of  ships  are  regulated  by 
acts  of  congress. 

AETICLE  II. 

BULE3    OF   NAVIGATION. 

'970.   Collisions. 

Sec.  970.  In  the  case  of  ships  meeting,  the  following  rules  must  be  observed, 
in  addition  to  those  prescribed  by  that  part  of  the  Political  Code  which  relates 
to  navigation: 

191 


TiTLK  II,  Chap.  II.]  SHIPPING.  §§  971,  972 

Jlul'S  as  to  ships  meeting  each  other. 

1.  Whenever  any  ship,  whether  a  steamer  or  sailing  ship,  proceeding  in  one 
direction,  meets  another  ship,  whether  a  steamer  or  sailing  ship,  proceeding  in 
another  direction,  so  that  if  both  ships  were  to  continue  their  respective  courses 
they  would  pass  so  near  as  to  involve  the  risk  of  a  collision,  the  helms  of  both 
ships  must  be  put  to  port  so  as  to  pass  on  the  port  side  of  each  other;  and  this 
rule  applies  to  all  steamers  and  all  sailing  ships,  whether  on  the  poi't  or  star- 
board tack,  and  whether  close-hauled  or  not,  except  where  the  circumstances 
of  the  case  are  such  as  to  render  a  departure  from  the  rule  necessary  in  order  to 
avoid  immediate  danger,  and  subject  also  to  a  due  regard  to  the  dangers  of 
navigation,  and,  as  regards  sailing  ships  on  the  starboard  tack  close-hauled,  to 
the  keeping  such  ships  under  command. 

The  rule  for  sailing  vessels. 

2.  In  the  case  of  sailing  vessels,  those  having  the  wind  fair  must  give  way  to 
those  on  a  wind.  When  both  are  going  by  the  wind,  the  vessel  on  the  star- 
board tack  must  keep  her  wind,  and  the  one  on  the  larboard  tack  bear  up 
strongly,  passing  each  other  on  the  larboard  hand.  When  both  vessels  have 
the  wind  large  or  abeam,  and  meet,  they  must  pass  each  other  in  the  same  way 
on  the  larboard  hand,  to  efifect  which  two  last-mentioned  objects  the  helm  must 
be  put  to  port.  Steam-vessels  must  be  regarded  as  vessels  navigating  with  a 
fair  wind,  and  should  give  way  to  sailing  vessels  on  a  wind  of  either  tack. 
Eult'sfor  steamers  in  narrow  channels. 

3.  A  steamer  navigating  a  narrow  channel  must,  whenever  it  is  safe  and  prac- 
ticable, keep  to  that  side  of  the  fairway  or  mid-channel  which  lies  on  the  star- 
board side  of  the  steamer. 

Same. 

4.  A  steamer  when  passing  another  steamer  in  such  channel  must  always 
leave  the  other  upon  the  larboard  side. 

Rales  for  steam -vessels  on  different  courses. 

5.  When  steamers  must  inevitably  or  necessarily  cross  so  near  that,  by  con- 
tinuing their  respective  courses,  there  would  be  a  risk  of  collision,  each  vessel 
must  put  her  helm  to  port,  so  as  always  to  pass  on  the  larboard  side  of  each 
other. 

Mediiig  of  steamers. 

G.  The  rules  of  this  section  do  not  apply  to  any  case  for  which  a  different 
rule  is  provided  by  the  regulations  for  the  government  of  pilots  of  steamers 
approaching  each  other  within  sound  of  the  steam-whistle,  or  by  the  regula- 
tions concerning  lights  upon  steamers,  prescribed  under  authority  of  the  acts 
of  congress  approved  August  thirtieth,  eighteen  hundred  and  lifty-two,  and 
Api-il  twenty-ninth,  eighteen  hundred  and  sixty-four. 

971.  Collision  from  breach  of  rules. 

Sec.  971.  If  it  appears  that  a  collision  was  occasioned  by  failure  to  observe 
any  rule  in  the  foregoing  section,  the  owner  of  the  ship  by  which  such  rule  is 
infringed  cannot  recover  compensation  for  damages  sustained  by  the  ship  in 
such  collision,  unless  it  appears  that  the  circumstances  of  the  case  made  a 
departui-e  from  the  rule  necessary. 

972.  ri  reaches  of  such  rules  to  imply  willful  default. 

Sec  972.  Damage  to  person  or  property  arising  from  the  failure  of  a  ship 
to  observe  any  rule  of  section  nine  hundred  and  seventy  must  be  deemed  to 

195 


i§  973-983  PERSONAL  OR  MOVABLE  PROPERTY.  [Drv.  II,  Part  HI, 

have  been  occasioned  by  the  willful  default  of  the  person  in  charge  of  the  deck 
cf  such  ship  at  the  time,  unless  it  appears  that  the  circumstances  of  the  case 
made  a  departure  from  the  rule  necessary. 

Q73.  Los.%  how  apportioned. 

Sec.  973.     Losses  caused  by  collision  are  to  be  borne  as  follows : 

1.  If  either  party  was  exclusively  in  fault,  he  must  bear  his  own  loss  and 
compensate  the  other  for  any  loss  he  has  sustained; 

2.  If  neither  was  at  fault,  the  loss  must  be  borne  by  him  on  whom  it  falls; 

3.  If  both  were  in  fault,  the  loss  is  to  be  equally  divided,  unless  it  appears 
that  there  was  a  great  disparity  in  fault,  in  which  case  the  loss  must  be  equi- 
tably apportioned; 

4.  If  it  cannot  be  ascertained  where  the  fault  lies,  the  loss  must  be  equally 
divided. 

Loss  by  collision. — Subd.  1.  Party  exclu-  345;  The  Catharine,  17  How.  170;    Cmhing  v. 

sively  in  fault  innst  hear  his  own  loss  and  com-  The    Fraxer,    21    I<\.    184;    liofjem   v.    The  St, 

pensate  the  other  for  hi3  loss:  Ki'llijv.  (.huniiiig-  Ch'irlen,  19  h\.  108;    The  Cat ht trine  v.  JJickin- 

ham,  1  Cal.  30");   liinis  v.  Steamer  Senator,  II.  son,  17  Id.  177;    Tajfr  v.  Shfffi-r,  8  Moo.  P.  C. 

4oG;     Thi'   Sciolo,    2  Ware   (Dav.),    359;     The  73.     It  is  otherwise  at  common  law:   Lambert 

Wof>ilrop-S:inx,  2  Dods.  83;   The  Monf  m  v.  The  v.  Staten  I.  R.  /.'.  Co.,  70  N.  Y.  104;  Simpson 

Zrl.ra,  2  Hugiits,  (U;   The  <  lam,  102  U.  S.  200;  v.  //ami,  36  Am.  Dec.  231;  Dowell  v.  Gen.  St. 

The  MornhK/  l/t;iht,  2  Wall.  rioO.  N.<'o.,5  Kl.  &  Bl.  I9.>.    In  Grmoold  v.  Sharpe, 

Subd.  2.     Neither  iii  fault:  See  The  Wood-  2  Cal.  17,  it  was  held  that  the  plaintiff  must  be 

rop  .V(//(«,  2Dods.  83;  Sleinbarkw  Rae,  14  How.  faultless. 

53J;    The   Morninti   /Juht,  2   Wall.  5.i0;    Tlie  Subd.  4.      "WTisre  fault  unknown:    The 

Clarila,  23  How.  11;  T/te  Itinerant,  2  \V.  Hob.  Seiolo,  2  Ware(Da\'.),  339;  Lueax  v.  The  sicann, 

23n.  6  McLean,  282;  The  XanlUns,  Ware,  i)'2<).     For 

Subd.  3.     Both  in  fault. — The  rule  above  a  valunble  discnssinn  of  tliis   subject  and  of 

mentioned  in  this  subdivision  is  the  rule  in  questions  connected   with   it,   see  tiie  note  to 

adiuiialty  courts:    The  Continental,   14  Wall,  liroudwed  v.  Swijert,  45  Am.  Dec.  51  et  seq. 


CHAPTER  III. 

PRODUCTS  OF  THE  MIND. 

98D.    JTow  far  the  s^uhjpcl  nf  ownemliip. 

Sec.  980.  The  author  of  any  product  of  the  mind,  whether  it  is  an  invention, 
or  a  composition  in  letters  or  art,  or  a  design,  with  or  without  delineation,  or 
other  graphical  rej)resentation,  has  an  exclusive  ownership  therein,  and  in  the 
representation  or  expression  thereof,  which  continues  so  long  as  the  product 
and  the  i*epresentations  or  expressions  thereof  made  by  him  remain  in  his  pos- 
session. 

Trade-marlsa;  Sec  Pol.  Code,  sees.  3196  et  seq.,  and  notes,  and  sec.  991  of  this  codo. 

881.    Joitit  authorship. 

Sec  981.  Unless  otherwise  agreed,  a  product  of  the  mind  in  the  production 
of  which  several  persons  are  jointly  concerned  is  owned  by  them  as  follows: 

1.  If  the  product  is  single,  in  equal  proportions; 

2.  If  it  is  not  single,  in  proportion  to  the  contribution  of  each. 

982,  Tramfer. 

Sec.  982.  The  owner  of  any  product  of  the  mind,  or  of  any  representation 
or  expression  thereof,  may  transfer  his  property  in  the  same. 

983.  Effect  of  publicalion.. 

Sec  983.  If  the  owner  of  a  product  of  the  mind  intentionally  mates  it  public, 
a  copy  or  reproduction  may  be  made  public  by  any  person,  without  responsi- 
bility to  the  owner,  so  far  as  the  law  of  this  state  is  concerned. 

196 


Title  II,  Chap.  IV.]    OTHER  KINDS  OF  PERSONAL  PROPERTY. 


i  984-991 


984.  Subsequent  inventor,  author,  etc. 

Sec.  084.  If  the  owner  of  a  product  of  the  mind  does  not  make  it  public,  any 
other  person  subsequent!}'  and  originally  producing  the  same  thing  has  the  sa:ue 
right  therein  as  the  prior  author,  which  is  exclusive  to  the  same  extent  against 
all  persons  except  the  piior  author,  or  those  claiming  under  him. 

985.  Private  writings. 

Slc.  085.  Letters  and  other  private  communications  in  writing  belong  to  the 
person  to  whom  they  are  addressed  and  delivered;  but  they  cannot  be  published 
against  the  will  of  the  writer,  except  by  authority  of  law. 

See  Droiie  on  Copyright,  127  et  seq. 


CHAPTER  rV. 

OTHER  KINDS  OF  PERSONAL  PROPERTY. 

991.    Trade-mark,  lohat  may  be  appropriated. 

Sec.  *.;91.  One  who  produces  or  deals  in  a  particular  thing,  or  conducts  a 
particular  business,  may  appropriate  to  his  exclusive  use,  as  a  trade-mark,  any 
form,  symbol,  or  name,  which  has  not  been  so  appropriated  by  another,  to 
designate  the  origin  or  ownership  thereof,  but  he  cannot  exclusively  approjiri- 
ate  any  designation,  or  part  of  a  designation,  which  relates  only  to  the  name, 
qualit}',  or  the  description  of  the  thing  or  business,  or  the  place  where  the 
thi  g  is  produced  or  the  business  is  carried  on.  [Anv'ndinent,  approved  JLirah 
30,  1874;  Amendments  1873-4,  224;  took  efect  July  1,  1874.] 

Code,  sees.   3198 


Trade-marks:    See   Pol, 
3198. 

Tlio  commissioners,  in  the  Political  Code, 
sec.  3 1 90.  say  tliat  this  section  is  ha.sed  maiidy 
on  tlie  statute  of  20  Vict.,  c.  88,  sec.  1;  and 
refer  to  Fieltl's  Draft  Intern.  Code,  269,  for 
much  valnal)le  information. 

Irade  marks.— The  importance  of  the  stat- 
utory enactments  and  code  regulations  of  the 
Beveral  states  concerning  trade-marks  has 
greatly  increased  since  the  act  of  congress  re- 
garding them  has  l»een  declared  without  au- 
thority ill  the  national  constitution,  antl  void: 
Trude-niaric  Ccisex,  100  U.  S.  82.  The  act  of 
congiexs  of  July  8,  1870,  finds  no  support  as 
treating  of  an  invention  or  discovery  within 
the  mcaninL;  of  the  eighth  clause  of  the  eighth 
section  of  the  IVrst  article  of  the  constitution 
of  the  United  States;  nor  was  it  within  the 
power  given  to  congress  to  regulate  conunerce, 
it  not  liciiig  confined  to  commerce  with  forci 


The  principle  vT'hioli  governs  all  cases  of 
trada-mirks  undoubtedly  is  t!iat  no  one  is 
permitte<l  toaf)propriate  the  benefit  uf  another's 
reputation:  2  Morgan's  Law  of  Literature.  '2'tl. 
In  such  cases,  the  court  proceeds  on  the  ground 
that  the  complainant  has  a  valuable  interest  in 
the  good-wid  of  his  tratle  or  business,  and  hav- 
ing adopted  a  particul  ir  label,  sign,  or  traiie- 
mark,  indicating  to  Iiis  customers  that  the 
article  bearing  it  is  made  or  sold  by  him  or  by 
his  autliority,  or  that  lie  carries  on  business  at 
a  particular  place,  he  is  entitled  to  protection 
against  one  wlio  attempts  to  deprive  \\\m.  of  his 
trade  or  customers  by  u.sing  his  labels,  signs, 
or  trade-mark  without  his  knowledge:  McLean 
V.  Flemiii;/.  9(5  U.  8.  2j2;  Coa'x  v.  UoLbrook,  2 
Sandf.  Ch.  580;  Purtridije  v.  Menck,  2  Barb.  Ch. 
101. 

"  Every  one,"  says  the  supreme  court  of  tlie 
Uniteii  States  in  MnniifactariiKj  Co.  v.  Tr'ihu-r, 
101    U.  S.  51,  53,  "is  at  liberty   to  athx  tc 


nations,  among  the  several  states,  or  with  the     product  of  his  own  manufacture  any  symbol  or 


Indian  trilHJS.  Tlie  court  say  that  "the  prop 
eity  in  trade-marks  and  the  right  to  their  ex- 
clusive nye  r-est  on  the  laws  of  the  states,  and 
like  tlie  f;rcat  body  of  the  rights  of  person  and 
of  jiroperty,  ilepenil  on  them  for  security  and 
proteetiuil;  "  and  again:  "The  right  to  adopt 
and  use  a  symliol  or  a  device  toilistinguish  the 
goods  or  i)ro|ierty  made  or  sold  by  the  person 


device,  not  previously  approjiriated,  wliicli  u  ill 
distinguish  it  from  articles  of  the  same  general 
nature  manufactured  or  sold  by  others,  and 
thus  secure  to  himself  tiie  benefits  of  increase  I 
sale  by  reason  of  any  peculiar  excelkm-c  he 
may  have  given  to  it.  Thosvmliolor  device 
thus  becomes  a  sign  to  the  public  of  the  orig  n 
of  the  goods  to  which  it  is  attached,  and  an 


whose  mark  it  is,  to  the  exclusion  of  use  by  all  assurance  that  they  are  the  genuine  article  of 

othei-  persons,  has  been  long  recognized  by  the  the    original   producer.     In   this  way  it    often 

common  law  and  the  chancery  courts  of  Eng-  proves  to  be  of  gre;it  value  to  the  manufacturer 

land  and  of  this  country,  and   by  the  statutes  in  preventing  tlie  substitution  and   sale  of  an 

of  .'<oiiie  of  the  states."  inferior  and  different  article  for  his  products. 

'I'hat  the  right  or  property  in  a  trade-mark  It  becomes  his  trade-mark,  and  the  court  will 

is  reeogni/ed  by  common   law  is  also  supported  protect   him  in  its  exclusive   use,  «uthcr  by  the 

by  the  authority  of  D'-rrimii'r  v.  P!atl.  29  Cal.  imposition  of  damages  for  its  wrongful  appro- 

292;  Fa/Liiihiinj  v.  Lacy,  35  Id.  52;  Burke  v.  prialion,  or  by  restraining  others  from  ajiply- 

Ccuitiui,  45  Id.  407.  ing  it  to  their  goods,  and  compelliuij  them  to 

197 


991 


PERSONAL  OR  MOVABLE  PROPERTY. 


[Div.  II,  Part  III, 


account  for  profits  on  a  sale  of  goods  marked 
with  it."  80  also:  Wolfe,  v.  Ihirnett,  24  La. 
Ann.  97;  Newman  v.  A/vord,  15  N.  Y.  189, 
19G;  BtackweU  v.  WrUjId,  7.i  N.  C.  310,  313; 
Lee.  V.  Haley,  L.  R.,  f)  Ch.  Ap.,  155. 

Defined. — A  trade-mark  is  a  word  or  device 
adopted  or  devised  and  used  by  the  manufac- 
tuief  or  vendor  of  goods  todesi£;nate  tlie  origin 
or  ownership  of  his  goods:  Bnrkc  v.  Camn,  45 
Cal.  407;  and  see  Pen.  Code,  sec.  353.  Or, 
as  more  comprehensively  expressed,  a  trade- 
mark may  consist  of  a  name  (under  some  cir- 
cumstances), sy;iibol,  figure,  letter,  form,  or 
device,  if  adopted  and  useel  by  a  manufacturer 
or  merchant  in  order  to  designate  the  goods  lie 
manuf  ictures  or  sells  to  distinguish  the  same 
from  those  manufactured  or  sold  by  another, 
to  the  end  that  the  goods  may  be  known  in  the 
market  as  his,  and  to  enable  him  to  secure  such 
profits  as  result  from  his  reputation  for  skiil, 
industry,  and  fidelity:  McLean  v.  Fleming,  9j 
U.  S.  254;  Upton  on  Trade-Marks,  9;  Taylor  v. 
Carpenter,  2  8audf.  Ch.  G0.5;  Coddington's  Dig. 
9;  Neicmaii  v.  Alvord.  51  N.  Y.  189.  But  in 
the  words,  device,  or  devices,  used  for  the  trade- 
mark, in  themselves,  no  property  can  be  ac- 
C|Liire.l;  it  is  only  when  they  have  been  ado[)ted 
and  applied  to  goods,  wares,  and  properties  of 
a  certain  sort,  kiad, and  description:  2  Morgan's 
Law  of  Literature,  250;  Candee  v.  Deere,  54 
111.  4.39;  St.  /.oiiii  Piano  JI/j.  Co.  v.  Merkel, 
1  Mo.  A  pp.  .305. 

"What  may  b3  used  as  a  trads-mark. — 
"No  (me  can  claim  protection  for  the  exclusive 
use  of  a  trade-mark  or  trade-name  which  would 
practically  give  him  a  monopoly  in  the  sale  of 
any  goods  other  than  those  produced  or  made 
by  himself.  If  he  could,  the  public  would 
be  injured  rather  than  protected,  for  com- 
petition would  be  destroyed.  Nor  can  a 
generic  name,  or  a  name  merely  descriptive  of 
an  article  of  trade,  of  its  qualities,  ingredients, 
or  cliaracteristics,  be  employed  as  a  trade- 
mark, and  the  exclusive  use  of  it  entitled  to 
legal  protection:"  Canal  Company  v.  Clark,  13 
Wall.  311;  Manii/actiirin/j  Co.  v.  Trainer,  101 
U.  8.  51,  54.  A  sign  placed  over  a  man's  place 
of  business,  with  a  row  of  bcL-r-barrels  painted 
thereon,  and  the  letters  "  P.  B."  and  the  words 
"  Depot  of  the  Celebrated  Philadelphia  Beer" 
thereon,  cannot  be  protected  as  a  trade-mark: 
£>j  lers  v.  Ifinl;  0.3  Cal.  445. 

That  a  gsnerio  name,  or  one  merely  de- 
SOriptive  of  the  qualities  of  an  article,  cannot 
be  used  as  a  trade-mark,  is  also  laid  down  in 
Choya-^ki  v.  Coh^n,  39  Cal.  501,  where  "Anti- 
quarian Bookstore"  was  sought  to  be  pro- 
tected as  a  trade-mark;  Gilmaa  v.  / fiinnewe.il, 
U2  Mass.  139;  U'ofe  v.  Burke,  7  Lms.  151; 
S.  C,  50  N.  Y.  1 15;  Stokes  v.  Laud'jraf,  17  Barb. 
60S;  Ainod-earj  Mt'fj.  Co.  v.  .S/;crtr,  2  8andt.  593; 
Corwin  v.  Dalif,  7  Bosw.  222;  Blji.iiujer  v.  Wat- 
tles, 28  How.  Pr.  203;  Co-swell  v.  Davis,  58  N. 
Y.  223;  Os-./oor/  v.  Allen,  1  Holmes,  185;  Ayer 
V.  Buxhton,  7  Daly,  9;  Candee  v.  Deere,  54  111. 
439,  wliere  it  was  determiued  that  tlie  term 
"Moline"  in  "Moline  plow"  was  not  su3ce;iti- 
ble  of  use  as  a  trade-mark,  Moline  being  tie 
name  of  the  town  where  the  plows  were  made, 
and  of  course  generic;  Bnrke  v.  Ca.ssin,  45  Cal. 
407,  where  "Aromatic  8chledam  8chnapps" 
was  held  not  to  be  entitleil  to  protection  as  a 
traile-mark;  and  as  to  "8chnap;i3"a  similar 
decision  was  reached:  Wol/r  v.  Burke,  7  Lans. 
151;  S.  C,  56  N.    Y.    115.     Other  words  and 


phrases  which  have  been  pronounced  not  capa- 
bleof  use  as  trade-marks  are:  "  Liehig's  Extract 
of  Meat:"  Liebi'/'n  Extract  of  Meal  Co.  v. 
llanbury,  17  L.  T.,  N.  S.,  298;  "8chiedam 
Schnapps:"  The  California  and  New  York  casea 
above  cited;  and  Wolfe  v.  Barnett,  24  La.  Ann. 
97;  "Desiccated  Codfish:"  Town  v.  Stetson,  5 
Abb.  Pr.,  N.  8.,  218;  " Nourishin','  Stout:" 
Ba'fjet  V.  Findlaler,  43  L.  J.  Ch.,  N.  S.,  64; 
"Colonial:"  Colonial  Life  A.ss'n  Co.  v.  Home 
etc.  Co.,  33  L.  J.  Ch.,  N.  S.,  741;  "Cough 
Remedy:"  Oilman  v.  JJunnewell,  122  Mass. 
139. 

Geo3rapliical  names  cannot,  as  a  general 
rule,  be  use<l  and  protected  as  a  trade-mark. 
It  has  been  so  decideil  with  respect  to  "Moline" 
in  "  Moline  plow:  "  Candee  v.  Deere,  54  111.  4.!9; 
"Glendon,"  in  Glendon  Iron  Co.  v.  Uh'er,  75 
Pa.  8t.  599;  "Durham,"  in  Blackwell  v.  Wright, 
73  N.  C.  310.  But  on  the  general  principle  of 
protection  to  a  manufacturer  and  of  information 
to  the  public,  geographical  names  have  been 
protected  as  trade-marks,  where  other  (larties 
not  dwelling  in  the  place,  whose  name  has  beeu 
employed  to  designate  the  articles,  make  a  sim- 
ilar article  and  employ  the  well-known  name 
in  selling  it;  as,  for  example,  "  Worcestershire 
Sauce:"  Lea  v.  WolfAQ  How.  Pr.  157;  "Akron 
Cement:"  Newman  v.  Alvord,  51  N.  Y.  1S9. 
The  name  of  a  spring  which  a  party  owns  and 
whose  waters  he  sells  under  that  name  may  be 
exclusively  used:  Congress  ami  Emjnre  Spring 
Co.  V.  High  Rock  Congress  Spring  C<>.,  45  N. 
Y.  291.  80  also  as  to  "  Bethseda:  "  Dunbar  v. 
Glenn,  42  Wis.  218. 

Individual  name. — "A  person  may  have  a 
right  in  his  own  name  as  a  trade-mark  as 
against  a  person  of  a  different  name:  "  Gilman 
V.  Ilunnewell,  122  Mass.  139;  Rogers  v.  Taiutor, 
97  Id.  291,  296;  Sykes  v.  Sykes,  3  Barn.  & 
Cress.  541;  Croft  v.  Day,  7  Beav.  84;  IhAlaway 
v.  Hoiloway,  13  Id.  209;  Burgess  v.  Burgess,  3 
DeG.  M.  &  G.  896.  But  "the  better  opinion 
is  that  such  a  party  is  not,  in  general,  entitled 
to  the  exclusive  use  of  a  name  merely  as  such, 
without  more:"  McLean  v.  Fleming,  96  U.  S. 
252,  citing  Mdington  v.  Fox,  3  Myl.  &  Cr.  338; 
Dent  v.  Tarpin,  2  Johns.  &  H.  139;  Mancely  t. 
Maneely,  62  N.  Y.  427.  And  he  cannot  have 
such  a  right  as  against  another  person  of  the 
same  name,  unless  the  ilefendant  u  es  a  form  of 
stamp  or  label  so  like  that  used  by  the  plaintiff 
as  to  represent  that  the  defendant's  goods  are 
of  the  plaintiff's  manufacture:  Oilman  v.  linn- 
H'well,  122  Mass.  139;  McLean  v.  Fleming,  96 
U.  S.  245,  252;  Burgess  v.  Burgess,  3  DcG.  M. 
&  G.  896:  Colladay  v.  Baird,  4  Phila.  139; 
Sykes  v.  Sykes,  3  Barn.  &  Cress.  541;  Croft  v. 
Day,  7  Be.iv.  89;  Rogers  v.  Taintor,  97  Mass. 
291.  Other  decisicms  in  which  the  question  of 
"  name "  as  trade-mark  has  been  raised  are: 
Holmes  v.  Holmes,  37  Conn  278;  Meriden 
Britannia  Co.  v.  Parker,  39  Id.  450;  Coirnnckael 
V.  L  I  timer,  11  R.  I.  395;  Burke  v.  Ca-ssin,  45 
Cal.  407;  Coats  v.  Piatt,  17  Leg.  Inst.  213; 
8.  C,  7  Pittsb.  L.  J.  361;  Stonebreaker  v.  Stone- 
breaker,  33  M  1.  252. 

Misoellansousinstanoes. — Theoouplingto 
gather  in  a  new  combination  of  words  which  be- 
fore had  been  used  apart,  and  had  entered  into 
the  common  or  scientific  vocabulary,  does  not 
give  a  right  to  the  exclusive  use  of  such  com- 
bination, where  it  is  not  indicative  of  origin, 
make,  use,  and  ownership  alone,  but  also  or 
quality  and  other  characteristics:    Caswell  V 


198 


Tm-B  II,  Chap.  IV.]  OTHER  KINDS  OP  PERSONAL  PROPERTY. 


§§  902,  993 


Davis,  58  N.  Y.  223.  That  a  system  of  num- 
bering adopted  by  a  manufacturer  to  designate 
goods  of  his  make  may  be  used  as  a  trade- 
mark, see  "303,"  protected  in  GiUoll  v.  Ester- 
brook,  48  Id.  374.  But  where  a  combination 
of  letters  indicate  merely  the  quality  of  an 
article,  and  forms  a  well-known  term  in  trade, 
they  cannot  be  used  r.s  a  trade-mark:  Mann- 
/acluriiiif  Co.  v.  Trainor,  101  U.  S.  51.  So 
also  with  respect  to  "IXL:"  Lichtenstein  v. 
Melliff,  8  Or.  404. 

The  name  of  a  i)lace  of  business,  e.  g., 
"No.  10  South  Water  street,"  will  be  pro- 
tected: GIni  <fc  Hall  Mfg.  Co.  v.  J  J  all,  Gl  N. 
Y.  220.  The  proprietor  of  a  hotel  has  a  trade- 
mark in  the  name  of  a  liouse:  Howard  v.  7/e?j- 
riques,  3  Sandf.  72.5;  Woodward  v.  Lasar,  21 
Cal.  448.  And  as  to  the  name  of  a  tlieater, 
8te  Booth  V.  Jurrett,  52  How.  Pr.  169.  The 
publisher  of  a  newspaper  has  a  valid  trade- 
mark in  its  title:  Alatsell  v.  Flanagan,  2  Abb. 
Pr.,  N.  S.,  459;  Stephens  v.  De  Couto,  4  Id. 
47. 

Sale  of  trade-mark. — "The  primary  object 
of  a  trade-mark  is  to  indicate,  by  its  meaning 
or  association,  the  origin  of  the  article  to  wliich 
it  is  affixed.  As  distinct  property,  separate 
from  the  article  created  by  the  original  pro- 
ducer or  manufacturer,  it  may  not  be  the  sub- 
ject of  sale;  but  when  the  trade-mark  is  affixed 
to  articles  manufactured  at  a  particular  estab- 
lishment, and  acquires  a  special  reputation  in 
connection  with  tiie  place  of  manufacture,  and 
that  establishment  is  transferred,  either  by  con- 
tract or  by  operation  of  law,  to  others,  tiie  right 
to  the  use  of  the  trade-mark  may  be  lawfully 
transferred  witli  it.  Its  subsequent  use  by  the 
person  to  whom  tlie  establishment  is  transfi-rred 
is  considered  as  only  indicating  that  tlie  goods 
to  which  it  is  affixed  are  manufactured  at  the 
same  place,  and  are  of  the  same  character,  as 
those  to  which  the  mark  was  attached  by  its 
original  designer.  Such  is  the  purport  of  the 
language  of  Lord  Cranworth  in  the  case  of 
Leather  Cloth  Company  v.  American  Leather 
Cloth  Co.,  reported  in  11  Jur.,  N.  S.,  513;  see 
also  Ainsu'orth  v.  Walmdey,  44  L.  J.  355;  and 
Hall  V.  narrows,  10  Jur.,  N.  S.,  55:"  Kidd  v. 
Johnson,  102  U.  S.  G17.  The  same  principle 
is  followed  in  Witthatts  v.  Braun,  44  Md.  303; 
but  wliether  a  trade-mark  whose  reputation  is 
founded  on  the  excellence  of  the  manufacture, 
or  the  skill  and  honesty  of  the  manufacturer, 
can  be  assigned,  see  Carmichael  v.  Latimer,  1 1 
R.  I.  395.  ' 

Infringement  of  trade- mark. — What  de- 
gree of  resemblance  is  necessary  to  constitute 
au  infringement  is  incapable  of  exact  definition, 
as  applicable  to  all  cases.  All  that  courts  of 
justice  can  do  in  that  regard  is  to  say  that  no 
trader  can  adopt  a  trade-mark  so  resembling 


that  of  another  trader  as  that  ordinary  pur- 
chasers, buying  with  oi'dinary  caution,  are 
likely  to  be  misled.  "If,"  say  tlie  supreme 
court  of  the  United  States  in  McLean  v.  Flem- 
ing, 96  U.  S.  245,  253,  "  the  form,  marks,  con- 
tents, words,  or  tlie  special  arrangement  of  the 
same,  or  the  general  appearance  of  the  alleged 
infringer's  device,  is  such  asM'ould  l)e  likely  to 
mislead  one  in  the  ordinary  course  of  purchas- 
ing tlie  genuine  article,  then  the  similitude  ia 
such  as  entitles  the  injured  party  to  C(iuitable 
protection,  if  he  takes  seasonable  measures  to 
assert  his  rights,  and  to  prevent  their  continued 
invasion:  James  v.  James,  L.  R.,  13  Eq.,  425; 
Singleton  v.  Bolton,  3  Doug.  293;  Morrison  v. 
Salmon,  3  Man.  &  G.  385;  Boardman  v.  Mer- 
iden  liritannia  Co.,  35  Conn.  413."  And  in  the 
course  of  the  same  opinion  it  is  further  stated: 
"Two  trade-mai'ks  are  substantially  the  same, 
in  legal  contemplation,  if  the  resemblance  is 
such  as  to  deceive  an  ordinary  purchaser  giving 
such  attention  to  the  same  as  such  a  purchaser 
usually  gives,  and  to  cause  him  to  purchase  the 
one  supposing  it  to  be  the  other:  Gorham  Co. 
V.  White,  14  Wall.  511."  The  same  rule  is  thus 
negatively  stated  by  Chief  Justice  Cray  'n\  Gil- 
man  V.  J/uiinewell,  122  Mass.  139,  148:  "All 
the  authorities  agree  that  the  court  will  not  re- 
strain a  defendant  from  the  use  of  a  label,  on 
the  grouud  that  it  infringes  the  plaintifl's  trade- 
mark, unless  the  form  of  the  printed  words,  the 
words  themselves,  and  the  figures,  lines,  and 
devices,  are  so  similar  that  any  person,  with 
such  reasonable  care  and  observation  as  the 
public  generally  are  capable  of  using,  and  may 
be  expected  to  exercise,  would  mistake  the  one 
for  the  other."  The  same  general  test,  of  "  rea- 
sonably calculated  to  deceive  the  purchaser,"  ia 
also  approved  in  Burke  v.  Cassin,  45  Cal.  467; 
Blackwell  v.  Wright,  73  N.  C.  310;  Fd/ey  v. 
Fassett,  44  Mo.  168;  Rowley  v.  J/oii(/h/o7i,  2 
Brewst.  303;  Po/tham  v.  Cole,  66  N.'  Y.  69; 
Delaware  <£•  Hudson  Canal  Co.  v.  Clark,  13 
Wall.  311;  Frese  v.  Bachof,  13  Blatclif.  234; 
Ellis  v.  Zei  lin,  42  Ga.  91. 

A  demurrer  to  a  complaint  for  the  infringe- 
ment of  a  trade-mark  must  be  overruled  if  any 
of  the  names  employed  are  proper  trade-marks: 
Shaefer  v.  Korlnl,  11  Pac.  C.  L.  J.  215. 

Injunction. — Consult  above  cases,  under 
"Infringement  of  Trade-mark,"  for  exposition 
of  the  remedy  by  injunction.  Also  see  the 
chapter  in  High  on  Injunctions,  sees.  1003  et 
seq.  A  valuable  treatment  of  the  general  sub- 
ject will  be  found  in  Mr.  Tudor's  Leading  Cases 
on  Mercantile  ami  Maritime  Law,  vol.  2,  sees. 
508  et  seq.  In  6  Wait's  Action  and  Defenses, 
tit.  Trade-mark,  is  a  comprehensive  gathering 
of  authorities. 

See  also  a  valuable  note  to  Partridge  v. 
Menck,  47  Am.  Dec.  284. 


992.  Good-mU  of  business. 

Sec.  992.     The  good-will  of  a  business  is  the  expectation  of  continued  publio 

patronage,  but  it  does  not  include  a  right  to  use  the  name  of  any  person  from 

■whom  it  was  acquired. 

Good- w^ill:  See  ;/os<,  see  1674,  and  references  will  does  not  enter  into  and  form  an  element 
m  the  note  thereto.  See  also  editorial  treat-  in  t!ie  value  of  shares  of  stock  of  a  corporations . 
ment  of  the  subject  in  15  Fed.  Rep.  312.  Good-    S.  V.  W.  W.  v.  SchoUler.  62  Cal.  69,  118. 

993.  Good-will  transferable. 

Sec  993.    The  good-will  of  a  business  is  property,  transferable  like  any  other. . 

199 


J§  994-1006  ACQUISITION  OF  PROPERTY.  [Div.  II,  Part  IV, 

994.    Tille  deeds. 

Sec.  994.  Instruments  essential  to  the  title  of  real  property,  and  wLicli  are 
not  kept  in  a  public  office  as  a  record,  pursuant  to  law,  belong  to  the  person  in 
■whom,  for  the  time  being,  such  title  may  be  vested,  and  pass  with  the  title. 


PART  lY. 
ACQUISITION  OF  PROPERTY. 

Title  I.     Modes  in  "Which   Property  may  be  Acquired 1000 

II.     Occupancy , 1006 

III.  Accession 1013 

IV.  Transfer 1039 

v.     Homesteads 1237 

VI.     Wills 1270 

VIL     Succession  .........* 1383 

TITLE    I. 
Modes  in  which  ppvOperty  may  be  acqttipvEd. 

1000.  Property,  how  acquired. 

Sec.  1000.     Property  is  acquired  by: 

1.  Occupancy; 

2.  Accession; 

3.  Transfer; 

4.  Will;  or, 

5.  Succession. 

1001.  Acquisition  of  property  by  exercise  of  eminent  domain. 

Sec.  1001.  Kny  person  may,  without  further  legislative  action,  acquire  pri- 
vate property  for  any  use  specified  in  section  twelve  hundred  and  thirty-eight 
of  the  Code  of  Civil  Procedure,  either  by  consent  of  the  owner  or  by  proceed- 
ings had  under  the  provisions  of  Title  VIL,  Part  III.,  of  the  Code  of  Civil 
Procedure;  and  any  person  seeking  to  acquire  property  for  any  of  the  uses 
mentioned  in  such  title  is  "an  agent  of  the  state,"  or  a  "  person  in  charge  of 
such  use,"  within  the  meaning  of  those  terms  as  used  in  such  title.  This  sec- 
tion shall  be  in  force  from  and  after  the  fourth  day  of  April,  eighteen  hundred 
and  seventy- two. 

IBniiaent  domain:  See  sec.  12.38,  Code  Civ.     exercise    the    right  of    eminent   domain:    Si 
Proc,    tor   treatment    of    this    sul)ject.     Tlie     IJtleiia  Water  Co.  v.  Forbes,  Gl  Cal.  \b2. 
»bove  sectiou  authorizes  a  water  corporatiou  to 

TITLE    II. 

OCCUPANCY. 
1006.    Simple  occupancy. 

Sec.  lOOG.     Occupancy  for  any  period  confers  a  title  sufficient  against  all, 

except  the  state  and  those  who  have  title  by  prescription,  accession,  transfer, 

will,  or  succession. 

"  The  doctrine  is  new  well  settled  that  a,  cover  the  property  upon  in  any  action  ag-iinst 
prior  ]ii>sseysioii  is  prt'sum!)tive  evidence  of  a  person  havinj,'  no  better  riglit:  as  applied  to 
title,  and  unexplained,  is  satiicieut  title  to  re-     the  action  of  ejectment,  for  ins'aiice,  tho  au- 

200 


Title  III,  Chap.  I.] 


ACCESSION  TO  REAL  PROPERTY. 


§§  1007-1014 


thorities  upon  this  point  are  numerous  and  de- 
cisive. It  is  not  necessary  that  there  should 
be  a  continued  possession,  corresponding  in 
point  of  time  to  the  period  prescribed  liy  the 
Btatute  of  limitations,  to  furnish  this  presump- 
tion of  riy,ht.  When  continued  for  less  than 
this  I'eriod,  it  will  prevail  as  a  presumptive 
right  until  rebutted  by  proof  of  a  ])rior  posses- 
Bion,  right  of  succession,  legal  title,  or  other 
evidence  sufficitnt  to  defeat  such  presumption. 
In  cases  whei  e  no  other  evidence  of  title  than 
possession  is  given  by  either  party,  the  prior 
possession  must  prevail,  unless  such  jrior  pos- 
session has  V)een  abandoned,  or  the  subsequent 
possession  has  been  continued  until  protected 
by  lapse  »if  time  and  the  statute  of  limitations. 
In  California  it  has  been  held  that  one  in  the 
actual  jioisessiuu  of  real  property  nm}'  rely 
upon  his  possession  alone  until  the  opposite 
partj'  shows  a  better  right:  Ilawxhur.ft  v.  Lan- 
dir,  2S  Cal.  331.  That  possession,  however 
Bhort,  will  entitle  the  claimant  to  recover,  un- 
less the  defendant  can  account  for  such  pos- 
eessioii,  or  show  a  prior  possession  or  title  in 
himself  or  a  third  person:  Potter  v.  Kiioirles, 
5  Id.  87;  iSiiiiol  V.  Hepburn,  I  Id.  2o-i;  Brad- 
shaw  v.  Trent,  G  Id.  172.  That  in  actions  for 
the  recovery  of  land  possession  is  ])riinary  evi- 
dence of  title:  JJicks  tt  Martin  v.  Davis,  4  Id. 


67;  Plume  v.  Seward,  Id.  94;  Hutchinson  v. 
Perli-y,  Id.  33;  Keane  v.  Vunnovan,  21  Id.  201; 
Sacrnrnenlo  Valley  U.  I',  v.  Mojf'itt,  7  Id.  57; 
yorii<  V.  Hitxscl,  i>  Id.  249;  Ei'<j/is/i  v.  John- 
son,  17  Id.  107.  But  to  constitute  a  possession 
which  will  be  evidence  of  own  isliip,  tliere 
must  be  an  actual  bona  Jide  occuiation — a  pos- 
se.-<4o  jiedix — a  subjection  to  the  will  and  con- 
t  ol  of  the  possessor  as  contradistinguished 
from  the  mere  assertion  of  t.tle  and  the  exer- 
cise of  casual  acts  of  ownershii):  I'liinie  v.  Seiv- 
ard,4  Id.  94;  Lawrence  v.  Fallon,  19  Id.  GS3. 
In  the  case  last  cited,  it  was  said  that  tlie  word 
'occupation  '  might  be  so  usrd  witli  other  ex- 
pressions or  under  peculiar  facts  of  a  case  as  to 
signify  residence,  but  that  ordinarily  the  ex- 
pressions'occujiation,' '/yos^fAVf/o  fiedtK,'  'sub- 
jection to  the  will  and  control,'  are  employed 
as  synonymous  terms,  and  as  signifying  actual 
possession.  As  a  rule,  it  is  more  easy  to  ac- 
quire personal  property  bj  occuiiancy  tlian  real 
property,  on  account  of  possession  being 
stronger  evidence  of  title.  The  reason  of  this 
is  tliat  the  ownership  of  real  property  is  usually 
evidenced  by  writing  and  by  record,  while  the 
reverse  is  true  of  personal  property:  Walker's 
Am.  L.  348;  Tltonibiir<jh  v.  Hand.  7  Cal.  5.34; 
Ln/oidaine  v.  Green,  17  Id.  294:"  From  code 
commissioners'  note. 


1007.    PrcHcription. 

Sec.  1007.  Occupancy  for  the  period  prescribed  by  the  Code  of  Civil  Pro- 
cedure, as  sufficient  to  bar  an  action  for  the  i-ecovery  of  the  property,  confers  a 
title  thereto,  denominated  a  title  by  prescription,  which  is  sufficient  aj2:ainst  all. 

That  an  adverse  user  is  necessary  to    in  which  a  right  by  presciiption  shall  be  ac- 


create  a  prescriptive  title,  and  tliat  the  mere 
use  of  wati  r  <luring  a  season  of  abundance,  and 
without  oltjection  by  the  owner,  is  not  sudicient 
on  which  to  fouml  a  prescription,  By:e  Anaheim 
W.  Co.  V.  Semi-tropic  IF.  Co.,  64  Cal.  185;  rnd 
Bee  an  exhaustive  review  of  cases  by  counsel  in 
ibis  case.     This  section  merely  fixes  the  time 


quired,  but  does  not;  alter  the  re(juisites  which, 
prior  to  the  code,  wero  necessary  to  constitute 
prescription:  Woodruff  v.  XortJi  lUuomjield  G. 
jM.  Co.,  1  We^t  Coast  Rep.  183  (U.  S.  C.  C). 
Adverse  possession  psissing  title:  See 
Code  Civ.  Proc,  sec.  321. 


TITLE   III. 

ACCESSION. 

Chaptee    I.     To  Real  Property ♦ 1013 

II.     To  Personal  Property 1025 


CHAPTER  I. 

ACCESSION  TO  REAL  PROPERTY. 

1013.  Firlitren. 

Sec.  1013.  When  a  person  affixes  his  property  to  the  land  of  another,  with- 
out ill!  agreement  permitting  him  to  remove  it,  the  thing  affixed,  except  as  pro- 
vided in  section  ten  hundred  and  nineteen,  belongs  to  the  owner  of  the  land, 
unless  he  chooses  to  require  the  former  to  remove  it.  [Amendment,  approved 
Mnrrh  80,  1874;  AmendmenU  1873-4,  224;  look  effect  July  1, 1874.J 

Fixtures:  See  ante,  sec.  GG8,  and  note. 

1014.  Alluvion. 

>Si:c.  1014.  Where,  from  natural  causes ,  land  forms  by  imperceptible  degrees 
upon  the  bank  of  a  river  or  stream,  navigable  or  not  navigable,  either  by  accu- 

201 


§§  1015-1019  ACQUISITION  OP  PROPERTY.  [Div.  n.  Part  IV, 

mulation  of  material  or  by  the  recession  of  the  stream,  sucli  land  belongs  to 
tbe  owner  of  the  bank,  subject  to  any  existing  right  of  way  over  the  bank. 

AUuviou. — "Code  Napoleon,  arts.  556,  5o7;  in  New  York  that  it  belonged  to  the  state:  Id. 

Civ.  Code  of  La.,  art.  501;  Morgan  v.  Llvinr/-  Accuinulation  of  material:  Emans  v.  Tumbull, 

siOH,  6  Mart.  lilG;  Livinp-iton  y.  Herman,  9  M.  2  Johns.  313.      The  rule  of   the  cominou  law 

R.  65G.    '  That  ^'round  which  a  river  has  added  gave  to  riparian  owners  the  soil  formed  by  im- 

to  your  estate  Ijy  alluvion  becomes  your  own  perceptible  or  inconsiderable  augmentation  or 

by  law  of  nations;   and  that  is  said  to  be  allu-  deposits,  on  the  ground  or  principle  that  the 

vion  whicli  is  added  so  gradually  that  no  one  profits  and   advantages  of  a  thing   belong   of 

can  judge  how  much  is  added  in  each  moment  right  to  him  who,  under  a  change  of  circum- 

of   time:'   Cuojier'a  Justinian,  lib.  2,  tit.   1;  3  stances,  is  exposed  to  suffer  its  damages  and 

B^irn.  &  Cress.  91.     Imperceptible:   HaUey  v.  losses:  See  U,  S.  Land-ofEce  Report,  1808,  by 

MfConnark,  IS  N.  Y.  147;  Emans  v.  Turnbull,  J.  S.  Wilson,  p.  127:"  Commissioners'  note. 
2  Johns.  313.    If  the  formation  is  sudden,  held 

1015.  Sudden  removal  of  bank. 

Sec.  1015.     If  a  river  or  stream,  navigable  or  not  navigable,  carries  away,  by 

sudden  violence,  a  considerable  and  distinguishable  part  of  a  bank,  and  bears 

it  to  the  opposite  bank,  or  to  another  part  of  the  same  bank,  the  owner  of  the 

part  carried  away  may  reclaim  it  within  a  year  after  the  owner  of  the  land  to 

which  it  has  been  united  takes  possession  thereof. 

Avulsion — "Where  the  soil  is  suddenly  to  which  it  is  attached  to  claim  it  as  his  own: 
taken  from  one  man's  estate  and  carried  to  an-  Bract.  221;  2  Bla.  Com.  262;  Code  Napoleon, 
other's  by  the  immediate  and  manifest  power  art.  559;  Civ.  Code  La.,  art.  503.  Avulsion 
of  a  river  or  stream,  the  property  belongs  to  differs  from  alluvion  in  this,  that  in  the  latter 
the  first  owner;  but  an  acquiescence  on  his  case  the  change  of  the  soil  is  gradual  and  im- 
part will  in  time  entitle  the  owner  of  the  land  perceptible:  "  Commissioners'  note. 

1016.  Mi(7ids  in  navigable  streams. 

Sec.  101  G.  Islands  and  accumulations  of  land,  formed  in  the  beds  of  streams 
which  are  navigable,  belong  to  the  state,  if  there  is  no  title  or  prescription  to 
the  contraiy. 

Code  Napoleon,  art.  560;  Civil  Code  La.,  art.  504. 

1017.  In  unnavigable  streavift. 

Sec.  1017.     An  island,  or  an  accumulation  of  land,  formed  in  a  stream  which 

is  not  navigable,  belongs  to  the  owner  of  the  shore  on  that  side  where  the  island 

or  accumulation  is  formed;   or,  if  not  formed  on  one  side  only,  to  the  owners 

of  the  shore  on  the  two  sides,  divided  by  an  imaginary  line  drawn  through  the 

middle  of  the  river. 

This  and  the  following  sections  are  similar  5G0-563;  Civil  Code  La,,  arts.  506-510:  Com- 
to  those  found   iu  the  Code  Napoleon,  arts,     missioners'  observation. 

1018.  Idands  formed  by  division  of  stream. 

Sec.  1018.  If  a  stream,  navigable  or  not  navigable,  in  forming  itself  a  new 
arm,  divides  itself,  and  surrounds  land  belonging  to  the  owner  of  the  shore, 
and  thereby  forms  an  island,  this  land  belongs  to  such  owner. 

1019.  What  fixtures  tenant  may  remove.. 

Sec.  1019.     A  tenant  may  remove  from  the  demised  premises,  any  time  during 

the  continuance  of  his  term,  anything  afSxed  thereto  for  purposes  of  ti-ade, 

manufacture,  ornament,  or  domestic  use,  if  the  removal  can  be  effected  without 

injury  to  the  premises,  unless  the  thing  has,  by  the  manner  in  which  it  ia 

affixed,  become  an  integral  part  of  the  premises.     [New  section,  approved  March 

30,  1874;  Amendments  1873-4,  224;  took  effect  July  1,  1874.] 

Section    1019,  <as   originally  passed,  was  re-     ami  a  new  section  substituted  in  its  place  as 
pealed  by  actapproved  March  .SO,  1874;  Amend-     ab  ive. 
meuts  1873-4,  224;   took  effect  July  1.   1874;         FLsturea:  See  the  note  to  sec.  GOO,  mite. 

202 


Title  III,  Chap.  II.]      ACCESSION  TO  PERSONAL  PROPERTT.  §§  1025-1031 

CHAPTER  II. 

ACCESSION  TO    PERSONAL  PROPERTY. 

1025.  Accpssiori  by  uniting  several  thinrjs;. 

Sec.  1025.  When  things  belonging  to  different  owners  have  been  united  so 
as  to  form  a  single  thing,  and  cannot  be  separated  without  injury,  the  whole 
belongs  to  the  owner  of  the  thing  which  forms  the  principal  part;  who  must, 
however,  reimburse  the  value  of  the  residue  to  the  other  owner,  or  surrender  the 
whole  to  him. 

Accession. — In  anoteto  Pidc'ifi^rv.  Parjp,  51         The  codo  commissioners  state  tliat  "the  pro- 
Am.  Dec.  aSJ,  r)84,  will  bo  fouml  a  discii-ssionof     visions  of  this  chapter,  except  section  10.'>1,  are 
the  various  (questions  suLrgestecl  l)y  the  sections     siiuilar  to  those  of  the  Cole  Napoleon  and  the 
of  this  chapter,  or  references  to  such  discus-     code  of  Louisiaua." 
sious:  See  also  note  to  Bi-tts  v.  Lee,  5  Id.  3i>8. 

1026.  Principal  part,  what. 

Sec.  102G.  That  part  is  to  be  deemed  the  principal  to  whicli  the  other  liaa 
been  united  only  for  the  use,  ornament,  or  completion  of  the  former,  unless  the 
latter  is  the  more  valuable,  and  has  been  united  without  the  knowledge  of  its 
owner,  who  may,  in  the  latter  case,  require  it  to  be  separated  and  returned  to 
him,  although  some  injury  should  result  to  the  thing  to  which  it  has  been 
united. 

1027.  Same. 

Sec.  1027.  If  neither  part  can  be  considered  the  principal,  within  the  rule 
prescribed  by  the  last  section,  the  more  valuable,  or,  if  the  values  are  nearly 
equal,  the  more  considerable  in  bulk,  is  to  be  deemed  the  principal  part. 

1028.  Uniting  materiah  and  workinanf^hip. 

Sec.  1028.  If  one  makes  a  thing  from  materials  belonging  to  another,  the 
latter  may  claim  the  thing  on  reimbursing  the  value  of  the  workmanship,  unless 
the  value  of  the  workmanship  exceeds  the  value  of  the  materials,  in  which  case 
the  thing  belongs  to  the  maker,  on  reimbursing  the  value  of  the  materials. 

1029.  Inseparable  materials. 

Sec.  1029.  Where  one  has  made  use  of  materials  which  in  part  belong  to  him 
and  in  part  to  another,  in  order  to  form  a  thing  of  a  new  description,  without 
having  destroyed  any  of  the  materials,  but  in  such  a  way  that  they  cannot  be 
separated  without  inconvenience,  the  thing  formed  is  common  to  both  proprie- 
tors; in  proportion,  as  respects  the  one,  of  the  materials  belonging  to  him,  and 
as  respects  the  other,  of  the  materials  belonging  to  him  and  the  price  of  his 
workmanship. 

1030.  Hater iah  nf  several  oivners. 

Sec.  1030.  When  a  thing  has  heen  formed  by  the  admixture  of  several 
materials  of  different  owners,  and  neither  can  be  considered  the  principal  sub- 
stance, an  owner  without  whose  consent  the  admixture  was  made  may  requii-e  a 
separation,  if  the  materials  can  be  separated  without  inconvenience.  If  they 
cannot  bo  thus  separated,  the  owners  acquire  the  thing  in  common,  in  propor- 
tion to  the  quantity,  quality,  and  value  of  their  materials;  but  if  the  materials 
of  one  were  far  superior  to  those  of  the  others,  both  in  quantity  and  value,  he 
may  claim  the  thing  on  reimbursing  to  the  others  the  value  of  their  materials. 

1031.  Willful  tref<passers. 

Sec.  1031.  The  foregoing  sections  of  this  article  are  not  applicable  to  cases 
in  which  one  willfully  uses  the  materials  of  another  without  his  consent;  but 

20:J 


§§  1032-1040  ACQUISITION  0L-'  PROPERTY.  [Div.  II,  Part  IV, 

in  such  cases,  the  product  beloug's  to  the  owner"  of  the  material,  if  its  identity 
can  he  traced. 

■Willlul  and  tortious  confusion:  See  note  to  Pulci/cr  v.  Page,  54  Am.  Dec.  582,  591. 

1032.  Owiwr  mnij.  elect  belweea  (lie  Ihlnfj  ami  its  value. 

Sec.  1032.  In  all  cases  where  one  whose  material  has  been  used  without  hig 
knowledj^e,  in  order  to  form  a  product  of  a  different  description,  can  claim  an 
interest  in  su(;h  product,  he  has  an  (^)ption  to  demand  either  restitution  of  his 
material  in  kind,  in  the  same  quantity,  wei^'ht,  measure,  and  quality,  or  the 
value  thereof;  or  where  he  is  entitled  to  the  product,  the  value  thereof  in  place 
of  the  product. 

1033.  Wrovg-doer  liable  in  damages. 

Sec.  1033.  One  who  wrongfully  employs  materials  belonging  to  another  ia 
liable  to  him  in  damages,  as  well  as  under  the  foregoing  provisions  of  this 
chapter. 

TITLE   IV. 

TRANSFER. 

Chaptee  I.  Transfer  in  General -.^^«^^^, -,,•,,»„.  1039 

II.  Transfer  of  Real  Propkrty 1091 

III.  Transfer  of  Personal  Pkoperty 1135 

IV.  Recording  Transfers  of  Real  Property 1158 

V.  Uxla\vful  Transfers 1227 

"The  obligations  of  the  parties  to  a  transfer  and  on  hiring.  Transfers  in  tmst  for  the  ben- 
for  consideration,  or  to  a  contract  of  hiring,  are  cfit  of  creditors  are  regulated  hy  the  |iart  on 
regulated  by  the  titlea  on  sales,  on  exchange,     debtor  and  creditor:"  Conunissiouera' note. 

CHAPTER  I. 

TRANSFERS  IN  GENERAL. 

Akticxe    I.  Definition  OF  Transfer ...-,. ^ .....^...  1039 

II.  What  may  be  TRANSFEEREii 1044 

III,  Mode  of  Transfer 1052 

IV.  Intekpretation  of  Grants 1066 

V.  Effect  of  Transfer 10S3 

ARTICLE  I. 

DEFINITION    OP   TRANSFER. 

1039.  Transfer,  what. 

Sec.  1039.     Transfer  is  an  act  of  the  parties,  or  of  the  law,  by  which  the  title 

to  property'  is  conveyed  from  one  living  person  to  another. 

"Bouvier  detims  *  transfer'  to  be  'the  act  rights  whicli  ho  has  in  it  to  the  latter:' "  Com- 
by  wliicli  the  owner  of  a  thing  delivers  it  to  missioners'  note;  section  cited  generally: 
another  person,  with  the  intent  of  passing  the     Mahury  v.  Raiz,  5S  Cal.  11,  15. 

1040.  Voluidanj  transfer. 

Sec.  1040.     A  voluntary  transfer  is  an  executed  contract,  subject  to  all  rules 

of   law  concerning   contracts   in  general;  except  that  a  consideration  is  not 

necessary  to  its  validity. 

"Rnles  of  law:  Fletchi'r  v.  PpcIc,  6  Cranch,  1S23,  bnt  was  not  enacted;  yet  it  would  seem 

136;  Peo/iff  v.  Plaff,  17  Johns.  19.');   Varir/cv.  tiiat,  independent  of  statutory  enactment,  it  ia 

Brit/t/n,  21  Wuiu].  i^>^l^•,    fail  PennsfildPf  V.  /]  ill,  the  law:  Jhinn  v.   IVintlinj/i,  \   .Johns.  C'h.  329; 

19  N.  Y.  100.     Till"  last  clause  ia  section   I  OH  //V)/wv.5/?ia///)/ce, 2Barn.  <&  Ald.o,")!  ;./ar7.-.<0M  v. 

was  proposed  for  enactment  in  regan I  to  grants  Garninj,  16  Johns.  189:"  Coniinissiouers' note. 

of  real  property  by  the  New  York  revisers  in  Gif!3:  See  sees.  1146,  ^jos<,  et  seq. 

204 


Title  IV,  Chap.  I.]  TRANSFERS  IN  GENERAL.  §§  ]04.t-10>4 

ARTICLE  II. 

WH-^T    MAY    BE   TKAXSFERKED. 

1044.  What  may  be  tranaf erred. 

Sec.  1044.  Property  of  any  kind  may  be  transferred,  except  as  otlierwisa 
provided  by  this  article. 

1045.  Possibility. 

Sec.  1045.  A  mere  possibility,  not  coupled  -with  an  interest,  cannot  be  trans- 
ferred. 

1046.  Itirjht  of  re-entry  can  he  transferred. 

Sec.  104G.  A  right  of  re-entry,  or  of  repossession  for  breach  of  condition 
subsequent,  can  be  transferred. 

"Tliis  reverses  the  rule  in  sec.  402  N.  Y.  C.  ing  section,  which  is  based  on  our  statute:" 
C.     It  haniiouizes  analogically  with  tlie  follow-     Note  in  the  coinniissiouers'  report. 

1047.  Owner  ousted  of  2)OSsession  may  transfer. 

Sec.  1047.  Any  person  claiming  title  to  real  property  in  the  adverse  posses- 
sion of  another  may  transfer  it  with  the  same  effect  as  if  in  actual  possession. 

"At  common  law,  the  conveyance  of  land  in  the  grantor  has  a  riglitfiil  claim,  sliould  not  be 
the  adverse  possession  of  another  was  void,  and  valid:"  Commissioners' note.  For  an  applica- 
this  is  the  law  at  the  present  time  in  several  of  tion  of  the  principle  here  indicated,  see  Lnras  v. 
the  states;  but  the  common-law  rule  never  pre-  P/co,  S.l  Cal.  12G,  where  a  pronussory  note  given 
vailed  in  this  state,  having  been  abrogated  by  for  an  outstandiDg  title  to  land  in  the  adverse 
statute.  Tiie  reason  of  tiie  ancient  common-  possession  of  another  was  iield  valid,  the  trans- 
law  doctrine  does  not  exist  here.  When  livery  fer  being  permitted  by  our  code. 
of  seisin  was  necessary,  as  it  could  only  be  ^lortgage  of  land  in  the  adverse  poss-3Ssion 
made  by  the  {>erson  in  possession,  it  followed,  of  anotlier  is  valid:  Sec.  202\.  This  section 
as  matter  of  course,  that  a  conveyance  l>y  a  foUows  as  a  logical  sequence  from  section '29-47, 
person  out  of  possession  was  void.  In  tliis  which  permits  a  mortgage  of  any  interest  capa- 
state  the  execution  and  delivery  of  a  deed  with-  ble  of  transfer,  and  from  section  1047,  which 
out  livery  of  seisin  or  entry  consummates  a  validates  the  transfer  of  laud  in  the  adverse 
conveyance,  and  therefore  there  is  no  goo  I  possession  of  another, 
reason  why  the  conveyance  of  land,  to  which 

ARTICLE  III. 

MODE    OF   TRANSFER, 

1052.  Wlicn  oral. 

Sec.  1052.  A  transfer  may  be  made  without  writing,  in  every  case  in  which  a 
writing  is  not  expressly  required  by  statute. 

What  contracts  must  be  in  v^rriting:  See  Fraudulent  inatnunenta  and  treinsfers: 
sec.  1  ()24,  /(os/.  See  sees.  3439  et  seq.,  2^oist. 

Unlawful  transfers:  See  sees.  1227  et  aeq. 

1053.  Transfer  grant  defined. 

Sec.  1013.  A  transfer  in  writing  is  called  a  grant,  or  conveyance,  or  bill  of 
sale.  The  term  "grant,"  in  this  and  the  next  two  articles,  includes  all  these 
instruments,  unless  it  is  specially  applied  to  real  property.  [Anii^ndment,  a/j- 
proved  March,  30,  1874;  Amendments  1873-4,  225;  took  effect  July  1,  1874.] 

Covenants  applied  brom  a  ♦*  grant "  of  it  being  extended  by  the  original  section  to 
realty:  See  sec.  1 1 13,  post.  every  instrument  in  writing  l)y  which  property 

The  code  examiners,  whose  amendment  is  is  transferred,  whenever  the  word  was  used  in 
hereadopted,  restricted  the  meaning  of  "grant,"    this  title. 

1054.  Delivery  necessary. 

Sec,  1054.     A  grant  takes  efifect,  so  as  to  vest  the  interest  intended  to  be 

transferred,  only  upon  its  delivery  by  the  grantor. 

Delivery  is  essential  to  the  vesting  of  the  v.  Bunch,  .SO  Id.  208;  Hihhprd  v.  f^mifh,  3  West 

grantor's  interest  in  the  grantee;  and  it  is  well  Coast  Rep.  44G;  Baiikof  lleaUi^bnrijw  Bailhace, 

settled  that  a  deed  takes  effect  only  from  the  Id.  140;  tiyam  v.  S/wiicer,  101  111.  421);  Hanky 

time  of  its  delivery:  Dytton  v.  Brad-i/iaw,  23  v.   Wdson,  77  N.  (J.  21G;  Calhoun  v.  Einiijrani 

Cal.  528;  Barr  v.  Schroeder,  32  Id.  CIO;  Mich  Co.,  93  U.  S.  124. 

205 


IS  1055-1057 


ACQUISITION  OF  PROPERTY. 


[Div.  II,  paht  rv. 


Delivery  is  a  question  of  fact  and  depends 
more  upon  the  intention  of  the  parties  tli.ui 
iipoii  the  mode  of  fulfillins^  the  intention:  //  'S- 
iiiiffH  V.  VatKjhii,  5  C'al.  315;  and  see  sec.  1059, 
infra;  Diiei-  v.  Jaraea,  42  Md.  492;  WeUhoni  v. 
Weaver,  17  G;i.  2G7;  Cannon  v.  Cannon,  26  N. 
J.  Eq.  319;  Den  v.  Ftrlee,  21  N.  J.  L.  285. 
The  elements  of  a  delivery  are  that  the  wiit- 
ing  must  be  meant  hy  the  maker  to  take  imme- 
diate effect,  and  be  pn-sumably,  or  in  fact, 
accepted  by  the  otlier  party:  Harris^  v.  Harris, 
69  Cal.  020.  It  is  evidence  of  the  delivery  of 
the  deed  that  it  is  in  tlie  possession  of  the 
grantee:  Branson  v.  Cariithers,  49  Id.  .374;  IVr- 
liol  V.  Vcrnol,  G3  N.  Y.  45;  Whart.  on  Ev., 
8ecs.  1313,  1314;  and  found  on  her  death  among 
her  paper.s:  Kidderv.  Stevetis,  GOCal.  414;  or  that 
it  was  recorded  by  the  grantor  or  by  some  one 
claiming  under  him:  Burr  v.  Schi'oedfr,  .32  Id. 
610;  Beiidey  v.  Atwil/,  J2Id.  231;  Hollldaif  v. 
White,  33  Tex.  4G0;  Union  Ins.  Co  v.  Camp'^-l/, 
95  111.  267;  Cecil  v.  Bearer,  28  Iowa,  241;  2 
Whart.  on  Cont. ,  sec.  677;  and  tiiis  though 
the  deed  be  retained  by  the  grantor:  Kerr  v. 
Birnie,  25  Ark.  225;  Hohinmn  v.  Gonhl,  26 
Iowa,  89;  Cec'd  v.  Beaver,  28  Id.  241;  Milrh'U 
V.  Ryan,  3  Ohio  St.  377;  Masterson  v.  Cheek, 
23  111.  72.    A  deed  from  father  to  son,  acknowi- 

1055.   Date. 

Sec.  1055. 

date. 

Presumption  of  delivery:  See  sec.  1054. 
Applicable  to  bill  of  sale:  McFadden  v. 
Mitchell,  61  Cal.  148. 


edged  and  recorded  at  the  request  of  the  gran- 
tor, and  produced  on  the  trial  by  the  grantee, 
is  admissible  without  other  proof  of  delivery: 
llV'/f/ V. //erm'(7i,  59Cal.  507.  The  term  "haa 
executed  unto,"  applied  to  instruments  in  writ- 
ing imports  both  making  and  delivery:  Baglcy 
V.  Mickle,  9  Id.  4.30;  and  acknowledgment  of 
married  woman's  deed;  Jo-^e/zh  v.  Diiuijherty, 
60  Id.  358.  It  imports  every  act  requisite  to 
make  the  instrument  operative  and  effective: 
Id. 

Delivery  cannot  be  presumed  from  the  sign- 
ing anrl  acknowledging  a  deed:  Boyd  v.  Slay- 
bark;  63  Cal.  493. 

Delivery  is  not  complete  until  the  grantor 
has  so  dealt  with  the  instrument  delivered  as 
to  lose  all  control  over  it.  Whetlier  lie  lias  so 
dealt  with  it  depends  upon  tiie  intent  to  be 
deduced  from  all  the  surrounding  circum- 
stances: Hlbberd  v.  Smith,  3  West  Coast  Rep. 
446.  Delivery  to  a  third  person  not  authorized 
by  the  grantee  to  receive  it  will  not  defeat 
attaciiing  creditors  of  the  grantor:  Id. 

Assent  of  grantee  is  necessary  to  delivery: 
Ilihherd  v.  Smif/i,  snpni. 

Constructive  delivery:  See  sec.  1059,  infra. 

Contract  in  w^riting  takes  effect  only 
from  delivery:  See  post,  sec.  1626. 


A  grant  duly  executed  is  presumed  to  have  been  delivered  at  its 


Presumption  of  delivery  at  date  of  grant 
is  not  conclusive:  TreadwtU  v.  Reynolds,  4n 
Cal.  171. 


1056.    Delivery  to  grantee  is  necessarily  absolute. 

Sec.  105G.  A  grant  cannot  be  delivered  to  the  grantee  conditionally.  Deliv- 
ery to  him,  or  to  bis  agent  as  such,  is  necessarily  absolute,  and  the  instrument 
takes  effect  thereupon,  discharged  of  any  condition  on  which  the  delivery  was 
made. 


ing  their  life-time.  Chandler  v.  Chandler,  55 
Cal.  267. 


See,  for  the  construction  of  a  deed  executed 
to  the  grantee  upon  the  condition  that  the 
grantors  should  retain  the  use  and  control  dur- 

1057.   Delivery  in  escrow. 

Sec.  1057,  A  grant  may  be  deposited  by  the  grantor  with  a  third  person,  to 
be  delivered  on  performance  of  a  condition,  and  on  delivery  by  the  depositary, 
it  will  take  effect.  While  in  the  possession  of  the  third  person,  and  subject  to 
condition,  it  is  called  an  escrow. 


A  deed  delivered  a3  an  escrow  takes 
effect  from  the  time  of  the  original  delivery, 
upon  the  happening  of  the  condition:  Wheel- 
wright V.  Wh-elwnijhf,,  3  Am.  Dec.  6G;  /I.Uc'i 
V.  Hatch,  6  Id.  67;  Black  v.  /foyt,  33  Ohio  St. 
203.  It  is  essential  to  an  escrow  that  tiie  deed 
be  no  Ioniser  under  the  control  of  the  grantor: 
Fitch  V.  Bnnch,  30  Cal.  208.  If  the  condition 
of  delivery  over  is  the  order,  of  the  grantor, 
the  deed  is  deemed  in  law  to  ba  still  in  his  pos- 
session: Id.  The  grantee  acquires  no  title  to 
the  land  until  the  conditions  are  complied 
yith:  Dyson  v.  Bradshaw,  23  Id.  528.  Hand- 
ing a  deed  to  one  of  the  directors  of  a  bank, 
the  grantee,  with  directions  not  to  <leliver  the 
Banifc  unlil  certain  matters  in  dispute  are  set- 
tled, and  the  director  instructed  to  make  such 
delivery,  is  not  a  delivery  to  the  bank,  nor  can 
delivery   be   made  until  the  iustraotioa"?  are 


given:  Bank  of  Ilealdahurg  v.  Bailhace,  3  West 
Coast  Rep.  140.  Where  the  contingency  is  the 
death  of  the  grantor,  the  following  distinction 
is  to  be  noted:  whether  or  not  the  grantor  re- 
served a  right  to  recall  the  instrument.  This 
distinction  leads  to  the  two  following  princi- 
ples: 1.  If  the  deed  is  <lelivered  to  a  third 
person  without  any  reservation  of  right  to  re- 
call the  deed  before  the  grantor's  death,  but 
with  the  absolute  and  find  determination  that 
it  shall  take  effect  when  the  contingency  of  Ida 
death  ha[)pens,  it  will  become  operative  upon 
its  ilelivery,  after  hi.s  «leath,  to  the  grantee; 
and  such  delivery  will  relate  back  to  til's  prior 
<lelivery  for  the  puipose  of  pas.sing  the 
grantor's  title;  Wheelwriij'd  v.  U'/icelwri(/ht,  3 
Am.  Dec.  66:  J/atrh  v.  '//  I'ch,  6  Id.  6/';  Fos- 
ter V.  Mansfield,  3  Met.  4\*;  Mathi-r  v.  Corliss, 
103  Mass.  568;  Halhu'.vay  v.  I'ayne,  34  N.  V. 

206 


Title  IV,  Chap.  I.] 


TRANSFERS  IN  GENERAL. 


§§  105S-1067 


92;  Stephens  v.  Bhinehart,  72  Pa.  St.  4.']4; 
Stove  V.  Durall,  77  111.  475;  Wallace  v.  llarr'iK, 
32  Mich.  3S0;  Thatcher  v.  St.  Andrews'  Church, 
37  Id .  264.  2.  Oil  the  other  hainl,  where  tliere  is 
Bucli  a  reservation  of  the  grantor's  right  to  re- 
call the  deed  before  his  death,  the  delivery  in 
escrow  is  not  effectual  to  pass  the  title,  even 
though  he  die  without  recalling  it:  Cook  v. 
Brown,   34  N.   H.    460;    Ptatsmcm   v.   Baker, 


3D  Wis.  644;  Bailey  v.  Bailey,  7  Jones  L.  44; 
Brown  v.  Brown,  66  Me.  316.  For  further  in- 
vestigation of  questions  connected  with  this 
suhject,  see  the  note  to  Jones  v.  Jones,  16  Am. 
Dec.  .39. 

Promissory  notes  delivered  in  escro^w 
become  absolute  upon  the  happening  of  the 
condition  after  the  maker's  death:  Bostwick  v. 
McEvoij,  C2  Cal.  406. 


1058.   Surrendering  or  canceling  grant  does  not  reconvey. 

Sec.  1058.     Redelivering  a  grant  of  real  property  to  the  grantor,  or  cancel- 
ing it,  does  not  operate  to  retransfer  the  title. 

Mass.  424;  Lawrence  v.  Lawrence,  24  Mo.  269; 
Wihon  V.  mil,  13  N.  J.  L.  143.  The  title  can- 
not be  restored  to  the  grantor  other  than  by  a 
reconveyance  in  writing:  Cranmer  v.  Porter,  41 
Cal.  402. 

Requisites  of  transfer  of  estates  In  real 
property:  See  sec.  1091,  post. 


Redelivery  or  destruction  of  a  deed,  by 

mutual  consent  or  otherwise,  does  not  operate 
to  revest  the  estate  in  the  grantor:  Kcaminrj  v. 
Kilian,  18  Cal.  401;  Bowman  v.  Cudworlh,  Ml 
Id.  148;  Kilhi  v.  Wilson,  33  Id.  091;  Lowton  v. 
Gordon,  34  Id.  3li;  Cranmer  \.  Porter,  41  Id. 
462;  Jordan  v.  Jordan,  14  Ga.  143;  Fawcetts 
y.  Kinney,  33  Ala.  264;  Regan  v.  llowe,  121 

1059.  Confilructive  delivery. 

Sec.  1059.  Though  a  grant  be  not  actually  delivered  into  the  possession  of 
the  grantee,  it  is  yet  to  be  deemed  constructively  delivered  in  the  following 
cases: 

1.  Where  the  instrument  is,  by  the  agreement  of  the  parties  at  the  time  of 
execution,  understood  to  be  delivered,  and  under  such  circumstances  that 
the  grantee  is  entitled  to  immediate  delivery;  or, 

2.  Whei-e  it  is  delivered  to  a  stranger  for  the  benefit  of  the  grantee,  and  his 
assent  is  shown,  or  may  be  presumed. 

The  delivery  of  a  deed  is  a  question  of    231;  Barr  v.  Schroeder,  32  Id.  010;  Bagley  v. 
faot  to  l>e  (leteiniiued  l)y  the  jury:   //axilii'/s  v.     McMickle,  9  ItL  430;  sec.  1054, 
Vaughn,  5  Cal.  513;  Bensley  v.  Atwill,  12  Id. 

1060.  Grant  as  a  gratuity. 

Section   lOGO  was  repealed  by  act  approved  gratuity  takes  effect  upon  its  execntion,  even 

March  ."0,  1S74;  Amendments  1873-4,  225;  took  thougli  the  grantor  retain  [jwasesaion,  xuilesa  a 

effect  July  1,  1874.  contrary  intention  appears." 

It  was  as  follows:  "A  grant  made  as  a  mere 


ARTICLE  IV. 

INTERPRETATION   OP   GRANTS. 

1063.    Grants,  how  interpreted. 

Sec.  lOGG.     Grants  are  to  be  interpreted  in  like  manner  with  contracts  in 

general,  except  so  far  as  is  otherwise  provided  in  this  article. 

Midford  V.  Le  Franc,  26  Id.  88.  The  words 
"northerly,"  "southerly,"  "easterlj',"  "west- 
erly'," mean  due  courses,  unless  controlled  by 
other  words,  or  by  natural  objects:  Bosworth 
v.  Daiitlew,  25  Id.  296;  Fratt  v.  Woodward,  32 
Id.  219;  Colton  v.  Seavey,  22  Id.  496.  The 
grantor  may  by  a  clause  inserted  in  the  instru- 


Interpretation  of  grants. — The  first  step 
in  the  construction  of  a  deed  is  to  ascertain  tlie 
nndeistandiiig  and  intention  of  the  parties  at 
thf!  time  of  contracting:  Brawtan  v.  Airsick,  10 
Cal.  95;  sec.  1G36,  post.  To  arrive  at  this  iu- 
tenti'in,  the  fiUiation  of  the  parties  and  the 
Bubjcct-matter  should  be  considered,  and  the 
whole  deed  slioull  be  taken  together:  Walsh  v. 
Ilil',  33  Cal.  482;  Brannan  v.  Mesick,  supra; 
eec.  1641,  ]>o^t ;  Pico  v.  Coleman,  47  Cal.  05. 
If  tlie  meaning  of  the  language  is  doubtful, 
the  court  will  consider  the  surrounding  circum- 
etanc^cs,  and  call  to  its  aid  the  acts  of  the  par- 
ties done  under  it  as  a  clew  to  their  inteutiou: 


nient  give  to  the  words  he  used  a  different 
meaning  from  that  which  they  generally  bear: 
Morrison  v.  Wilson,  30  Id.  344.  So,  wliere  a 
grantor  uses  technical  words  otherwise  than  in 
their  technical  signitication:  C  P.  R.  R.  Co.  v. 
Beat,  47  Id.  151. 


1067.    Limitations,  how  controlled. 

Sec  10G7.     A  clear  and  distinct  limitation  in  a  grant  is  not  controlled  by 
other  words  less  clear  and  distinct. 

207 


§§  1068-1084  AOgUISITION  OF  PROPERTY.  [Drv.  II,  Part  IV, 

1068.  Rfcilnls,  when  resorted  to. 

Sec.  10G8.     If  the  operative  words  of  a  grant  are  doubtful,  recourse  may  be 
had  to  its  recital  to  assist  the  constructions. 

1069.  Interpretation  against  grantor. 

Sec.  lOGD.     A  grant  is  to  be  interpreted  in  favor  of  the  grantee,  except  that 

a  reservation  in  any  grant,  and  every  grant  by  a  public  officer  or  body,  as  such, 

to  a  private  party,  ifv  to  be  interpreted  in  favor  of  the  grantor. 

A  deed  is  to  bs  interpreted  in  favor  of  a  public  officer  or  body  to  an  indlvilual,  it  ia 

the  gran'c33,  as  a  general  rule:  Doit'je  v.  IVal-  presumed  ia  favor  of  tlie  grantor  t'.iut  tlie  am- 

tet/,  '22  C.il.  224;    Mider  v.  Bj:;jk,  2.5  Id.  173;  biguity  was  occasioned  by  the  grantee:  J  ick>^on 

Piper  V.  True,  33  Id.  63G;  Salmon  v.  WiUon,  41  v.  AVecM,  ;]  Id.  293.     See,  for  tlie  construction 

Id.  593;  llaijer  v.  Sperl,  32  Id.  579;  Wilcocsoii  in  favor  of  tlie  grantee  of  a  douljtfiil  clause  in  a 

V.  S])raijue,  hi  Id.  G40;  but  in  grants  made  by  reservation  in  a  deed,  Muller  v.  Uojjs,  supra. 

1070.  Irreconcilable  provisions. 

Sec  1070.     If  several  parts  of  a  grant  are  absolutely  irreconcilable,  the 

former  part  prevails. 

The  first  of  repugnant  clauses  in  a  grant  Chaae  v.  Bradley,  20  Me.  53S;   Jarhann  v.  7r«. 

prevails:    J/areiin  v.  Dale,  18  C d.  .339;   ,/ewftt  laid,  3  Wend.  9Jj  Batterjield  v.  Cooper,  6  Cow. 

v.  Jewell,  IG  Barb.   157;   but  otherwise  where  481. 
the  second  is  only  a  qualification  of  the  tirst: 

1071.  Meaning  of"  heirs"  and  "  issue"  in  certain  remainders. 

Sec.  1071.  Where  a  future  interest  is  limited  by  a  grant  to  tate  effect  on  the 
death  of  any  person  without  heirs,  or  heirs  of  his  body,  or  without  issue,  or  in 
equivalent  words,  such  words  must  be  taken  to  mean  successors,  or  issue  living 
at  the  death  of  the  person  named  as  ancestor. 

1072.  Words  of  inheritance  unnecessary. 

Sec.  1072.  Words  of  inheritance  or  succession  are  not  requisite  to  transfer  a 
fee  in  real  property. 

■Word3  of  inheritance  unnecessciry:  Stats,  "What  estate  a  fee:  See  sec.  762,  ante, 

1855,  171,  sec.  3.  A  deed  which  in  its  granting   part   simply 

A  fee-simple  is  presumed  to  be  intended  grants,  bargains,  .ind  sells  the  land,  without 

to  be   conveyed,  unless   the   contrary  appears  any  words  of  inheritance,  conveys  a  fcc-siiuplc: 

from  the  grant:  See  sec.  MOo,  po^t.  ilonlgomery  v.  Sturdlvaut,  41   Cal.  290.     lint 

Devise  of  i^o. — Word  "heirs"  not  neces-  the  title  thus  conveyed  may  be  limited  in  tlia 

aary:  Sec.  1329,  post.  habendum  clause  to  an  estate  for  life:  Id. 

ARTICLE  V. 

EFFECT  OF  TRANSFER. 

1083.  What  title  passes. 

Sec.  1083  A  transfer  vests  in  the  transferee  all  the  actual  title  to  the  thing 
transferred  which  the  transferrer  then  has,  unless  a  different  intention  is 
expressed  or  is  necessarily  implied. 

1084.  Incidents. 

Sec  1084.     The  transfer  of  a  thing  transfer."?  also  all  its  incidents,  unless 

expressly  excepted;  but  the  transfer  of  an  incident  to  a  thing  does  not  transfer 

the  thing  itself. 

Everything  essential  to  ihe  benofloi  l  4  Paige,  77;  Langdon  v.  Duel,  9  Wend.  80; 

enjoyment  cf  tho  propsrty,  in  the  aljseuce  Jackson    v.    Blodgett,   5  Cow.    232.     r>ut   tho 

of  language  indicating  a  different  iutention  ou  transfer  of  the  incident  does  not  transfer  the 

the  part  of  t!ie  grantor,  passes  to  the  grantee:  thing  itself:  Kelloyg  v.  Smith,  20   N.   Y.  18; 

Spark-H  v.  JJcs,  15  Cal.  18G;  BaUle  v.  Coil,  23  BaUle  v.  Coil,  Id.  404. 

N.   Y.  404;    Lam/mian   v.   Nilk^,  21   Id.  .')03;  See  sees.  1 104,  3340,  po8«. 
JJuttemeier  v.  Albro.  18  Id.  48;  Leroy  v.  Plait, 

203 


Title  IV,  Chap,  n.]  TRANSFER  OF  REAL  PROPERTY.  §§  1085-10^3 

1085.    Grant  may  inure  to  benefit  of  stranger. 

Seo.  1085.  A  present  interest,  and  the  benefit  of  a  condition  or  covenant 
respecting  pi-operty,  may  be  taken  by  any  natural  person  under  a  grant, 
ftlthough  not  named  a  party  thereto. 

"This  was  not  so  at  common  law:  Honibeck    stated  in  section  10S5:   8  &  9  Vict.,  c.   105, 
V.  Wedbrook,  i)  Johns.  73;  CraUj  v.   Wells,  11     sec.  5:"  Commissioners' note. 
N.  Y.  315.     But  the  law  in  England  is  now  as 


CHAPTER  II 

TRANSFER  OF  REAL  PROPERTY. 

Abticle  I.    Mode  of  Transfer 1091 

U.    Effect  of  Tka^^sfeb. 1104 

ARTICLE  I. 

MODE    OF   TRANSFER. 

1C91.    Iteqjiisiten  for  transfer  of  certain  estates. 

Sec.  1091.  An  estate  in  real  property,  other  than  an  estate  at  "will  or  for  a 
term  not  exceeding  one  year,  can  be  transferred  only  by  operation  of  law,  or  by 
an  instrument  in  writing,  subscribed  by  the  party  disposing  of  the  same,  or  by 
his  agent  thereunto  authorized  by  writing. 

Requisites  of  transfer  of  real  property:  People  v.  White,  G  Cal.  75;  so  also  is  a  verbal 
See  corresponding  section  in  Code  of  Civil  I'ro-  agreement  by  tlie  vendee  to  reconvey  if  he  fails 
cedure,  sec.  1971.  In  their  report  of  tliis  code,  to  j)ay  the  considenition  money  on  ilemand; 
the  commissioners  make  tiie  following  explana-  Gallai/her  v.  AJarx,  50  Id.  23.  A  release  of  aa 
tion  of  the  use  of  the  word  "grant:"  "A  trans-  equitable  estate  in  land  can  only  Ikj  proved  by 
fer  of  real  property  is  called  a  grant.  At  first  it  a  dee<l  or  conveyance  in  writing  subserilicd  by 
seemed  of  <toubtful  propriety  to  change  from  the  ])arty  granting  tlie  same,  or  by  his  lawful 
•deed'  to  'grant.'  Either  word  is  legally  agent  thereunto  authorized  in  writing:  lloi-nv. 
fiuliicient.  llie  car  is  more  accustomed  to  Simmons,  lid.  119;  Tolder  \.  Folsom^U.  'IQHi 
'deed'  or  'conveyance,'  though  'grant'  is  Vidcaii  v.  Griffin,  *21  Id.  389;  MrLnri'n  v. 
familiar  to  commondaw  lawyers,  'i  he  New  Jlnlc/iinson,  22  Id.  187;  Ddyles  v.  Baxter,  IiL 
York  revisers  adopt  'grant.'  Considering  its  575;  Millard  v.  Ilatlian;a>j,  27  Id.  119.  The 
derivatives,  it  is  great  economy  in  time  and  rules  that  would  vitiate  a  conveyance  made  by 
Bpace— 'grantor' and  'grantee' — which  can  be  an  individual  apply  etjually  to  corporations: 
60  often  used  in  r.  conveyance  in  place  of  '  party  Smith  v.  Morse,  2  Id.  524.  The  statute  rcquir- 
of  the  first  jjart  'and  '  party  of  the  second  part  *  ing  an  instrument  in  writing  to  create  an  inter* 
(see  form  of  grant).  These  we  think  are  sufii-  est  in  land  does  not  apply  to  the  taking  up  ol 
cient  reasons  for  the  change  from  'tieed'  to  mining  claims.  A  more  verbal  authority  t» 
'grant.'  Besides,  'deed'  more  especially  im-  one  man  to  take  up  a  claim  for  another  is  suf- 
plies  a  seal,  wiiieh  has  been  abolished."  ficient:    Gore   v.    Mc/Jraifer,    18   Id.    582.     A 

A  sale  of  land  at  auction  where  no  note  or     written  but  unsealed  transfer  is  good  as  a  con- 
memorandum  is  made  by  the  auctioneer,  and     tract  to  convey:  On-en  v.  Frink,  24  Id.  171. 
no  writing  exists  between  the  parties,  is  void:         See  further  sec.  lG2i,  subd.  5,  and  note. 

1092.  Form  of  grant. 

Seo.  1092.  A  grant  of  an  estate  in  real  property  may  bo  made  in  substance 
as  follows: 

"  I,  A.  B.,  grant  to  C.  D.  all  that  real  property  situated  in  (insert  name  of 
county)  county,  state  of  California,  bounded  (or  described)  as  follows  (here 
insert  description,  or  if  the  land  sought  to  be  conveyed  has  a  descriptive  name, 
it  may  be  described  by  the  name,  as  for  instance,  '  The  Norris  Ranch '). 

"  Witness  my  hand  this  (insert  day)  day  of  (insert  mouth),  18 — . 

A.,  xj. 

Form  of  grant. — "It  will  be  observed  that  writing  imports  a  consideration:  Seo  subd.  .^9 

the  form  in  section  1092  omits  the  recital  of  a  of  see.  19G3,  Code  Civ.  I'roc.:"  Comini.isioncrs' 

consideration.    Such  a  recital  is,  under  the  code,  note.     That  a  written  instrument  is  presump- 

unnecessary  in  any  kind  of  a  contract.      The  tive  of  a  consideration,  see  seo.  1G14,  2>ost. 

1093.  Grant  by  married  women,  how  acknowledged. 

Sec  1093.     No  estate  in  the  real  property  of  a  married  woman  passes  by  any 
grant  purporting  to  be  executed  or  acknowledged  by  her,  unless  the  grant  or 
Civ.  Code— 14  209 


g§  1094-1104  ACQUISITION  OF  PROPERTY.  [Dir.  II,  Part  IV, 

instrument  is  acknowledged  by  her  in  the  manner  prescribed  by^ections  eleven 
hundred  and  eighty-six  and  eleven  hundred  and  ninety-one. 

Conveyance  by  married  -women:   See  sees.  118G,  1187,  and  1191,  post,  and  note  to  sec. 

1187. 

1094.    Power  of  attorney  of  married  women,  how  acknowledged. 

Sec.  1094.  A  power  of  attorney  of  a  married  woman,  authorizing  the  execu- 
tion of  an  instrument  transferring  an  estate  in  her  separate  real  property,  has 
no  validity  for  that  purpose  until  acknowledged  by  her  in  the  manner  provided 
in  sections  eleven  hundred  and  eighty-six  and  eleven  hundred  and  ninety-one. 

Married  woman's  power  of  attorney. —  O.  ct  S.  M.  Co.,  siqyra.  The  husband  may  be 
Prior  to  the  act  of  April  3,  1863,  a  married  the  attorney  in  fact,  and  through  him  the  wife 
woman  was  incompetent  to  execute  a  power  of  may  make  a  valid  executory  contract  affecting 
attorney:  Dow  v.  Gonl  I  <L-  C.  G.  d- S.  M.  Co.,  her  separate  estate:  Racouillat  v.  Sansevain, 
31  Cal.  G29;  and  see  MoU  v.  Smith,  IG  Id.  533,  32  Id.  370.  A  joint  power  of  attorney  from 
and  Deiifzel  v.  Waldie,  30  11.  138.  But  tliat  the  husband  and  wife  is  effectual  to  authorize 
act  was  retroactive  in  its  effect,  validating  such  the  attoiney  in  fact  to  execute  a  lease  of  the 
powersof  attorney  theretofore  made  as  iiad  been  separate  estate  of  the  wife:  Douglas  v.  Fulda, 
joined  in  by  the  husband:  Dow  v.   Gould  d-  C.     50  Id.  77. 

11095.    Attorney  in  fact,  hoiv  mud  executefor  principal. 

Sec.  1095.     When  an  attorney  in  fact  executes  an  instrument  transferring  an 

.estate  in  real  property,  he  must  subscribe  the  name  of  his  principal  to  it,  and 

his  own  name  as  attorney  in  fact. 

A  deed  executed  by  an  attorney  in  fact  power  of  attoniey  authorizing  the  attorney  "to 

imnst  be  executed  in  the  principal's  name,  in  make  and  execute  conveyances,"  the  purchase 

»order  to  make  it  convey  his  property:  Flshrr  money  being  received  by  the  principal,  cannot 

v.  Salmon,  1  Cal.  413;  Ecliol'<  v.  Clwney.  23  Id.  be  assailed  for  the  want  of  authority  to  execute 

!I57;  Morruon  y.  Botom'ni,  29  Id.  337;  Love  y.  it:   Hunter  v.   WatKon,    12   Id.  303.     The  fact 

.{iierra  Nevada  etc.  Co.,  32  11.  (539,  where  it  is  that  the  execution  was  in  the  presence  of  the 

said:  "It  is  a  rule  of  convej'ancing  long  estab-  principal  must  be  affirmatively  established  by 

lished,  that  deeds  executed  by  an  attorney  or  the  party  who  relies  upon  it  as  an  excuse  for 

agent   must   be  executed    in  the  name  of   the  the   want   of  a  power  in   writing:    Videauv. 

•  constituent."     A  deed  made  under  a  general  GriJHn,  21  Id.  389. 

An  Art  relnt'ni;/  to  cnnvcyancc^t  of  real  estate. 
[Approved  March  11,  1871;  1873-4,  315.] 

■  Copveynnres  by  per.'^onft  irho.ie  n<ime>i  are  cliamjed. 

Sec'IIon  1.     Any  person  in  whom  tlie  title  of  real  estate  is  vested  who  shall  afterwards,  from 
-any  cause,  have  his  or  lier  name  changeil,  shall,  in  any  conveyances  of  real  estate  so  held,  set 
forth  tiie  name  in  which  he  or  she  derived  title  to  said  real  estate. 
Record  of  conveyances  made  (>i/  jmblic  officers. 

Sec.  2.     All  conveyances  of  real  estate,  except  patents  issued  by  the  state  as  a  party,  made 

■  by  any  public  officer  pursuant  to  any  law  of  this  state,  sliall,  when  recorded  l)y  the  county 
recorder,  be  by  him  alphabetically  indexed  in  the  "index  of  grantors,"  botii  in  tlie  name  of  the 
officer  making  such  sale  and  in  the  name  of  the  person  owning  the  property  so  sold. 

.IndexiiKj  of  such  coiwryancex. 

Sec.  .3.  It  is  hereby  made  the  duty  of  all  county  recorders  to  alphabetically  index  in  the 
"index  of  grantors,"  both  in  the  name  by  whicli  title  was  acquired  and  also  the  name  by  which 
■■  the  same  was  conveyed,  all  conveyances  referred  to  in  section  one  of  this  act. 

Sec  4.     This  act  shall  be  in  force  from  and  after  its  passage. 

AKTICLE  II. 

EFFECT    OF    TR.\NSFER. 

1104.   What  easement!^  pans  with  properly. 

Sec.  1104.  A  transfer  of  real  property  passes  all  easements  attached  thereto, 
.  and  creates  in  favor  thereof  an  easement  to  use  other  real  property  of  the  per- 
son whose  estate  is  transferred,  in  the  same  manner  and  to  the  same  extent  as 
Buch  property  was  obviously  and  permanently  used  by  the  person  whose  estate 
is  transferred,  for  the  benefit  thereof,  at  the  time  when  the  transfer  was  agreed 
upon  or  completed. 

Transfer  carries  easements:  See  the  gen-  the  commissioners  say:  "Althou'rh  the  question 
eral  subject  of  easements,  sec.  801,  ante.  In  does  not  seem  to  have  been  decided,  there  can 
explanation  of  the  last  clause  of  section  1 104,     be  little  doubt  that  the  grantee  is  entitled  to 

210 


Trru!  IV,  Chap.  II.] 


TRANSFER  OF  REAL  PROPERTY. 


§§  1105-1108 


the  benefit  of  these  quant  easements,  whether 
at  the  time  a  grant  is  bargained  for,  or  at  the 
time  when  it  is  actually  delivereil." 

That  the  grantee  takes  by  implication  all 
such  eastiiiieuts  in  the  laud  remaining  in  the 


grantor  as  are  necessary  for  the  reasonable  en- 
joyment of  tlie  part  conveyed,  see  Cave  v. 
Crafts,  53Cal.  13o. 

Transfer  of  a  thing  -ceuries  its  inciclente: 
Sec.  10S4,  aitie. 


1105.    Wlien  fee-simple  lille  is  presumed  to  pass. 

Sec.  1105.     A  fee-simple  title  is  presumed  to  be  intended  to  pass  by  a  jrrant 

of  real  property,  unless  it  appears  from  the  grant  that  a  lesser  estate  was  inteu  ded. 

Fee-Simple  presumed  to  pass:  Mahury  v.  Ruiz,  58  Cal.  11,  15. 
See  sac.  1072,  cute. 

1138.   Subseqitenthj  acquired  title  passes  by  operation  of  law. 

Sec.  hog.  "Where  a  person  purports  by  proper  instrument  to  grant  real 
property  in  fee-simple,  and  subsequently  acquires  any  title  or  claim  of  title 
thereto,  the  same  passes  by  operation  of  law  to  the  grantee  or  his  successors. 

Deed  passing  after-acquired  title.— The  .30  LI.  347;  Kirbddle  v.  Larrabee,  31  Id.  457; 
effect  upon  a  conveyance  of  land  in  fee  of  this  Green  v.  Clark,  Id.  593;  Cadiz  v.  Major--^,  33  Id. 
proMsioii,  which  is  in  substance  a  re-enactment  289.  The  conveyance  of  all  the  grantor's  rij;ht> 
of  t!  e  tliiity-third  section  of  the  act  concern-  title,  and  interest,  with  covenant  of  warranty, 
ing  conveyances,  is,  accoiding  to  the  code  com-  does  not  pass  au  after-acquired  title;  the  cove- 
mifsiuiierti,  "the  same  as  if  it  were  written  nant  applies  simply  to  the  title  conveyed:  liar- 
upon  it.-i  f Ace  that  the  grantor  conveyed  all  the  reit  v.  Birtje,  50  Id.  655;  and  so,  also,  Kimball 
estate  wliich  he  then  possessed,  or  whicii   he     v.  Sem/ile,  25  Id.  440. 

niigiit  at  an^' time  thereafter  acquire:  Clark  \.  See  the  discussion  of  the  effect  of  covenant 
Baker,  I4(.al.  G30.  As  a  quitclaim  deed  only  of  warranty  upon  an  after-acquired  title,  which 
purports  to  release  and  (juitclaim  wiiatcver  in-     covenant,  it  seems,  the  above  section  intended 


terest  tiie  grantor  possesses  at  the  tiuje,  San 
FrancUco  v.  Lawton,  18  Id.  405,  it  does  not  con- 
vey a  i-ubst'ciuently  acquired  title:  Morrixon  v. 
Wilson,  30  Id.  .344;  Cadiz  v.  iVujor,  .33  Id.  289." 
If  the  owner  of  land  conveys  by  deed  of  bar- 
gain and  s  le,  it  will  pass  the  title  subsequently 
acquireil  at  a  sheriff's  sale  in  foreclosing  a 
mortgii'.'e  existing  before  the  bargain  and  sale 
deed  was  given:  Green  v.  Clark,  31  Id.  591. 
And  generally  a  grant,  bargain,  ami  sale  deed 
carri.  s  an  after-acquire<l  title  of  the  grantor: 
Dalfoii  V.  Ilamiltiiii,  50  Id.  422.  The  thirty- 
tliird  section  of  the  act  concerning  convey- 
ancing, which  provision  is  re  enacted  in  section 
1100,  changes  the  rule  of  the  common  law  as  to 
the  etl'ect  of  deeds,  under  the  statute  of  uses, 
upon  ."ubsequeutly  accjuired  interests  of  the 
grantor,  and  gives  to  tliem  an  operation  equiv- 
alent  lo   tlie  most  expressive  covenant  of  war- 


a  deed  in  fee-siniple  to  stand  in  place  of:  3 
Washb.  on  Real  Prop.,  sees.  406-480. 

That  a  quitclaim  deed  does  not  pass  after- 
acquired  titles,  see,  in  addition  to  cases  first 
above  cited,  Quire;/  v.  Baker,  37  Cal.  465. 
But  that  a  quitclaim  deed  operates  to  transfer 
to  the  grantee  title  papers  subsequently  issued 
to  the  grantor  to  perfect  the  title  which  was 
then  in  him,  see  Crane  v.  Sdlnion,  41  Id.  03; 
Thompson  v.  Spencer,  50  Id.  532.  And  this 
even  as  against  a  purchaser  from  the  grantor 
after  the  issuance  of  such  title  deeds:  J'homp- 
son  V.  Spencer,  Kii/irn.  A  (juitclaim  deed  is  aa 
effectual  to  pass  title  as  a  grant  or  bargain  and 
sale:  Packard  v.  Joh)ison,  3  West  (.'oast  Rep. 
703;  Packard  v.  Mosif,  Id.  709. 

An  after-acquired  title  does  not  inure  to  the 
benefit  of  a  party  to  an  exchange  fif  lands, 
which  purports  only  to  "exchange   the   right 


riinty.  and  this  section  a[)plies  lo  mortgages  and  interest  correspondino;  to  each  one:"  Bixbi/ 

equally  as  to   conveyances   absolute   in   their  v.  Bent,  59  (.'al.  522.     Nor  does  an  after-ac- 

form:    San   Francisco   v.    Laicton,    18   LI.   477;  quired  title  pass  to  a  former  grantee  under  the 

Lent  V.  Morrill,  25  Id.  500;  Morri-ion  v.  IVilson,  Spanish  law:  Id.;  Norcum  v.  Gaty,  19  Mo.  68. 

1107.  Grant,  how  far  conclusive  on  purchmer. 

Sec.  1107.  Every  grant  of  an  estate  in  real  property  is  conclusive  against 
the  gi'antor,  also  against  every  one  subsequently  claiming  under  him,  except  a 
purchaser  or  incumbrancer  who  in  good  faith  and  for  a  valuable  consideration 
acquires  a  title  or  lien  by  an  instrument  that  is  first  duly  recorded. 

The  instrument  here  meant  is  "some  writ-  sideratiim  who  are  protected  as  against  prior 
ten  jiapi-r,  or  instrument  signed  and  delivered  unrecorded  conveyances:  Morse  v.  WriijUt,  60 
by  one  person  to  another  transferring  the  title     Cal.  200. 

to  or  creating  a  lien  on  property,  or  giving  a  Bona  fide  purchaser  for  value  must  have 
right  to  a  debt  or  duty."  So  that  an  attach-  paid  his  mon<!y  wiihout  notice:  Brcrtilon  v. 
ment  will  not  prevail  over  a  pri'ir  unrecorded  Mayh'-w,  2  West  Coast  Rep.  72G.  Pre-exist- 
deed:  lioaii  v.  Howard,  55  Cal.  504,  505.  ing  debt  i.s  a  valuable  consideration:  Schluler 

Prior  record  of  later  instrumen\ — It  is    v.  Ilarvey,  Id.  730. 
only  subsequent  purchasers  for  a  valuable  con- 

1108.  Conveyances  by  owner  for  life  or  for  years. 

Sec  1108.  A  grant  made  by  the  owner  of  an  estate  for  life  or  years,  purport- 
ing to  transfer  a  greater  estate  than  he  could  lawfully  transfer,  does  not  work  a 

211 


§§1109-1113  ACQUISITION  OF  PROPERTY.  Piv.  H,  Part  IV, 

forfeiture  of  his  estate,  but  passes  to  the  grantee  all  the  estate  which  the 
grantor  could  lawfully  transfer. 

1109.    Grant  made  on  condition  subsequent. 

Sec.  1109.  Where  a  grant  is  made  upon  condition  subsequent,  and  is  sub- 
sequently defeated  by  the  non-performance  of  the  condition,  the  person  other- 
wise entitled  to  hold  under  the  grant  must  reconvey  the  property  to  the  grantor 
or  his  successors,  by  grant,  duly  acknowledged  for  record. 

Conditions:  See  sees.  707  et  seq.  in  which  latter  case  the  condition,  certain  stip- 

Condition  subsequent. — Tlie  power  to  re-  ulations  relative  to  the  manner  of  paying  the 
cover  land  on  a  breach  of  a  condition  sabse-  purchase  money,  was  deemed  a  trust  cliarj^ed 
quent  here  given,  is  referred  to  in  Liebrand  v.  upon  the  property,  which  would  not  defeat  the 
Olto,  50  Cal.  242,  246.  "This  section  wa3  in-  estate  conveyed,  but  was  enforceable  like  any 
tended  to  secure  record  evidence  of  title  to  the     other  trust. 

grantor  as  fully  as  he  had  it  before  the  making  Registration  of  a  deed  containing  conditions 
of  tlie  grant:"  Ci>mmissionei-s'  note.  Non-per-  subsequent  puts  purchasers  upon  inquiry  as  to 
formance  of  an  illegal  comlition  subsequent,  as  their  performance:  Brannan  v.  Mesick,  10  CaL 
the  procurement  of  witnes.-^es  to  testify  to  a     95. 

particular  fact,  does  not  prevent  the  vesting  of  Reoording  instruments:  See  sec.  1158, 
the  legal  title  in  the  grantee:  PnUfffion  v.  /)o7i-    post,  and  note. 

ner,  48  Cal.  .369;  a  deed  on  a  condition  subse-  Unreoorded  deed  void  as  to  subsequent 
quent  passes  the  title  to  the  grantee:  Sped  v.  ftonayiJe  purchasers:  Sec.  1214,  ^06<;  sec.  1107, 
O're'jif,  51  Id.  198;  Clayton  v.  Widker,  10  Id.  450,     aide. 

mo.    Grant  on  condition  precedent. 

Sec.  1110.  An  instrument  purporting  to  be  a  grant  of  real  property,  to  take 
effect  upon  condition  precedent,  passes  the  estate  upon  the  performance  of  the 
condition.     \ Amendment,  approved  March  30,  1874;   Amendments  1873-4,  225; 

took  effect  JaUj  1,  1874.] 

Performanoe  of  the  condition  will  be  ex-  95;  but  after  an  absolute  conveyance  has  been 
cused  where  t!ie  grantor  puts  it  out  of  the  made,  the  grantor  cvnnot  impose  conditiona 
power  of  the  grantee  to  perform:  lloiujhton  v.  upon  the  grantee,  tliere  being  no  estate  in  the 
Steele,  5S  Cal.  421;  a  con\eyance  upoii  a  con-  grantor  upon  which  the  conditions  can  take  ef- 
dition  ])recedent  passes  no  title  until  the  con-  feet:  Alemany  v.  Daly,  36  Id.  90. 
dition  is  performed:  Brannan  v.  AMeskk,  10  Id. 

1111.  Grant  oj"  rents,  reversions,  and  remainders. 

Sec  1111.  Grants  of  rents  or  of  reversions  or  of  remainders  are  good  and 
effectual  without  attornments  of  the  tenants;  but  no  tenant  who,  before  notice  of 
the  grant,  shall  have  paid  rent  to  the  grantor,  must  suffer  any  damage  thereby. 

See  arde,  sec.  821,  and  note. 

1112.  Boundary  by  highway,  wtiat  passes. 

Sec  1112.  A  transfer  of  land,  bounded  by  a  highway,  passes  the  title  of  the 
person  whose  estate  is  transferred  to  the  soil  of  the  highway  in  front  to  the 
center  therof,  unless  a  different  intent  appears  from  the  grant.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  225;  took  iffect  July  1,  1874.J 

See  aide,  sec.  831,  and  note. 

1113.  Implied  covenants. 

Sec  1113.  From  the  use  of  the  word  "  grant"  in  any  conveyance  by  which 
an  estate  of  inheritance  or  fee-simple  is  to  be  passed,  the  following  covenants, 
and  none  other,  on  the  part  of  tlie  grantor  for  himself  and  his  heirs  to  the 
grantee,  his  heirs,  and  assigns,  are  implied,  unless  I'estrained  by  express  terms 
contained  in  such  conveyance: 

1.  That  jjrevious  to  the  time  of  the  execution  of  such  conveyance  the  grantor 
has  not  conveyed  the  same  estate,  or  any  right,  title,  or  interest  therein,  to  any 
person  other  than  the  grantee; 

2.  Tliat  such  estate  is  at  the  time  of  the  execution  of  such  conveyance  free 
from  incumbrances  done,  made,  or  suffered  by  the  grantor,  or  any  person  claim- 
ing under  him. 

212 


Title  IV,  Chap.  III.]     TRANSFER  OF  PERSONAL  PROPERTY.  §§  1114-1140 

Such  covenants  may  be  sued  upon  in  the  same  manner  as  if  they  had  been 
expressly  inserted  in  the  convej'auce. 

Stats.  1S55,  171,  sec.  9.  "The  operative  estate  in  a  corporeal  hereditament.  It  has?  he- 
words  of  a  release  in  a  simple  qnitclaim  deed  come  a  generic  term  applicable  to  t'le  transfer 
are  'remise,  release,  and  quitclaim.'  When  of  all  classes  of  real  property:  .9ft)(  /Vancwco  ifc 
the  word  'grant'  is  hereafter  employed,  or  0.  R.  li.  Co.  v.  Oakland,  4,3  Cal.  502, 
when  the  words  'grant,  bargain,  and  sell'  have  The  covenants  implied  in  a  grant,  bargain, 
lierutofore  been  employed,  the  operation  of  the  and  sale  deed  are  not  broken  l)y  an  uiitstand- 
convcyanee  wil  be  nut  meiely  to  release,  but  ing  title  in  a  third  person:  Bri/an  v.  Swain,  5G 
to  transfer  any  interest  which  tlie  grantor  pos-  Cal.  GIG. 

Bessed  at  the  execution  of  tliedeel:   Tonrhard  Covenants  ruanins  with  land:  See  sees. 

V.  Cro'r,  20  Cal.    IT.O;  MidW  v,  Bo<jos,  2j  Id.  14n0-1407,  ):0't. 

186:"  Commissioners' note.  The  "usual  covenants:"   See  sec.   1733, 

The  wonl  "grant"  is  effectual  to  convey  an  post. 

1114.  Incximhrances,  xchat  inrlade. 

Sec.  1114.  The  term  "incumbrances"  includes  taxes,  assessments,  and  all 
liens  upon  real  property.  [Amendment,  approved  March  30,  1874;  Aine)idment3 
1873-4,  225;  took  effect  Jaly  1,  1874.] 

1115.  Lineal  and  coUtUernl  warranties  abolished. 

Sec.  1115.  Lineal  and  collateral  warranties,  with  all  their  incidents,  are 
abolished;  but  the  heirs  and  devisees  of  every  person  who  has  made  any  cove- 
nant or  agreement  in  reference  to  the  title  of,  in,  or  to  any  real  property  are 
■answerable  upon  such  covenant  or  agreement  to  the  extent  of  the  land 
descended  or  devised  to  them,  in  the  cases  and  in  the  manner  prescribed  by 
law. 

CHAPTER  III. 

TRANSFER  OF  PERSONAL  PROPERTY. 
Article  I.    Mope  of  Tra.nskkr 1 135 

IT.      WiLAT   OPEItATES   A.S   A    TrAN.SFER 1  1 40 

III.     Cuts  , 1146 

ARTICLE  I. 

MODE   OF    TRANSFER. 

1135.  When  must  be  in  writing. 

Shc.  1135.  An  interest  in  a  ship,  or  in  an  existing  trust,  can  be  transferred 
only  by  operation  of  law,  or  by  a  written  instrument,  subscribed  by  the  person 
making  the  transfer,  or  by  his  agent. 

"This    p'ovision   was    intended    to   settle   a  upon  her  arrival,   see  Dav'uUon  v.  Gorham,  6 

donl)trul  fpR'stion.     The  nniform  language  of  Cal.  34.J.     Vessels   form  no  exception   to    tlie 

the  autho.ities  is  that  a  bill  of  sale  is  the  cus-  ruli;   that   possession  of   personal   property  is 

toniary  and  proper  mode  of  tiansfer.     Agree-  primn  fane  evidence  of  ownersiup:   linili'y  v. 

nients   for  sale  are  legulated  by  the  title  on  JSIeic  World,  2  Id.  370.     See  sec.  3440,  j/otif. 

sale:"  Commissioners'  note.  Validitv  an<l  effect  of  mortgage  of  a  vesfsel 

As  to  the  validity  of  a  mortgage  of  a  ship  at  at  sea:   Portland  Bank  v.  .^tithb-^,  4  Am.  Dec. 

sea  as  against  creditors  immediately  attaching  151;  Badlani  v.  Tucker,  11  Id.  202. 

1136.  Transfer  by  sale. 

Skc.  113(j.     The  mode  of  transferring  other  personal  property  by  sale  is  regu- 
lated by  the  title  on  that  subject,  in  Division  Third  of  this  code. 
Transf3r  of  obligations:  Sie  sees.  14r)7  et  seq. 
Sales  of  property  generally:  See  sees.  1721,  post,  et  seq. 

ARTICLE  II. 

WHAT  OPERATES  AS  A  TRANSFER. 

1140.    Transfer  of  title  vnder  sale. 

Sec  1 140.  The  title  to  personal  property,  sold  or  exchanged,  passes  to  the 
buyer  whenever  the  parties  agree  upon  a  present  transfer,  and  the  thing  itself 
is  identified,  whether  it  is  separated  from  oLhcr  things  or  not. 

213 


§§  1141-1146  ACQUISITION  OP  PROPERTY.  [Div.  II,  Part  IV, 

Validity  of  sale  of  personal    property:  parties  governs  in  determining'whether  the  prop- 
See  sees.  1730,  poHt,  et  seq.;  and  sec.  lG2t,  ]>ost.  erty  in  tiie  chattel  passes  or  not,  see  Kliiee-  Cot- 

Delivery:  See  sees.    17J3  etseq.,  and  sec.  ton  C(i.ies  22  Wall.  180;  Hatch  v.  (HI  Co.,  100 

1054.  ante.  U.    S.    124;  Terry  v.   Whedr-r,  25  N.   Y.  520; 

Agreement  to  sell  and  bay  defined:  See  Callajhnn  v.  Myers,  8!)  111.  560;  Fletrher  v.  Fn- 

sec.  1729,  po<t.  gram,  40  Wis.    191.     2.  With  respect  to  the 

Transf3r  of  title  on  sale  of  personalty  is  identification  of  the  articles  sold,  it  was  a  gen- 

an  entirely  independent  question  from  the  de-  eral  rule  that  the  sale  is  not  complete  so  as  to 

livery   of   the   articles.     The   title   may   have  pass  tlie  title  until  so  long  as  anything  remains 

pass "d,  and  the  possession  still  be  in  the  seller  to  he  done  to  identify  or  to  discriminate  it  from 

who  holds  the  goods  as  a  depositary  for  hire,  other  things;  Cariifher.'i  v.  McOnrvi-y,  41  Cal. 

sec.  1718,  poxt,  and  vi^hose  duty  it  is  to  deliver  15;  3IcLa)u/hUii  v.  Piatt!.,  27  Id.  451;  Adams 

to  the  buyer:  Sec.   1753.     The  passing  of  the  v.  Oorham,  6  Id.  G8;  Horr  v.  Bahr,  Id.  489; 

title,  however,  is  dependent  upon:  1.  Tlie  in-  S.  C,  8  Id.  603,  where  a  distinction  is  drawn 

tention  of  the  contracting  parties;  and,  2.   The  when  the  vendor  sells  the  entire  lot  to  different 

identitication  of  tiie  article  sold:  See  sec.  1140,  purchasers  between  whom  the  apportionment 

supra.     1.  If  it  is  expressly  understood  that  must  take  place:  S.  C. ,  11  Id.  393. 
the  sale  is  not  com])lete  so  as  to  pass  the  title         But  modern  American  decisions  hold  it  to  be 

to  the  purchaser,  the  fact  of  delivery  to  him  a  question  of  intention,  and  that  the  property 

does  not  ]ias3  the  title:   Putnam  v.  Lamphier,  in  the  portion  sold  may  by  contract  pass  at 

31  Cal.  151,  a  conditional  sale  depending  upon  once,  although  such  portion    is  mingled  with  a 

payment  of  the  purchase  price;  Kahlerv.  //ayes,  general  mass:   Kimherhj  v.   Patrhin,    19  N.  Y. 

41  Id.  455,  a  similar  principle  applied  to  sale  of  330;  Russell,  v.  Carrrngfon,  42  Id.   118;  Grout 

a  piano  on  installments;  and  see  il/iif.'erv.  •S'/pp??,,  v.   Gilc,  51   Id.   431;  Foot  v.  March,  Id.  288; 

34  Id.  138,  a  similar  case;  Boon  v.  3Josx,  70  N.  Bradlai  v.  Wherler,  44  Id.  495;  S.'evns  v.  Situ- 

Y.  465;  f/utchinx  v.  Munger,  41  Id.   155;  Bed-  tfe,  49  Id.  35;  Pleaf^ants  v.  PnnllHon,  6  Rand. 

lard  v.  Bnrgeft,  40  Id.  314;  S  C,  47  Barb.  646;  473;  Chapman  v.  Sh"pard,  .39  Conn.  413;  ("?(>A- 
Ullmanv.  Barnard,!  Gr:\y,  5rA.    On  the  other     ing  v.  Breed,  14  Alien,  370;  Plizzek  v.   Wh'df, 

hand,  a  sale  may  be  I'omplete  before  delivery  so  23  Kan.  621;  Wahlronx.  Chnse.  .37  Me.  414; 
as  to  throw  risk  of  loss  upon  the  vendee:  Ty<on  Hurffv.  Hires,  40  N.  J.  L.  581;  Ilorr  v.  Baker, 
V.    W'lln,  2  Cal.  122;  Townneiid  v.    '  argraves,     swpra. 

lis  Miss.  325.  332;  Oh/phant  v.  B'tk^r,  5  Denio,  See  the  valuable  contribution  to  the  discus- 
379;  Bissell  v.  /lalrom,  39  N.  Y.  275,  279;  sions  of  the  above  questions  in  Mr.  Corbin'a 
Sfckel  V.  Scott,  66  111.  lOG;  Kin;/  v.  Jarman.^ri  American  edition  of  Benjamin  on  Sales,  sees. 
Ark.  190,  197.     And  that  the  intention  of  the     308  et.  seq. 

1141.  Transfer  of  lltle  umier  executory  agreement  for  sale. 

Sec.  1141.  Title  is  transferred  by  au  executory  agreement  for  the  sale  or  ex- 
cliange  of  personal  property  only  when  the  buyer  has  accepted  the  thing,  or 
when  the  seller  has  completed  it,  prepared  it  for  delivery,  and  offered  it  to  the 
buyer  with  intent  to  transfer  the  title  thereto,  in  the  manner  prescribed  by  the 
chapter  upon  offer  of  performance. 

Offer  of  performanoe:  See  sees.  1485,  yjos^  of  this  section  to  an  agreement  for  the  manu- 

et  seq.  facture  of  a  cable  rope,  to  be  accepted  after  trial 

Transfer  of  title  under  executory  agree-  if  found  sufficient:  Uollidie  v.  Sutter  St.  li.  R., 

tuent  of  sale. — See  apfjlication  of  the  principle  03  Cal.  575. 

1142.  When  buyer  acquires  better  title  than  seller  has. 

Sec.  1142.  Where  the  possession  of  personal  property,  together  with  a  power 
to  dispose  thereof,  is  transferred  by  its  owner  to  another  person,  an  executed 
sale  by  the  latter,  while  in  possession,  to  a  buyer  in  good  faith,  and  in  the  ordi- 
nary course  of  busiue^s,  for  value,  transfers  to  such  buyer  the  title  of  the  former 
owner,  though  he  may  be  entitled  to  rescind,  and  does  rescind  the  transfer  made 
by  him. 

Sales  by  factor:  See  post,  sec.  2309. 

Sales  by  pawnee:  See  Gay  v.  Mo^a,  34  Cal.  125;  Donohue  v.  Gamble,  38  Id.  340. 


ARTICLE  III. 

GIFTS. 

1146.    Gifts  defined. 

Sec.  1146.  A  gift  is  a  transfer  of  personal  property,  made  voluntarily  and 
without  consideration. 

The  want  of  consideration  ia  one  of  the  distinctive  features  of  a  gift:  See  Benj.  on  Sales,  3. 

214 


Title  IV,  Chap.  HI.]     TRANSFER  OF  PERSONAL  PROPERTY. 


§§  1147-1150 


1147.    Gift,  how  made. 

Sec.  1147.     A  verbal  gift  is  not  valid, 

sion  and  control  of  the  thing  are  given, 

there  is  an  actual  or  symbolical  delivery 

Delivery,  actual  or  symbolical,  is  essen- 
tial to  complete  a  gift:  Noble  v.  Smith,  3  Am. 
Dec.  399:  hullock  v.  Tiniien,  6  Id.  592;  licid 
V.  Cotfock,  9  Id.  7-29;  Don  v.  G.  d-  C.  X.  M.  Co., 
31  Cal.  629;  Richardson  v.  McNulty,  24  Itl.  34.5; 
Mahmi  V.  United  SI ate-%  16  Wall.  143;  O'lovcr 
V.  Graver,  24  Pick.  261;  Young  v.  Youikj,  80 
N.  Y.  422.  And  in  this  particular  there  is  no 
difference  between  a  gift  inter  vivos  and  a  gift 
cazt^rt  mortis:  See  post,  sec.  1149.  No  formal 
delivery  is  necessary  where  the  donee  is  already 


unless  the  means  of  obtaining  posses- 

nor,  if  it  is  capable  of  delivery,  unless 

of  the  thing  to  the  donee. 

in  possession  of  the  chattel  as  bailee  of  th« 
donor:  Wlmj  v.  Mtrrhaiit,  57  Me.  3^i3;  Chara- 
preiiw  Bkuichard,  39  N.  Y.  Ill;  Ttabrook  v. 
Lroirn,  17  "'.ud.  410. 

Valid  g.f  ■;  of  personalty  by  husband  to  wife: 
See  Kane  v.  JM-wi'iul,  03  Oal.  464. 

Subject  of  gift  must  be  in  esse — For 
example,  the  husband  cannot  give  tlie  wife 
what  is  to  be  paid  for  board  due  the  commu- 
nity estate:  Jitad  v.  Itahm,  3  West  Coast  Rep. 
150. 


1148.  Gift  not  revocable. 

Sec  1148.     A  gift,  other  than  a  gift  in  view  of  death,  cannot  be  revoked  by 
the  giver. 
Revoking  gifts  mortis  causa:  Sec.  1151,  ivfra. 

1149.  Gift  in  view  of  death,  what. 

Sec.  1149.     A  gift  in  view  of  death  is  one  which  is  made  in  contemplation, 

fear,  or  peril  of  death,  and  with  intent  that  it  shall  take  effect  only  iu  case  of 

the  death  of  the  giver. 

of  ohoses  in  action  as  subjects  of  gifts  cau'ta 
mortis,  see  the  notes  to  Bradley  v.  Hunt,  23 
Am.  Dec.  GOO;  and  to  Harris  v.  CUirlc,  51  Id. 
3J2.      That  ail    unindorsed    promi^^so^y    note, 


Gifts  causa  mortis  are  gifts  defeated  by 
a  conilitiou  subsecjuent,  tiie  i-ecovery  of  the 
donor.  In  a  recent  decision  of  the  supreme 
court  of  the  United  States,  principles  upon 
which  there  had  lieen  considerable  diversity  of     payable  to  order,  may  be  made  the  subject  of 


opinion  in  this  country  were  finally  settled. 
From  the  report  of  the  case  a  few  sentences 
are  here  qiioted:  Da»kft  v.  Jlasftell,  107  U.  S. 
602.  "This  statement  of  the  law  we  think 
to  be  correctly  deduced  from  the  judjjments 
of  the  highest  courts  in  England  and  in 
this  country.  *  *  *  A  donatio  mortis  co una 
must  be  completely  executed,  precisely  as  re- 
quired iu  the  case  of  gifts  inter  vivos,  subject  to 
be  divested  ljy  the  happening  of  .iny  of  the  con- 
ditions sr.bsi  (jnent;  that  is,  upon  actual  revo- 
cation by  the  donor,  or  by  the  donor's  surviv- 
ing the  ai'preiiended  peril,  or  outiiviug  the 
donee,  or  by  the  occurrence  of  a  deficiency  of 
assets  necessary  to  pay  the  debts  of  the  de- 
ceased tloiior.  These  conditions  are  the  only 
qualitications  that  distinguish  gifts  mortis  causa 
and  inter  v^vos.  On  the  other  hand,  if  the  gift 
does  not  take  effect  as  an  executed  and  com- 
plete transfer  to  the  donee  of  the  possession 
and  title,  either  legal  or  equitable,  during  the 
life  of  tlie  donor,  it  is  a  testamentary  disposi- 
tion, good  only  if  made  and  proved  as  a  wiil." 
The  casi;  before  the  court  presented  the  fact  of 


a  gift  causa  mortis,  see  Drake  v.  lleiken,  61 
Cal.  346. 

Revoking  gift  in  view  of  death:  See  sec, 
llol.  infra. 

Delivery  essential. — There  must  be  a  de- 
livery of  the  property  either  to  the  donee  or  to 
some  jK-rson  for  liis  use  or  benefit,  and  the 
donor  must  part  with  all  dominion  over  the 
property,  and  the  title  must  vest  in  the  donee, 
subject  to  tlie  right  of  the  donor  at  any  time 
during  his  life  to  revoke  the  gift:  Juniiel  v. 
Smith,  64  Cal.  346;  Dole  v.  Lincoln,  31  Me. 
428,  429;  Curnj  v.  Powers,  70  N.  Y.  217; 
Hatch  V.  Atkinson,  56  Me.  327;  'Taylor  v, 
Henri;,  48  Md.  5r>0.  All  the  authorities  agree 
that  there  must  be  a  delivery  of  the  property 
intended  to  be  the  subject  of  the  gift:  Daniel 
V.  Siritli,  supra;  Ham  v.  Moore,  Adrn'r,  8 
Ohio  St.  242;  Fiero  v.  Fiero,  5  Thoinp  &  G. 
151;  Casey.  Dennison,  9  R.  I.  SS;  McGnnhv. 
Hennolds,  116  Mass.  566.  In  Daniel  \.  Smith, 
supra,  certain  money  in  bank  was  claimed  te 
have  been  given  causa  mortis,  but  the  evidence 
merely  showing  a  request  on  the   jiart  of   the 


delivery  of   a  certificate  of   deposit   by  the  decedent  that  a  third  person  take  charge  of  all 

decedent  to  the  claimant,  which  delivery  con-  his  effects,  including  the  pass-book,  ami   give 

tesiants  urged,  and  successfully,  was  not  a  suf-  them  to  him  if  he  recovered,  if  not,  to  his  ilaugh- 

ficieiit  delivery  to  make  the  transaction  a  valid  ter,  and  that  the  pass-book  was  not  present  afc 

gift  CI luiu  mortis.  the  time  nor  placeil  under  the  control  of  the 

For  a  collection  of  decisions  upon  the  topic  third  person,  the  court  denied  the  claim. 

1150.    Whfii  gift  presumed  to  be  in  view  of  death. 

Sec  1150.  A  gift  made  during  the  last  illness  of  the  giver,  or  under  circum-»- 
stances  which  would  naturally  impress  him  with  an  expectation  of  speedy  death;, 
is  presumed  to  be  a  gift  in  view  of  death. 

See  note  to  sec.  1149. 

215 


|§  1151-1 15&  ACQUISITION  OP  PROPKRTY.  [Div.  II,  Part  IV, 

1151.  Jirvocatiori  of  gift  in  view  nf  death. 

Sec.  1151.     A  gift  in  view  of  death  may  be  revoked  by  the  giver  at  any  time, 

and  ia  revoked  by  his  recovery  frjm  the  illness,  or  escape  from  the  peril,  under 

the  presence  of  which  it  was  made,  or  by  the  occurrence  of  any  event  which 

■would  operate  as  a  revocation  of  a  will  made  at  the  same  time;  but  when  the 

gift  has  been  delivei'ed  to  the  donee,  the  rights  of  a  bona  fide  purchaser  from 

the   donee   before   the   revocation   shall    not   be   affected   by   the   revocation. 

\Ani('.ndinenl,  approved  Marcli,   '60,    1874;  Amendments  1873-4,  220;  took  cjf<'i:i 

,Mii  1,  1874.] 

Revokiug  gift  oausamortia:  See  for  the  va-        Gift  inter  vivos  not  revooabls:  See  sec. 
rious  o:nulitions  which  will  lieteat  a  gift  made     1148,  supra. 
in  \'iew  of  death,  the  note  to  sec.  114'J,  supra. 

1152.  Effect  of  will  upon  gift. 

Sec.  1152.  A  gift  in  view  of  death  is  not  affected  by  a  previous  will;  nor  by 
a  subsequent  will,  unless  it  expresses  an  intention  to  revoke  the  gift. 

1153.  ]Vhen  treated  a.s  legacy. 

Si-:o.  1153.     A  gift  in  view  of  death  must  be  treated  as  a  legacy,  so  far  as 

relates  only  to  the  creditors  of  the  giver. 

"  It  is  subject  to  the  debts  of  the  iloDor  upon  in  the  donee:  Ross.  Leg.  26:"  Commissioners' 
a  deliciency  of  assets:  1  P.  Wms.  405.  But  it  note.  Deficiency  of  assets  is  a  oonditiou  sub- 
does  not  fall  within  an  administration  nor  re-  secjuent,  workiui^  a  revocation  of  the  gift:  See 
quire  any  act  iu  the  executors  to  p<irfect  a  title  the  note  to  sec.  1149,  supra. 

CHAPTER  IV. 

RECORDING  THANSFERS 

Article  I.    What  may  be  Recorded 1 1 58 

II.     Mope  of  Recordixo 1 1  ()9 

III.  Proof  and  Acknowledgments  of  Instrumk.vt.s 1 1  SO 

IV.  Effect  of  Recording  or  of  the  Want  thereof 1213 

ARTICLE  I. 

WHAT    MAY    BE    RECORDED. 

1158.    What  may  be  recorded. 

Sec.  1158.     Any  instrument  or  judgment  affecting  the  title  to  or  possession 

of  real  property  may  be  recorded  under  this  chapter. 

Compare   with   section   1215,   as   indicating  equities:  lUrsirk  v.  Sunderlnmt,  fi  Id.  207;  and 

wh.:t  may  l)e  recorded.  to  jiunish  a  prior  grantee  for  placi:i'^  it  in  tlie 

Plaoe  of  recording:  See  sec.  IIGO,  pos-i.  power  of  tlie  grantor,  by  omitting  to  lecord  the 

Hjie.'iuaon  of  instrument  and  acknowl-  early  deed,  to  commit  a  fraud   ujTon   otiiers: 

edgment  to  entitle  to  b3 recorded:  See  sec.  Bird  v.  DfiiUon,  7  Id.  297.     Registiation  laws 

1161,  iij'rci,  and  sees.  1  ISO  et  seq.  do  not  protect  subsef|uent  ])urch;iSf'rs  who  know 

The  word  "instrument,"  used  in  the  above  of   prior  unrecorded  convey.inccs:     Wixx/mor'h 

section,  indicates  '"some  written  paper  or  in-  v.  Guzman,  1   Id.  20.3;  and  sec  sec.  1217,  i>t>'<t; 

strnjiient.  siijned  and  delivered  by  one  person  and  notice  to  an  agent  is  notice   to   tie  pnr- 

to  anotlier,  transferring  the  title  to  or  creating  chaser:   Mahoiiey  v.  Middl'lon,  41  LI.  41.     Nor 

-a  lien  on  property,  or  giving  a  right  to  a  debt  are  creditors  as  such    protecteil    by  its  provis- 

•r  diiry."     It  does  not  embrace  the  case  of  a  ions:    Hunter  v.  Wafson,   12  LI.  3(i;3;    MdJahe 

■writ  of  any  kind:     Iloa(j  v.  Howard,  55  Cal.  v.  Grey,  20  Id.  509;    Dennis  v.  B'lnH,  (5  Id. 

■  604,505.  270.     An  unrecorded  deed    is    good  :is  agninst 

3*119  object  of  the   recording   acts  is  to  a  subsefjuent  attachment:   llonj  v.  Ilou-ard,  .55 

provide  the  public  with  means  of  information  Id.  564;  T^l.aut  v.Siny'ke,  45  Id.  161;   LeC'e.rt 

as  to  the  state  of  tlie  title  to  land,  in  order  v.  Callahan,  52  Id.  2,')2;  or  asa,';.i.ist  a  jwdg- 

to  protect  subsequent  purcliasers:    Wo'idworth  ment obtained  subsequently: /^/j;/'?/ v. //w/^ok, 

V.  Guzman,  1  Cal.  20:5;  Call  v.  Hayings,  W  Id.  15  Id.  127. 

179;  Mcsirk  V.  Sunderland,  6  Id.  297;    Hinder        'Whaa  reoordlng  does  not  impart  notice. 

V.  WnUoii,   12  Id.  ,363;    Pixley  v.  Ilwjuhis,    15  The    recording  of   an  instruuiont    cx.cu'ed  as 

Id.  127;   //fi.'/er  v.  Sped,  52  id.  579.     The  de-  prescribe  1  by  law  gives  convLruclive  n')oicc.  of 

eign  is  to  protect  iowfiyifif' purchasers  who  have  the  contents  of  tliat  instrument:    Ck  -m'terlain 

j;o  nolice  of  a  prior  unrecorded  deed:  Call  v.  v.   lied,,  7  Cal.  292;   lla-jer  v.  Sjier.L  .52  LI.  579. 

Jjasdnijs,  o  Id.    179;   to  protect  against  latent  But  to  charge  with  notice  a  purcha:jcr  or  mort- 

216 


liTLE  IV,  Chap.  IV.] 


RECORDIXG  TRANSFERS. 


§§  1159-1161 


gagee — for  it  is  to  both  classes  the  recording 
acts  apply,  sec.  1213,  post-^theva  are  several 
things  to  be  taken  into  consideration:  1.  Tlie 
inati'unient  must  be  legally  entitleii  to  registra- 
tion: liacuiiUlat  V.  Sarifievdin,  32  Id.  37G;  Lilxhop 
V.  Scliiieiitcr,  48  Mo.  472;  Commissi' iiipi-s  v, 
Ba/'corl:,  5  Or.  572;  Prmgle  v.  Dunn,  37  Wis. 
449;  and  f^aa  note,  SO  Ain.  Dec.  4G3.  The 
record  of  an  instrument  not  executed  as  re- 
quired inij)art3  no  notice  to  subsecjuent  pur- 
chasers or  incumbrancers:  JiGcotiilat  V.  Saiise- 
vain,  nxijird ;  Btuhop  \.  Srhiieider,  napfa;  jl/f- 
Minn  v.  O  Connor,  27  Cal.  23S;  Haco^iillat  v. 
Rpnf,  .S2  Id.  450.  2.  The  record  imparts 
notice    of    that   only   which   appears    on   tlie 


certificates:  Paqe  v,  Porjem,  31  Cal.  293. 
Recording  in  a  book  long  disused  for  registra- 
tion purposes,  Snmjpr  v.  Adams.  14  Am.  Dec* 
4">n,  or  out  of  its  proper  order,  is  not  a  good  re- 
cording: N.  t.  L.  Ins.  Co.  V.  Il7i/7f,  1 7  N.  Y.  4G9. 
In  Smith  v.  Brannttn,  l.'l  Id.  107,  it  SL'cms  that 
a  record  made  by  a  recorder  elected  witiiout  au- 
thority of  law  is  of  no  elhcacy;  and  i:i  CaUlivell 
V.  Center,  30  LI.  539,  a  record  in  lead  pencil  was 
declared  bad.  This  decision  was  l);'.sed  ujion 
the  language  of  the  statute  and  the  general 
purpose  of  the  record. 

The  validity  of  the  record  of  course  is  to  be 
tested  by  the  i-equircments  of  the  registration 
laws.     For  example,  in  regai  d  to  an  erroneous 


face  t)f  the  record.     If  the  description  is  eiTo-  indexing  of  a  record,  some\lecis;ons  turn  upon 

neous,  or  d(.es  not  cover  all  the  land  affected,  the  duty  of  the  recorder  to  index:  Sec  Priiir/le 

the     suhseqnent    purchaser     is     ne'ertheless  v. />«»//,  37  Wis.  447; 'S'c/tf// v.  iS'Vi«,  70  Pa.  8t. 

obliged   to   lodk   only   to    the  record,    and    is  398;  Cliatham  v.  Bra  /ford,  50  Ga.  G'J2;  Curtis 

not  charged  with  notice  of  the  conveyance  of  v.  Li/man,  24  Vt.  338.     See   Pol.   Code  as  to 

more  or  other  land  tl>an  is  described:  CVtrt»;6p/'-  duty  of  recorder,   sees.  4234  et  se(]. ;  and  see 

lain  V.  Bell,   7  Cal.  294;  Sanyer  v.  Cra'ijne,  10  post,  sec.  1172. 

Vt.   555.     Tiiere   is,  however,  a  difFerence  of  Uiiautliorized    recording.  —  As    we    h.-ive 

opinion  in  this  particular  among  the  courts:  See  seen    that    the    record    of   a    defectively    exe- 


cuted instrument  does  not  inii)art  notice,  so 
registration  of  an  instrument  not  authorized  by 
statute  to  be  recorded  is  of  no  effect  to  fix  no- 
tice upon  third  persons:  Mesirk  v.  Saiiderlavd, 
G  Cal.  207;  James  v.  More  if,  14  Am.  Dec.  475, 
and  nute  512. 

Prooeedingg  to  correct  imperfect  ac- 
knowledgment: Sees.  1202,  1.303.  /jost. 

Bona  fide  purohasars  wijliout  notice 
whose  <leetls  are  first  recorded  take  precedence 
over  prior  grantee:  Sec.  1107,  ant«;  sec.  1214, 
post. 

Instrument,  •v/lien  deemed  recorded:  See 
sec.  1 1 70.  />'>6t. 

Effect  of  recording,  or  want  thereof:  See 
sees.  1213,  post,  et  seq. 


the  note  to  Sawyer  v.  Adams,  30  Am.  Dec.  4G3. 
3.  An  instrument  ought  to  be  properly  i-e- 
corded,  i.  e.,  it  should  be  in  the  book  set  apart 
for  instruments  similar  to  the  one  recorded.  A 
deed  intended  as  a  mortgage  must  be  recorded 
with  the  mortgiJges;  if  placed  in  the  book  of 
deeds,  it  does  not  impart  notice:  Sec.  1171, 
post;  White  v.  Moore,  1  Paige,  5Vtl;  Brown  v. 
Dean,  3  Wend.  208;  D<'y  v.  Dunham,  2  Johns. 
Ch.  182;  Manufacturers'  Biin/cv.  B  nikofPenn., 
7  Wattn&  S.  335;  Friedlyv.  Ilamiltrm,  l7Serg. 
&  P.  70;  Edwardsw  Trumbull,  50  Pa.  St.  509; 
Jackson  V.  Van  Valkenhurn,  8  Cow.  2G0;  Shaw 
V.  Wifth/re.  Go  Me.  485;  Purdij  v.  Hnntin(jton, 
42  N.  Y.  343.  Filing  sheriff's  certificate  does 
not  give  notice  to  third  persons,  if  the  recorder 
does  not  keep  it  in  the  place  set  apart  for  such 

1159.   Judgments  may  be  recorded  without  acknoivledgment. 

Sec.  1159.     Judgments  affecting  the  title  to  or  possession  of  real  property, 
autbenticated  by  the  certificate  of  tbe  clerk  of  the  court  in  which  such  judg- 
ments were   rendered,  may  be  recorded  without  acknowledgment  or  further 
proof. 
Recorder  must  file  judgments:  Pol.  Code,  sec.  423S. 

1163.    Lrltera  patent  may  be  recorded  without  avknoivledgment. 

Sec.  IIGO.  Letters  j)atent  from  the  United  States,  or  from  the  state  of  Cali- 
fornia, executed  and  authenticated  pursuant  to  existing  law,  may  be  recoi'ded 
without  acknowledgment  or  further  jjroof ;  and  where  letters  patent  have  been 
lost,  or  are  beyond  the  control  of  any  party  deraigning  title  therefrom,  or  for 
any  reason  they  remain  unrecorded,  any  person  claiming  title  thereuader  may 
cause  a  transcript  of  the  copy  of  such  letters  patent  kept  by  the  government 
issuing  the  same,  duly  certified  b}-  the  officer  or  individual  liaving  lawful  cus- 
tody' of  such  copy,  to  be  recorded  in  lieu  of  the  original;  and  such  recorded 
cojiv  shall  have,  prima  facie,  the  same  force  and  effect  as  the  original,  for  title 
or  for  evidence,  until  said  original  letters  patent  be  recorded.  {Amendment^ 
approved  April  1,  1878;  Amendments  1877-8,  85;  took  effect  sixtieth  day  after 
posf<age.  ] 

1161.    Jnslriiments  to  be  acknowledged,  except,  etc. 

Sec  IKjI.  Before  an  instrument  can  be  recorded,  unless  it  belongs  to  the 
class  provided  for  in  either  sections  eleven  hundred  and  fifty-nine,  eleven  hun- 

217 


§§1162-1172  ACQUISITION  OF  PROPERTY.  Piv.  II,  Part  IV, 

dred  and  sixty,  twelve  hundred  and  two,  or  twelve  hundred  and  three,  its  exe- 
cution must  be  acknowledged  by  the  psi'sou  executing  it,  or  if  executed  by  a 
corporation,  bj'  its  president  or  secretary,  or  proved  by  a  subscribing  witness, 
or  as  provided  in  sections  eleven  hundred  and  ninety-eight  and  eleven  hundred 
and  ninety-nine,  and  the  acknowledgoient  or  proof  certified  in  the  manner  pre- 
scribed by  Article  III.  of  this  chapter.  [Ainendnient,  approved  March  30,  1874:; 
Ame7idinenls  1873-4,  226;  look  effect  July  1,  1874.] 

1162.  Same. 

Sec.  1102.  An  instrument  proved  and  certified  pursuant  to  sections  eleven 
hundred  and  ninety-eight  and  eleven  hundred  and  ninety-nine  may  ba  recorded 
in  the  proper  office  if  the  original  is  at  the  same  time  deposited  therein  to 
remain  for  public  inspection,  but  not  otherwise. 

1163.  Poiofr  of  attorney  to  be  first  recorded. 

Section  1 1G.3  was  repealed  by  act  approved  March  30,  1874;  Amendmeuts  1873-4,  226;  took 
efiFeot  July  1,  187-1. 

1164.  Transfers  in  trust,  etc. 

Sec.  1 1G4.  Transfers  of  property  in  trust  for  the  benefit  of  creditors,  and 
transfers  or  liens  on  property  by  way  of  mortgage,  are  required  to  be  recorded 
in  the  cases  specified  in  the  titles  on  the  special  relation  of  debtor  and  creditor, 
and  the  chapter  on  mortgages,  respectively. 

Special  relations  of  dsbtor  and  creditor:  See^^os^,  sees.  3429^etseq. 

Mortgages:  See  sees.  2920  et  seq. 

1165.  Fees  of  recorder  to  be  indorsed. 

Sec  11G5.  The  recorder  must  in  all  cases  indorse  the  amount  of  his  fee  for 
recordation  on  the  instrument  recorded.  \Ni!w  Sf^ction,  approved  March  11, 1874; 
Amendinertis  1873-4,  274;  took  effect  slxllelh  day  after  passage. \ 

See  Pol.  Code,  sec.  4235. 

ARTICLE  II. 

MODE    OF   EECORDDfa. 

1169.   In  what  office. 

Sec.  11G9.  Instruments  entitled  to  be  recorded  must  be  recorded  by  the 
county  recorder  of  the  county  in  which  the  real  property  affected  thereby  is 
situated. 

inO.    Instrument,  when  deemed  recorded. 

Sec.  1170.     An   instrument   is   deemed   to   be   recorded  when,  being   duly 

acknowledged  or  proved,  and  certified,  it  is  deposited  in  the  recorder's  oflico 

with  the   proper  officer   for  record.      [Amendment,  approved  31trcli  30,  1874; 

Amendmenls  1873-4,  22G;  look  effect  July  1,  1874.] 

Tlie  timo  of  the  deposit  is  deemed  the  time  record,  the  latter  must  give  way  to  tlie  former, 

ofreconl:  JJonal'/  v.  /icals,  57  Ca,\.'^9d.    Wliere  unless    those   dealing    with    the    for.-mT    liad 

there  is  a  conflict  between  the  actual  record,  as  kuowleilL^e  of  the  latter:  Id. ;  and  see  /)0'<t,  sec. 

it  apjjears  in    tlie   record-book,   and    tlie  con-  1218. 

structive  reccrd  made  by  tlie  indorsement  on  R33ordins:  See,  for  a  general  consideration 

the  instrument  at  the  time  it  was  deposited  for  of  the  suljject,  sec.  1158,  and  note,  ante. 

1171.  Books  of  record. 

Sec  1171.  Grants  absolute  in  terms  are  to  be  recorded  in  one  set  of  books^ 
and  mortgages  in  another. 

1172.  Dutifs  of  recorder. 

Sec  1172.     The  duties  of  county  recorders,  in  respect  to  recording  instru- 
ments, are  prescribed  by  the  Political  Code. 
See  Pol.  Code,  sees.  4235  et  seq. 

213 


Title  IV,  Chap.  IV.]  RECORDING  TRANSFERS.  §§  1173-11S3 

1173.    Trana/er  of  vessek. 

Sec.  1173.  The  mode  of  recording  transfers  of  sLips  registered  under  the 
laws  of  the  United  States  is  regulated  hy  acts  of  congress. 

See  U.  S.  R.  S.,  sees.  4131  et  seq. 

ARTICLE  III. 

PROOF    AND    ACKNOWLEDGMENT    OF   INSTRUMENTS. 

1180.  i?!/  whom  acknowledgments  may  he  taken  in  this  state. 

Sec  1180.  The  proof  or  acknowledgment  of  an  instrument  may  be  made  at 
any  place  within  this  state  before  a  justice  or  clerk  of  the  supreme  court,  or 
judge  of  a  superior  court.  [Amendment,  approved  April  3,  1880;  Amendments 
1880,  2  {Ban.  ed.  IIG);  took  effect  immediately.] 

1181.  Same. 

Sec  1181.  The  proof  or  acknowledgment  of  an  instrument  may  be  made  in 
this  state  within  the  city,  city  and  county,  county,  or  district  for  which  the 
officer  was  elected  or  appointed  before  either: 

1.  A  clerk  of  a  court  of  record;  or, 

2.  A  county  recorder;  or, 

3.  A  notary  public;  or, 

4.  A  justice  of  the  peace.     [Amendment,  approved  April  3,  1880;  Amendments 

1880,  2  {Ban.  ed.  IIG);  took  effect  immedialehj.] 

Ackno-wledgmenta  vwitliin  the  district  of  25  Id.   175;  a  deputy  clerk:  Emmcd  v.  Wehh, 

the   oflicer. — A   county   clerk   may  t.-ke   ac-  30  Id.  197;  see  also  sec    1 1 S4,  ;;0s<. 

knovvledguicnts  although    he   has  no   seal:   lu  If  the  acknowledgment  is  made  in  tlie  county 

Gotdahy  V.  Jimn,  12Cal.5G4;  so  also  a  recorder:  of  the  c dicer,  it  is  immaterial  where  tlie  land 

HcpUiiti  V.  Ddaney,  8  Id.  85;  Midler  v.  Uojf/s,  lies:  Coltoii  v.  Searei/,  '22  Cal.  43G.     It  is  esscu- 

25  Id.   175;  a  justice  of  the  peace:   Collon   v.  tial,  however,  that  it  be  made  witliin  the  limits 

Seare/j,  22  Id.   41)0;   Kendall  v.   Miller,  9  Id.  of  his  jurisdiction:  Sliare  y.  Andi-r^on,  10  Am. 

691,  a  case  furnishing  an  exception  by  reason  Dec.  4:J1;  GaLhxjs  v.  Uall,  2  Id.  502.     Ifc  will 

of  the  statute,  where  tiie  deed  is  of  the  sepa-  bo  presumed,   iiowever,  tliat  the  aclmowdedg- 

rale  estate  of  a  married  woman :  GooJe  v.  Smith,  meut  was  taken  within  such  limits:  Bradley  v. 

13  Id.   81.     Deputies   may  take  acknowlcdg-  Wrst,   GO  Mo.   33;  Morrison  v.    ]Vhit<\   IG  La. 

meuts  as  a  deputy  recorder:  Muller  v.  Bogrji,  Ann.  100;  Dunlap  v.  Dowjlierty,  20  111.  397. 

1182.  Bii  whom  taken  without  the  state. 

Sec.  1182.  The  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  this  state,  but  within  the  United  States,  and  within  the  jurisdiction  of 
the  officer,  before  either: 

1.  A  justice,  judge,  or  clerk  of  any  coui't  of  record  of  the  United  States;  or, 

2.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  any  state;  or, 

3.  A  comuiissiouer  appointed  by  the  governor  of  this  state  for  that  purpose;  or, 

4.  A  notary  public;  or, 

5.  Any  other  officer  of  the  state  where  the  acknowledgment  is  made  author- 
ized by  its  laws  to  take  such  jji-oof  or  acknowledgment. 

AcknoTflTledgments   within    ths    United  has  been  held  not  .i-ithorized  to  take  acknowl- 

Statea. — By  the  act  of  April  IG,  1850,  a  cr-  edgmeuts  out  of  this  state:  Kimball  v.  Semple, 

titicato  taken  l.y  a  notaiy  iu  anotlier  state  was  25  Id.  440. 

Dot  a  sutlicient  acknowledgment  in  this:  Loril  The  word  "state"  iucludes  "territory:"  See 

V.  Sherman,  2  Cal.  498.     A  master  in  chancery  sec.  14,  subd.  12. 

1183.  Acknoicledgment,  by  whom  taken  toithoitt  United  States. 

Sec  1183.  The  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  the  United  States,  before  either: 

1.  A  minister,  commissioner,  or  charge  d'affaii*es  of  the  United  States,  resi- 
dent and  accredited  in  the  country  where  the  proof  or  acknowledgment  ia 
.made;  or, 

219 


S§11S4,  11S5 


ACQUISITION  OF  PROPERTY. 


[Div.  II,  Part  IV, 


2.  A  consul,  vice-consul,  or  consular  agent  of  the  United  States,  resident  in 
tlie  country  wliore  the  proof  or  acknowledgment  is  made;  or, 

8.  A  jutlye  of  a  court  of  record  of  the  country  where  the  proof  or  acknowl- 
edgment is  made;  or, 

4.  Cumniissioners  api^ointed  for  such  purposes  by  the  governor  of  the  state, 
pursuant  to  special  statutes;  or, 

5.  A  notary  public.  [Aineiichn>'nt,  approved  March  30,  1874;  Amendments 
1873-4,  227;  took  rffed  Juhj  1,  1874.] 

Aclinowl'Ddstnents  witliout  tho  United  agent  at  a  foreign  port  conlil  not  take  the 
States  may  bo  liiatL;  by  consul  of  the  Uin,.eil  acknowledgment  of  the  execuciou  of  a  deed  of 
States  of  any  giadc:  Molt  v.  Smith,  IG  Cal.  realty  in  this  state:  McAIiiin  v.  O'CoiDior,  27 
533.     Prior  to  January    1.5,    lSo9,    a   consular    Id.  238. 

1134.    Dt'puhj  can  take  acknowledrjment. 

Sec.  1184.  AVhen  any  of  the  officers  mentioned  in  the  four  preceding  sections 
are  authorizDd  by  law  to  appoint  a  deputy,  the  acknowledgment  or  proof  may 
be  taken  by  such  deputy,  in  the  name  of  his  principal. 

See  aide,  note  to  sec.  1181. 

11S5.    Bcq"  is  lies  for  avknoxcleclgments. 

Sec  1185.  The  acknowledgment  of  an  instrument  must  not  be  taken,  unless 
the  officer  taking  it  knows,  or  has  satisfactory  evidence,  on  the  oath  or  affirma- 
tion of  a  credible  witness,  that  the  person  making  such  acknowledgment  is  the 
individual  v*ho  is  described  in  and  who  executed  the  instrument;  or,  if  executed 
by  a  corporation,  that  the  person  making  such  acknowledgment  is  the  president 
or  secretary  of  such  corporation. 


Aclinowled^msnts. — The  object  of  an  ae- 
knowlcd  ,nieiit  is  twofold:  to  entitle  the  in- 
Btrumeut  to  be  nsed  as  evidence  without  further 
proof,  and  to  enable  it  to  be  recorded:  Fojarly 
V.  Fiiilai,  10  Cal.  2.19.  As  between  the  parties, 
a  deed  is  good  akhou  ,'h  not  a'-knowledgcd: 
JIa-stiiiijM  V.  Vaiuj/iii,  5  Id.  31.5;  Good>'iioujh.  v. 
Warn  II,  5  iSaw.  434;  Jackson  v.  Allen,  30  Ark. 
110;  Hill  V.  Saiiiuct,  21  Miss.  307;  McMahoii 
V.  IJ.-Grair,  2'j  Wis.  Gl  1.    When  acknowledged, 

a  deed  may  be  nsed  in  evidence  without;  further  oilicer  to  be  the  person  executing  the  same: 
proof:  Fo(iarli/  w  Fiiilai/,  supra;  Chirk  V.  Tro'i,  Krlsey  v.  Uunlap,  7  Id.  ICO.  If  it  state  that 
20  II.  210;  Laudrrs  v.  BjUoii,  23  Id.  405;  the  person  was  proved  to  Ije  tlie  nia';er,  the 
llinchiiff  y.  JJiumtii,  IS  Wis.  13j;  Hutchison  ccrtiacate  should  also  recite  that  it  was  proved 
V.  lhi-4,  2  Gratt.  304;  Samuels  v.   Uorrowsca'i',     on   tlie   oath   of  a  witness.  .aivi:ig  his  name: 


ment  and  form  of  the  certificate  is  all  that  is 
necessary:  Henderson  v.  Gretcell,  8  Cal.  581; 
Wells  V.  Alkinson,  24  Minn.  IGl;  Dorn  v.  Best^ 
15  Tex.  02;  Monroe  v.  Arledrje,  23  Id.  478; 
Wise  v.  Posllewait,  3  W.  Va.  4j2.  For  exam- 
ple, a  certiiicate  reciting  that  the  parties  "were 
known  t>)  him,"  omitting  the  word  "  person- 
ally," is  good:  Hopkins  v.  Vi'lancy,  3  Cal.  85. 
Tiie  certi.icate  should  state  that  the  maker  of 
the  deed  is  either  known  t  >  or  proved  to  the 


104  Mais.  207;  Carpenter  v.  Dexter,  8  Wall. 
532;  althougl)  in  so:ne  states  the  rule  see.ris 
to  be  oLlierwisc:  2  Greeul.  iiv.,  sec.  230.  As 
to  the  necessity  of  a  proper  acknowledgment  in 
order  to  entitle  the  instrument  to  be  recorded, 
Bee  supra,  .sec.  11.53,  and  note. 

Th.0  corcOiatD  i3  conclusive  as  to  all 
matters  t.)  which  it  is  the  duty  of  the  oScer  to 
certify  where  lio.ia  Jiile  purchasers  for  value 


Kimball,  v.  Sempte,  25  Id.  410;  JTrMinn  v. 
O'Connor,  27  Id.  238;  Fo-jarfif  v.  Fudaij,  10 
Id.  239.  Tlie  following  certiiicate  was  held 
bid,  the  omission  being  of  such  a  character  as 
to  admit  of  the  substitution  of  a  wor  I  that 
would  not  comply  witli  the  statute:  "  Before 
me,  etc.,  personally  appeared  A.  B.  C,  to  be 
the  individual  described  in,  aad  wlio  exe- 
cuted." etc.:     Il'oy  V.    Flmj  irljf,   G   Id.    224. 


are  coaeerued,  l)at  prima  facie  evidence  only     And  see  Talburt  v.  Stewart,  30  Id.   G02,  fi^r 


between  the  parlies,  and  open  to  rebuttal  on 
the  ground  of  frauil  or  imposition:  2  Wliart. 
on  Ev.,  sec.  10.52;  Martindale  on  Conveyanc- 
ing, sec.  2o3.  Tiie  presumjition  is  that  the 
certiiicate  states  the  fact:  Baldwin  v.  Born- 
heimer,  43  C.d.  4.33;  see  also  <ira  t  v.  While,  57 
Id.  141;  I)e  Arifuz  v.  Escandm,  59  Id.  433. 

Aclinovvlcd^ments  of  married  women: 
8ee  ntxt  s.'ction. 

Suli:;:e:ijy  of  certiQoate  of  aclino'wl- 
edsra3at3.  — Fur  t'ae  forms  of  eertiiicates  of 
acknowledgments,  see  the  succee  ling  sections 
of  tliis  article.  As  a  general  rale,  it  is  suai- 
cient  that  a  subsiantiai  compliance  with  the 
statutory  requireuieuts  as  to  the  acknov/ledg- 


suiiicient  recital  of  acquiintaneo  with  the  at- 
toraey  in  fact,  executing  t!ie  deed. 

Tlie  o.2olal  cliaracter  of  the  certifying 
officer  shouhl  appe:ir  fro'n  tiie  ccrtiheaie:  Cos- 
sell  V.  Cook?,  11  Am.  Dec.  GIO;  Johnson  v. 
lla'nfs,  15  11.  533;  sec.  11S8,  pod,  an  1  note. 

Tae  fnct  that  the  acliaDwlDd^meut  was 
made  ought  to  be  stated:  Bryan  v.  li  imirez, 
8  Cal.  401;  Henderson  v.  Orrwetl,  Id.  531; 
Stanton  V.  Button,  2 Conn.  527;  S'lort  v.  Conlee, 
2i  111.  219;  D'ioey  v.  Campnn,  4  Mich.  5G5;  (7a- 
bcl'  V.  Grnbbs,  48  Mo.  353;  and  see  the  note  to 
Lirin;fst  III  v.  Kettelle,  41  Am.  Dec.  177. 

Gl^i^iii^  and  sealing;. — The  signature,  fol- 
lowed by  the  name  of  the  olQce  and  the  seal 


220 


Title  IV,  Chap.  IV.] 


RECORDING  TRANSFERS. 


§§  IISG,  1187 


of  the  certifying  officer,  when  required  hy  the 
laws  of  tlie  country  where  the  acknow.edg- 
ment  ia  taken,  must  be  allJxed  to  the  certili- 
cate:  See  sec.  IWS,  posl;  Proffatt  on  Notaries, 
Bee.  38;  llast'inqn  v.  Vaui/hi>,  5  Cai.  31.');  LUlle 
V.  Dotliie,  3-2  Ark.  iolh' Ballard  v.  Pcrr;/,  28 
Tex.  347;  Buell  v.  Irwin,  24  Mich.  145;  Ti'xas 
Land  Co.  V.  Williums,  r>l  Tex.  51.  Unless 
required  liy  express  statute,  the  seal  is  not 
essential  to  the  validity  of  even  a  notary  or 
commissioner  of  deeds:  Poivers  v.  Bri/ajit,  7 
Port.  0;  Harrison  v.  Simonfi,  55  Ala.  510;  Irv- 
inif  V.  Broivudl,  1 1  111.  402;  Thompson  v.  Rob- 
trison,  9  B.  Won.  383;  Thompson  v.  J'Jorgan,  6 


Minn.  292.  A  certificate  executed  by  a  deputy 
clerk  with  the  seal  of  the  court  atfixed  is  yood: 
Tuuihiird  V.  Crow,  20  Cal.  150.  As  to  the 
suiiiciency  of  a  certificate  over  a  private  seal, 
see  Stark  v.  Barrett,  15  liL  3G1;  Fo'jarty  v. 
Saw'in;  23  Id.  570. 

Aclmowlodsnisnt  of  deeds,  •whsu  fatal- 
ly dof  3  otivo  aud  V7liea  not. — For  n  careful 
consideration  of  the  (iiiestions  suggested  by 
tliis  subject,  including  those  touched  upon 
above  and  many  others,  see  the  note  to  LiV' 
iu'iston  V.  KfiteUc,  41  Am.  Dec.  103. 

Correcting  certiucat©:  See  sec.  1202,  poat^ 
and  note. 


1186.    Acknowledgment  by  married  women. 

Stc.  118G,  The  acknowledgment  of  a  marriecl  woman  to  an  instrument  pur- 
porting to  be  executed  by  her  must  notba  taken,  unless  she  is  made  acquainted 
by  the  officer  with  the  contents  of  the  instiniment  on  an  examination  without 
the  hearing  of  her  husband;  nor  certified,  unless  she  thereupon  acknowledges 
to  the  officer  that  she  executed  the  instrument,  and  that  she  does  not  wish  to 
retract  such  execution. 


Acknowlsdsments  by  married  ■women. 
A  married  woman's  acknowledgment  is  bome- 
thing  more  than  a  mere  authentication  of  her 
deed.  And  bet'ure  the  code  the  ccrtiiicato  was 
also  a  part  of  her  deed.  "The  certilicate  is 
absolutely  essential  to  the  deed,  and  is  a  ma- 
terial part  thereof:"  Lconis  v.  Lazzurovich,  55 
Cal.  50;  Mariner  y.  Saiindcr,5Gihu.  I2i>;  JIartin 
V.  JJwi'U;/,  21  Am.  Dec.  245;  Mason  v.  Brock, 
12  111.  270.  Diit  under  the  code  the  certificate 
is  not  an  essential  part  of  a  married  woman's 
deed:  Wi'dd  v.  Herman,  59  Cal.  507.  The 
acknowledgment  is  a  part  of  the  execution :  Id.; 
Joseph  V.  jJouijherty,  CO  Id.  3CS;  Bank  of 
IJpaldsbnrij  v.  Bailhnce,  3  Vv'est  Coast  Rep.  140. 
And  iin  acknowledgment  by  a  married  woman 
a3  thougli  a,  feme  sole  vitiates  the  dee  1:  Durfee 
Garveij,  3  Id.  350.  It  was  therefore  even  more 
essential  i.i  the  ciiso  of  a  married  woman  than 
of  others  thr.t  the  certilicate  sliould  slio'.v  a 
com|iliaucc  with  the  statute:  Landers  v.  Bi.lton, 
20  Cal.  408;  Ewald  v.  Cohbett,  32  Id.  493; 
Mams'U,  V.  Kern,  57  Mo.  478;  Deii<jenh<iit  v. 
Craera/t,  30  Id.  549;  Fribble  v.  1 1  nil,  13  Bush, 
61.  But  the  very  letter  of  the  .'statute  need  not 
be  followed;  a  substantial  conformity  to  the 
requirements  is  sulficient:  Code  v.  Smith,  13 
Cai.  81 ;  Tubbs  v.  Catewood,  20  Ark.  128;  Little 
V.  Dod'i'',  32  Id.  453;  Allen  v.  Lenoir,  53  Id. 
321;   'I'hnyer  v.  Tarrey,  37  N.  J.  L.  339. 

The  identity  of  the  woman  must  appear  the 
Banic  as  tiiou'.di  she  were  nui  jnris:  Ooce  v. 
Ciither,  23  III." 034;  Lindley  v.  Smith,  40  Id. 
52;);  Heynolds  v.  Kingsbury,  15  Iowa,  238; 
Gamier  w  Barry,  28  Mo.  438. 


The  fact  of  a  private  examination,  without 
the  hearing  of  the  husband,  and  that  the  wife 
was  made  acquainted  with  the  contents  of  the  in- 
strument, must  also  appear  from  the  certiiicate: 
See  sec.  1191,  infra;  McLeran  v.  Benton,  43 
Cal.  407;  Pease  v.  Barbiers,  10  Id.  4.30;  Kendall 
v.  Miller,  9  Id.  591 ;  Sti/lwe'l  v.  Adams,  2.)  Ark. 
340;  Hartley  v.  Ferrell,  9  Fla.  374;  Trustees  v. 
Davidson.  05  111.  124;  Ld<jerton  v.  Jones,  10 
Minn.  427;  Willis  v.  Gattman,  53  Miss.  721; 
Bice  V.  Peacock,  37  Tex.  392;  Lmyldln  v. 
Fream,  14  \V.  Va.  322.  Parol  evidence  is  not 
admissible  to  supply  the  defect:  Elliott  v. 
Peirsol,  1  Pet.  328;  J  J  arty  v.  Laid,  3  Or.  353; 
Jonrilan  v.  Jour  Ian,  11  Am.  Dec.  724. 

Before  the  codes,  it  was  suliicient  for  the 
certilicate  to  recite  that  the  wile  was  made  ac- 
quainted with  the  contents  of  the  instrument, 
without  stating  that  this  was  done  by  tlie  certi- 
fying o'.ficer:  Jansen  v.  MciJahill,  22  Cal.  503; 
Fnnch  Bank  v.  Beard,  54  Id.  480. 

The  aiatemeut  that  the  wife  does  not  wish  to 
retract  is  an  essential  part  of  the  acknowledg- 
ment: Landers  v.  Ballon,  20  C:d.  408;  Chauvin 
V.  U'ar/ner,  18  Mo.  531;  Le  Bonrijeoise  v.  Mc- 
Namara,  5  jNIo.  App.  570;  Bateman's  Petition, 
II  1>.  I.  585;  Grove  v.  Zambro,  14  Cratt.  501; 
Linn  v.  Pat  ton,  10  W.  Va.  187;  Belcher  v. 
Weaver.  40  Tex.  293. 

For  a  further  consideration  of  a  married 
woman's  acknowledgment,  sec  the  note  to 
Livinf/ston  v.  KHtelle,  41  Am.  Dec.  179  ct  seq. 

Correotiiis  married  •woman's  certi5cato 
of  asknow^ied^ment:  See  note  to  sec.  1202, 
po6t. 


U87.    Same. 

Sec.  1187.  A  conveyance  by  a  married  woman  has  the  same  effect  as  if  she 
were  unmarried,  and  may  be  acknowledged  in  the  same  manner,  except  as  men- 
tioned in  the  last  section;  but  such  conveyance  has  no  validity  until  so  ackuowl- 
edffed. 


Conveyance  by  married  v7oman. — A 
married  woman  may  convey  her  separate  prop- 
erty witiiout  lier  husband's  consent:  Sec.  1C2, 
ante.  But  no  estate  in  her  real  property  passes 
unless  the  grant  is  executed  in  the  manner  pre- 
icribed  by  sections  1180  and  1191:    See  sec. 


1093.  The  disabilities  of  a  married  woman 
existing  at  common  law  are  so  far  removed  that 
she  may  do  such  acts  as  tlic  law  allows,  biit 
only  in  the  manner  directed  by  the  law.  The 
acknov.dcdgmont  of  an  instrument  conveying 
her  realty  is  made  by  the  code  an  essential  ele- 


221 


1188-1190 


ACQUISITION  OF  PROrERTY. 


[Div.  II,  Part  IV, 


ment  of  the  conveyance,  and  must  be  in  the 
manner  regulated  \>y  th(3  code:  See  the  lust 
part  of  note  to  sec.  118G.  There  is  but  one 
mode  by  wliich  a  married  woman  can  convey 
her  separate  estate,  and  tiiat  is  prescribed  by 
statute:  Leonls  v.  Lazzarovirh,  5")  Cal.  52. 

If  the  certificate  of  aclcnowledgment  is  insuffi- 
cient, the  conveyance  is  absolutely  void:  Lrouis 
V.  Lazzarovirh,  sujira;  Smith  v.  Green,  31  Id. 
477;  Lander  v.  IJolton,  2G  Id.  393;  T<'r>y  v. 
Ilammonil,  47  Id.  32;  McLeran  v.  Bolton,  43 
Id.  4G7;  Ewald  v.  Corbett,  32  Id.  493;  Maclay 
v.  Love,  23  Id.  374;  Camden  v.  Va'de,  23  Id. 
633;  Morrison  v.  IVllson,  13  Id.  498.  This  is 
not  the  law  uuder  the  coile.  The  certificate  of 
acknowledi;munt  is  now  not  an  essential  part  of 
a  married  woman's  conveyance:  Wedtd  v.  Her- 
man, 59  Cal.  507,  where  the  matter  is  fully  dis- 
cussed. 

An  important  decision  was  rendered  in  Reis 
v.  Lawrence,  11  Pac.  C.  L.  J.  6,  turning  upon 
the  validity  of  a  conveyance  by  a  woman  whose 
certificate  of  acknowledgment  w.is  not  in  tlie 
form  required  in  the  case  of  married  women. 
The  woman  had  been  married,  had  sought  to 
obtain,  and  did  obtain,  a  decree  of  divorce  prior 
to  the  execution  of  the  instrument  in  question, 
which  decree  proved  to  be  void.  The  woman, 
at  the  time  she  executed  the  instrument, 
believed  hcrscdf  to  be  divorced,  so  reiiresented 
generally,  and  assumed  her  maiden  name.  As 
such  fevie  fiole  she  executed  the  instrument  in 
controversy,  and  the  court  held  that  she  was 


bound  thereby.  The  particular  objection  to 
the  eertiticate  was  that  it  did  not  recite  that 
she  was  examined  "without  the  bearing  of  the 
husband."  But  the  court  replied  that  the 
reason  for  such  requirement  was  Mantiiig  in 
the  case  before  them,  as  it  appeared  from  the 
petition  in  the  divorce  proceedings  that  the  par- 
ties had  been  living  apart  for  several  monthii 
prior  to  the  acknowledgment.  Two  of  the  jus- 
tices. McKee  and  Thornton,  JJ.,  dissented. 

Married  women's  estoppel:  See  the  dis- 
cussion in  the  dissenting  opinion  of  Judge 
McKee  in  lids  v.  Lawrence,  11  Pac.  C.  L. 
J.  0;  Morrison  v.  WiUon,  13  Cal.  498;  Bige- 
low  on  Estoppel,  277,  510.  "  The  tendency  of 
modern  authority,  however,  is  strongly  toward 
the  enforcement  of  tlie  [equitable]  estoppel 
against  married  women  as  against  jiersons  sui 
jnrU,  with  little  or  no  limitation  on  account  of 
their  disability.  This  is  plainly  so  in  states 
where  the  legislation  has  freed  their  property 
from  all  interest  or  control  of  their  husbands, 
and  has  clothed  them  with  partial  or  complete 
capacity  to  deal  with  it  as  though  they  were 
single:  2  Pomeroy's  Eq.  Jur.,  .sec.  814. 

An  acknowledgment  is  not  avoided  l)y  the  fact 
tliat  the  promises  which  induced  the  wife  to 
make  it  were  not  fulfilled:  Conn.  L.  Ins.  Co.  v. 
M,-<  •ormick,  45  Cal.  580. 

Tlie  statute  of  1855,  p.  12,  concerning  the 
conveyance  of  the  separate  estate  of  a  woman 
whose  husband  is  a  non-resident,  is  explained 
in  Salmon  v.  ]Vilson,  41  Cal.  595. 


1188.    Certificale  to  be  indorsed  on  acknoivledgment. 

Sec.  1188.  An  officer  taking  the  acknowledgment  of  an  instrument  must 
indorse  thereon,  or  attach  thereto,  a  certificate  substantially  in  the  forms  here- 
inafter presci-ibed.  [Amendment,  approved  March  30, 1874;  Amendments  1873-4, 
227;  took  effect  July  1,  1874.] 


Proof  of  oJH^ial  charaoter.— The  certifi- 
cate is  prim'i  facie  evidence  of  the  olficial 
character  of  the  jierson  who  gives  it:  Mott  v. 
Smith,  IG  Cal.  .'■>.33;  see  Code  Civ.  Proc,  sec. 
19G3;  Carpmtrrv.  Dexter,  8  Wall.  513;  Thomp- 
son \.  Morgan,  G  Minn.  202;  Harlinrj  v.  Cur- 
til,  45  111.  252;  Thnrman  v.  Cameron,  24 
Wend.   87.     Where    the   certificate   is    taken 


without  the  state  by  a  commissioner  appointed 
by  tlie  governor  thereof,  tlie  seal  of  the  com- 
missioner is  sufHcient  iiroof  of  his  authority: 
Sjiilh  V.  Van  Gilder,  2G  Ark.  527;  Vance  v. 
Srhnyler,  1  Gilm.  IGO;  Thompson  v.  Sihuylerf 
2  Id.  271;  Irving  v.  Brownellf  11  Id.  402. 
See  post,  sec.  1193. 


1189.  General  form  of  certificate. 

Sec.  1189.     The  certificate  of  acknowledgment,  unless  it  is  otherwise  in  this 
article  provided,  must  be  substantially  in  the  following  form: 

State  of ,  ) 

County  of .  j 

On  this day  of ,  in  the  year ,  before  me  [here  insert  the  name 

and  quality  of  the  officer],  personally  appeared ,  known  to  me  [or  proved 

to  me  on  the  oath  of ]  to  be  the  person  whose  name  is  subscribed  to  the 

within  instrument,  and  acknowledged  to  me  that  he  [or  they]  executed  the 
same. 

1190.  Form  of  acknowledgment  by  corporation. 

Sec.  1190.     The  certificate  of  acknowledgment  of  an  instrument  executed  by 
a  corporation  must  be  substantially  in  the  following  form: 

State  of ,  ] 

County  of .  j  ^^• 

On  this day  of ,  in  the  year  of ,  before  me  [here  insert  the  name 

and  quality  of  the  officer  ],  personally  appeared ,  known  to  mo  [or  proved 

222 


Title  IV,  Chap,  rv.]  RECORDING  TRANSFERS.  §§1191-1195 

to  me  on  the  oath  of ]  to  be  the  president  [or  the  secretary]  of  the  corpora- 
tion that  executed  the  within  instrument,  and  acknowledged  to  me  that  such 
corporation  executed  the  same. 

1191.  Form  of  certificate  of  acknowledgment  by  married  women. 

Sec.  1191.     The  certificate  of  acknowledgment  by  a  married  woman  must  be 
substantially  in  the  following  form: 

State  of ,  )  ^^^ 

County  of .  ) 

On  this day  of ,  in  the  year ,  before  me  [here  insert  the  name 

and  quality  of  the  officer],  personally  appeared ,  known  to  me  [or  proved  to 

me  on  the  oath  of ]  to  be  the  person  whose  name  is  subscribed  to  the  within 

instrument,  described  as  a  married  woman;  and  upon  an  examination  without 
the  hearing  of  her  husband  I  made  her  acquainted  with  the  contents  of  the 
instrument,  and  thereupon  she  acknowledged  to  me  that  she  executed  the  same, 
and  that  she  does  not  wish  to  retract  such  execution. 

Married  woman's  certificate  of  acknovyl-     1 1 87,  generally.     For  a  sufficient  certificate  nn- 
edgment. — That  the  certificate  is  not  jiart  of     der  the  twenty-third  section  of  tlie  act  of  April 
a  married  woman's  deed  under  the  code,  see     G,  1850,  see  Muir  v.  Galloway,  Gl  Cal.  498. 
Wedel  V.  Herman,  59  Cal.  507.     See  sees.  1186, 

1192.  Form  of  certificate  of  acknowledgment  bij  attorney  in  fact. 

Sec.  1102.     The  certificate  of  acknowledgment  by  an  attorney  in  fact  must 
be  substantially  in  the  following  form: 
State  of , 


County  of 


[•  ss. 


On  this day  of ,  in  the  year ,  before  me  [here  insert  the  name 

and  quiilifcy  of  the  officer],  personally  appeared ,  known  to  me  [or  proved  to 

me  on  the  oath  of ]  to  be  the  person  whose  name  is  subscribed  to  the  within 

instrument  as  the  attorney  in  fact  of ,  and  acknowledged  to  me  that  he 

subscribed  the  name  of thereto  as  principal,  and  his  own  name  as  attorney 

in  fact. 

1193.  Officers  must  affix  their  signatures. 

Sec.  11 1)3.  Officers  taking  and  certifying  acknowledgments  or  proof  of  instru- 
ments for  record  must  authenticate  their  certificates  by  affixing  thereto  their 
signatures,  followed  by  the  names  of  their  offices;  also,  their  seals  of  office,  if 
by  the  laws  of  the  state  or  country  where  the  acknowledgment  or  proof  is  taken , 
or  by  authority  of  which  they  are  acting,  they  are  required  to  have  official 
seals. 

See  the  notes  to  previous  sections  of  this  article;  and  note  to  Livingston  v.  Kettelle,  41  Am. 
Dec.  170,  173. 

1194.  Certificate  of  authority  of  justices  in  certain  cases. 

Sec  1194.  The  certificate  of  proof  or  acknowledgment,  if  made  before  a  jus- 
tice of  the  peace,  when  used  in  any  county  other  than  that  in  which  he  resides, 
must  be  accompanied  by  a  certificate  under  the  hand  and  seal  of  the  clerk  of 
the  county  in  which  the  justice  resides,  setting  forth  that  such  justice,  at  the 
time  of  taking  such  proof  or  acknowledgmeiit,  was  authorized  to  take  the  same, 
and  that  the  clerk  is  acquainted  with  his  handwriting,  and  believes  that  the 
signature  to  the  original  certificate  is  genuine. 

1195.  Proof  of  execution,  how  made. 

Sec  1195.     Proof  of  the  execution  of  an  instrument,  when  not  acknowledged, 
may  be  made  either: 
1.  By  the  party  executing  it,  or  either  of  them;  or, 

223 


§§  1196-1200  ACQUISITION  OF  PROPERTY.  [T>iv.  ii,  tAtitiv, 

2.  By  a  subscribing  witness;  or, 

3.  By  other  witnesses,  iu  cases  montioned  in  section  eleven  hundred  and 
ninety-eight. 

1196.  Wifness  m-ufit  be  peraonalhj  known  to  officer. 

Skc.  119G.  If  by  a  subscribing  witness,  such  witness  must  be  personally 
known  to  the  officer  taking  the  proof  to  be  the  person  whose  name  is  subscribed 
to  the  instrument  as  a  witness,  or  must  be  proved  to  be  such  by  the  oath  of  a 
credible  witness. 

1197.  Wilncss  must  prove  what. 

Sec.  1197.  The  subscribing  witness  raiist  prove  that  the  person  whose  name 
is  subscribed  to  the  instrument  as  a  party  is  the  person  described  in  it,  and  that 
such  pei'son  executed  it,  and  that  the  witness  subscribed  his  name  thereto  as  a 
witness. 

11S8.    Hand  writing  may  he  proved,  when. 

Sec.  1198.  The  execution  of  an  instrument  may  be  established  by  proof  of 
the  handwriting  of  the  j)arty  and  of  a  subscribing  witness,  if  there  is  one,  iu 
the  following  cases: 

1.  "When  the  parties  and  all  the  subscribing  witnesses  are  dead;  or, 

2.  When  the  parties  and  all  the  subscribing  Avitnesses  are  non-residents  of 
the  state;  or, 

3.  "When  the  place  of  their  residence  is  unknown  to  the  party  desiring  the 
proof,  and  cannot  be  ascertained  by  the  exercise  of  due  diligence;  or, 

4.  When  the  subscribing  witness  conceals  himself,  or  cannot  be  found  by  th« 
officer  by  the  exercise  of  due  diligence  iu  attempting  to  serve  the  subpoena  or 
attachment;  or, 

5.  In  case  of  the  continued  failure  or  refusal  of  the  witness  to  testify,  for  the 
space  of  one  hour,  after  his  appearance. 

1199.  Evidence  of  handwriting  must  prove  what. 

Sec.  1199.  The  evidence  taken  under  the  preceding  section  must  satisfac- 
torily prove  to  the  officer  the  following  facts: 

1.  The  existence  of  one  or  more  of  the  conditions  mentioned  therein;  and, 

2.  That  the  witness  testifying  knew  the  person  whose  name  purports  to  be 
subscribed  to  the  instrument  as  a  party,  and  is  well  acquainted  with  his  signa- 
ture, and  that  it  is  genuine;  and, 

3.  That  the  witness  testifying  personally  knew  the  person  who  subscribed  the 
instrument  as  a  witness,  and  is  well  acquainted  with  his  signature,  and  that  it 
is  genuine;  and, 

4.  The  place  of  residence  of  the  witness.  [Amendment,  approved  March  30, 
1874;  Amendtnenls  1873-4,  227;  look  effect  JuJj  1,  1874.] 

Proving  haudwriting,  generally:  See  Code  Civ.  Proo.,  sees.  1315,  1943-1946. 

1200.  Certificate  of  proof. 

Sec.  1200.  An  officer  taking  proof  of  the  pxecution  of  any  instrument  must, 
in  his  certificate  indorsed  thereon  or  attached  thereto,  set  forth  all  the  matters 
required  by  law  to  be  done  or  known  by  him,  or  proved  before  him  on  the  pro- 
ceeding, together  with  the  names  of  all  the  witnesses  examined  before  him, 
their  places  of  residence  respectively,  and  the  substance  of  their  testimony. 

O3ioer'3  certiiicate,  and  effect  of  coin|>li-  "  No  particular  form  is  necessary.  If  to  a 
ance  with  the  prescribed  f.)rnn:  See  the  notes  cftrtiac.ite  of  proof  by  a  subscribing  witness  of 
to  preceding  sections  of  this  article.  the  e.xecution  of  a  deed  the  witness  adds  Ida 

224 


Title  IV,  Chap.  IV.]  RECORDING  TRAKSFERS.  §§  1201-1-205 

signature,  and  the  officer  adds  the  usual  jurat  stantial  compliance  with  the  statute:  W/nl^ 
to  an  affitlavit,  such  additions  do  not  vitiate  wy  v.  Arnold,  10  Cal.  531:"  Conimi.-ssioDers* 
the  certitioate,  if  without  them  it  shows  a  suh-     note. 

12C1.    Officers  authorized  /o  do  certain  things. 

Sec.  1201.  Officers  authorized  to  take  the  proof  of  instruments  ar'e  authorized, 
in  such  proceedings: 

1.  To  administer  oaths  or  affirmations,  as  prescribed  in  section  twenty  hun- 
dred and  ninety-three,  Code  of  Civil  Procedure; 

2.  To  employ  and  swear  interpreters; 

3.  To  i.-suG  subpoena,  as  prescribed  in  section  nineteen  hundred  and  eighty- 
six,  Code  of  Civil  Procedure; 

4.  To  punish  for  contempt,  as  prescribed  in  sections  nineteen  hundred  and 
ninety-one,  nineteen  hundred  and  ninety-three,  nineteen  hundred  and  ninety- 
four,  Code  of  Civil  Procedure. 

The  civil  damages  and  forfeiture  to  the  party  aggrieved  are  prescribed  in  sec- 
tion nineteen  hundred  and  ninety-two,  Code  of  Civil  Procedure. 

1202.  When  instrument  improperly  certified, party  may  have  action  to  correct  error. 
Sec.  1202.     When  the  acknowledgment  or  proof   of   the   execution    of   an 

instrument  is  properly  made,  but  defectively  certified,  any  party  interested  may 
have  an  action  in  the  district  court  to  obtain  a  judgment  correcting  the  cer-^ 

tificate. 

Correcting  d"f3CtivQ  certificates.  —As  to  snprn.     As  to  tlie  power  of  a  court  of  equity 

the  ollicci's  1- g'lt  to  amend  his  certiGcate,  see  tu  perfect  a  defectively  acknowledged  coiivcj'- 

Martiudalo  on  Conveyancing,  sec.  2G4;  Liv^nfj-  ance  by  a  married  woman,  see  the  n  itu  to  Ticr- 

8to:iv.  KeUellc,  41  Am.  Dec.  IS4:,  in  note;  Wcclel  nan  w  PooVf   19  Am.  Dec.  2liO.     Ejuity  will 

V.  //erma's  . "59  Cal.  507.    Parol  evidence  to  sup-  not  reform   the  imperfect  deed  of  a  inarried. 

pnr-t   or  impeach    acknowledgment:  Smitli   v.  woman:  Lfonin  v.  Lazznrrvuli,  55  Oil.  52.    But 

W  ril,  1  Am.  Dec.  81,  and  note.  in  Wcdel  v.  JJermati,  59  LI.  507,  tliis  case  was 

Married  woman's  defective  certificate  explained,  and  it  was  there  determined  that  ^ 

could  not  he  eon-ucted  prior  to  the  code:  .^V/o-  defecti%'e  certificate  of  acknowledgment  by  a 

ver  v.  A.  R.  Commerc'ial  Co.,  7  Cal.  200;  Bar-  married  Avoman  might  be  reformed  in  eijuity; 

rett  V.  Ti-wkshurij,  9  Id.   13;  Jtidson  v.  Poriir,  that  under  the  code  a/'^Wf  cowrC'a  "eertilicata 

53  Id.  482.     Nor  after  the  code  can  a  defective  of  acknowledgment  ia  not  an  essential  part  ot 

certificaLe  of  acknowledgment,  executed  before  her  conveyance." 
the   code,    be    corrected:    Judson    v.    Porter, 

1203.  Action  to  obtain  judgment  of  proof  of  an  instrument. 

Sec.  1203.  Any  person  interested  under  an  instrument  entitled  to  be  provecl 
for  record  ma}'  institute  an  action  in  the  district  court  against  the  proper  j:)artie3 
to  obtain  a  judgment  proving  such  instrument. 

1204.  Effect  of  judgment  in  such  action. 

Sec.  1204.  A  certified  copy  of  the  judgment  in  a  proceeding  instituted  under 
either  of  the  two  preceding  sections,  showing  the  proof  of  the  instrument,  and 
attached  thereto,  entitles  such  instrument  to  record,  with  like  effect  as  if 
acknowledged. 

1205.  Conveyances  heretofore  made  to  be  governed  by  then  existing  laws. 

Sec.  1205.     The  legality  of  the  execution,  acknowledgment,  proof,  form,  on' 

record  of  any  conveyance  or  other  instrument  made  before  thi^j  code  goes  into 

effect,  executed,  acknowledged,  proved,  or  recorded  is  not  affected  by  anything* 

contained  in  this  chapter,  but  depends  for  its  validity  and  legality  upon  thd 

laws  in  force  when  the  act  was  performed. 

"  By  its  terms  tliia  section  provides  that  the  the   act  was  performed.     It  is  impossible   to 

legality  of  the  execution  of  an  instrument  made  construe  this  section  l)nt  as  declaring  that  no 

before  the  code  shall  not  be  affected  by  any-  jiart  of   the  cliapter  should   be   held   /iropriv 

thing  coiitaine.l    in    sections    1202    and   1203,  ivV/ore  to  validate  an  execution  invalid  when  it 

but  must  depend  upon  the  laws  iu  force  when,  was  attempted;  and  section  1205  (which  rcfera 

Civ.  Code— 13  225 


IS  1206-1214  ACQtnSITION  OF  PROPERTY.  [Div.  II,  Part  IV, 

to  the  whole  chapter)  cnn  have  no  application  'the  legality  depends  upon  the  laws  then  in 

to  sections  1232  an^.l  120iJ,  unl^jsa  its  elloct  is  to  force,'  are  very  broad  when  applied  to  tlie  ex- 

proiiiliit  any  proceedin,'  umler  those  sections  eciitioa  of  an  instrument:"  McKiiistry,  J.,  ou 

to  nialie  good  a  defective  execiitijn  of  an  in-  behalf  of  the  court,  in  t/«t/so«  v. /^orier,  53  Cal. 

Btrument  attem;!tcd   prior  to    the   code.     The  482, 
expressions  'the  legality  is  not  affected,'  and 

1206.  Recording,  and  as  evidence,  to  he  governed  by  then  existing  laws. 

Si:c.  120G.  All  couvejances  of  real  property  made  before  this  code  goes  into 
effect,  and  acknowledged  or  proved  according'  to  the  laws  in  force  at  the  time 
of  such  making  and  acknowledgment  or  proof,  have  the  same  force  as  evidence, 
and  may  be  recorded  in  the  same  manner  and  with  the  like  effect  as  convey- 
ances executed  and  acknowledged  in  pursuance  of  this  chapter. 

1207.  Bf^cord  as  notice — Certified  copies  as  evidence. 

Sec.  1207.     Any  instrument  affecting  real  property,  which  was,  previous  to 

the  thirtieth  day  of  January,  one  thousand  eight  hundred  and  seventy-three, 

copied  into  the  proper  book  of  record,  kept  in  the  office  of  any  county  recorder, 

shall  be  deemed  to  impart,  after  that  date,  notice  of  its  contents  to  subsequent 

purchasers  and  incumbi'ancers,  notwithstanding  any  defect,  omission,  or  infor- 

rfnality  in  the  execution  of  the  instrument,  or  in  the  certificate  of  acknowledg- 

ment  thereof,  or  the  absence  of  any  such  certificate;   but  nothing  herein  shall 

llo3  deemed  to  affect  the  rights  of  purchasers  or  incumbrancers  previous  to  that 

.  date.     Duly  certified  copies  of  the  record  of  any  such  instrument  may  be  read 

>ia  evidenee,  with  like  effect  as  copies  of  an  instrument  duly  acknowledged  and 

1  recorded,  provided  it  be  first  shown  that  the  original  instrument  was  genuine. 

I  [New  flection,  approved  March  30,  1874;   Amendnienls  1873-4,  228;    took  effect 

.July  I,  1874.] 

C3rtiS3d  copies  of  records  need  not  tran-     tificate  reciting  the  afSxing  of  the  seal:  Jones 
tscribe  tlie  seal  to  the  ackaowledgmeut,  the  cer-     v.  Martiii,  16  Cal.  165. 

AETICLE  IV. 

EFFrCT  OF   ItECOKDING,    OR   TUE   WANT   THEREOF. 

'"The  provisions  of  the  various  statutes  con-     corded,  have  been  placed  and  may  be  found  in 
cerni^^;  conveyances  wliich  relate  to  tlie  t-ffect     the  fourtli   part  of  the  Code  of  Civil  Proced- 
..as  evidence  of  iustrumen Is  acknowledged  or  re-     ure:"  Commissioners'  note. 

;I213.   Record,  ivhere  and  lo  iaJ:'Om  vol  ice. 

Sec.  1213.  Every  conveyance  of  r^al  property,  acknowledged  or  proved,  and 
•  certified  and  recorded  as  pr  scribe  1  by  law,  from  the  time  it  is  fikd  with  the 

recorder'for  record,  is  constructive  notice  of  the  contents  thereof  to  subse:iuent 

purchaser  and  mortgagees. 

R9Cordingdate.sfrom  time  of  deposit:  See  er's  office  by  the  grantee,  and  kept  from  the 

an'p,  sec.  1  170,  and  note.  otlice  for  some  time  an  1   is  then   7'etnrned,  t!ic 

R:;oordln2  mortgages:  See  p^xt,  sec.  2937,  lawmaking  a  reconle<l  deed  constructive  no- 

which  section  must  give  way  to  tlie  sections  of  tice  i.-j  suspended  while  t!ie  deed  is  withdrawn: 

this  article  where  conflict  arises  ns  to  priority  Lawton  v.  Gordon,  37  Cal.  202. 

-*f  records  of  mortgages:  Odd  Ft-llows' S.  B.  v.  See  a«<^,  note  to  sec.  1158,  as  to  object  and 

Banton,  4(1  Cal.  GO.'}.  general  effect  of  recording  a  conveyance  of  real 

If  after  a  deed  is  filed  for  record,  and  before  property, 
it  ia  recorded,  it  is  withdrawn  from  the  record- 

;1214.    Conveyances  to  he  recorded,  or  are  void,  etc. 

Sec  1214.  Every  conveyance  of  real  property  other  than  a  lease  for  a  term 
not  exceeding  one  year  is  void  as  against  any  subsequent  purchaser  or  mort- 
gagee of  the  same  property,  or  any  part  thereof,  in  good  faith  and  for  a  valua- 
ble consideration,  whose  conveyance  is  first  duly  recorded. 

226 


1307.  Validating  Defective  Certificates  of  Acknov 
merit.  Any  instrument  affecting  [the  title  to]  real  projl 
which  was,  previous  to  tlie  first  day  of  January,  one  the 
nine  liundred  [nine],  copied  into  tlie  proper  book  of 
Ttept  in  the  ofHce  of  any  county  recorder,  imparts,  aftelh 
•date,  notice  of  its  contents  to  subsequent  purchasers  u\ 
cumbrancers,  notwithstanding  any  defect,  omission, 
formality  in  the  execution  of  the  instrument,  or  in  tl^ 
tificate  of  aclcnowledgment  tlaereof,  or  the  absence 
such  certificate;  but  nothing-  herein  affects  the  rig 
purchasers  or  [incumbrances]  previous  to  that  date.  I 
certified  copies  of  the  record  of  any  such  instrumenl 
be  read  in  evidence  with  like  effect  as  copies  of  an  instr 
duly  acknowledged  and  recorded;  provided,  when  such  cj 
in  the  proper  book  of  record  occurred  within  fifteoni 
prior  to  the  trial  of  the  action,  it  is  first  shown  tl)| 
original  instrument  was  genuine.  (In  effect  from  and 
July  1,  1909.     Stats.  1909,  Chap  54.)  '  Civ.  Cod* 

Note — It  is  evident  that  the  word  incumbrances  should 
Incumbrancers,  and  it  is  so  printed  in  the  original  bill. 
in    the   enroFled   bill   and   the   chaptered   law   it   is   prinie(| 
here  given. 


r 


1213.      Conveyance    Filed    With    Recorder    is    Cons| 
Notice.     Every  conveyance  of  I'eal  property  acknowle 
proved  and  certified  and  recorded  as  prescribed  by  Id 
the  time  it  is  filed  with  the  recorder  for  record  is  confl 
notice  of  the  contents  thereof  to  subsequent  purchs 
mortgagees;   and  a  certified  copy  of  any  such  recorij 
veyance  may  be  recorded  in  any  other  county  and 
recorded   the   record   tiiereof   shall   have   the   same   fo 
effect  as   though    it   was   of    the     original     conveyand 
-where   such   original    conveyance    has    been    recorded 
county  wherein   the  property   tlierein   mentioned   is   w 
sited   a   certified   copy   of   such   recorded    conve\-nnte 
recorded  in  tlie  county  where  such  property  is  situai 
the  same  force  and  effect  as  if  the  original  conve>j| 
tieen  recorded  in  such  county].     (In  effect  60  days'] 
after  iVIarcli   ]n,   1909.      Stats.    1909,   Chap.    171). » 

Civ.   CI 


Title  IV,  Chap.  IV.] 


RECORDING  TRANSFERS. 


1215-1217 


Unrecorded  deed,  when  void. — An  un- 

recortle<l  ileed  is  valid  as  to  the  parties  and 
persons  liavii^g  notice:  Sec.  \2\7,  iiij'ra;  but  as 
to  subsequent  purchasers  or  mortgagees  of  the 
character  speciiied  above,  whose  conveyances 
are  first  recorded,  it  is  void.  Tliis  principle 
appMes  broadly  to  "conveyances,"  as  deliued 
in  secioii  1215,  infra.  See  geueially  the  note 
to  sec.  1158.  Section  lil-t  ai)j)]ies  only  to 
the  parties  mentioned;  as  to  a  creditor,  an 
unrcc mlcd  deed  is  valid;  Pbnit  v.  Snn/tke,  45 
Cal.  IGl;  Iloug  v.  IJoioard,  55  Id.  504r.  As 
between  the  parties,  moreover,  all  the  title  of 
the  \cndor  jjasses  to  the  vendee  unaffected  by 
the  non-registration  of  the  instrument:  Snod- 
gnui^  v.  Jaclxtts,  13  Id.  .S.39;  JHr/^s  v.  Reed,  19 
Id.  Co  I.  A  quitclaim  deed  will,  if  first  re- 
cor  Icil,  jrevail  over  a  prior  uniecorded  bargain 
and  sale  deed  from  the  grantor  to  another:  Graf 
V.  Mldd  Hon,  4.-}  Id.  341 ;  Frey  v.  Clijford,  44  Id. 
335;  .se(/  roxtra:  Clark  v.  McElvn,  11  I.l.  lUO, 
and  ni(te  to  Johnson  v.  Tool,  25  Am.  Dee.  1G4. 

Intent  to  defraud  purchasers  avoids 
deed:  See  sec.  1227,  jJOfit. 

When  purchaser  deemed  to  have  notice: 
See  !^cc.  1217,  potit,  and  note. 

Bona  fide  purchasers,  who  are:  See  also 
sec.  850.  note.  To  make  one  a  purchaser  in  good 
faith  and  for  value  entitled  to  the  protection 
which  tlie  above  section  afTonls,  one  of  the  first 
essent  als  is  that  he  should  have  paid  value. 
He  mu.^t  show  affirmatively  that  he  has  parted 
with  a  valuable  consideration:  Colton  v.  Seavey, 


22  Cal.  406;  Lonr;  v.  DoUarhidc,  24  Id.  218; 
Widlace  v.  Moody,  26  Id.  3S7;  Frey  v.  CVfford, 
44  Id.  335.  The  fact  must  appear  affirmatively 
in  the  findings:  Landers  v.  Bolton,  26  Id.  303. 
The  purchaser  must  actually  have  paid  over  thf 
money  before  receiving  notice  of  the  unrecorded 
conveyance:  Jewett  v.  Palrwr,  1 1  Am.  Dec. 
401 ;  Uni'^n  Canal  Co.  v.  Yonn<j,  30  Id.  212.  II« 
must  not  only  not  have  notice  of  the  jirior  title 
wlien  he  purchases,  butvyhen  he  pays  the  consid- 
eration also:  Blaiiehard  v.  Tyler,  12  Mich.  339; 
Beinftt  V.  Tith'-rinriton,  6  Bush,  192;  Paul  v. 
Faidton,  25  Mo.  15(5. 

The  next  essential  is  that  the  party  claiming 
to  be  a  Itona  fide  })urch;iser  should  have  taken 
without  notice.  For  a  discussion  of  this  ques- 
tion, see  t!ie  note  to  sec.  1217. 

To  entitle  a  second  purchaser  in  good  faith 
and  without  notice  to  take  precedence  of  a  jn  ior 
■^endee  whose  conveyance  is  not  of  record,  it  is 
reqtiisite  that  the  second  deed  should  be  re- 
corded. Statutes  in  other  states  contain  simi- 
lar provisions:  Rodqers  v.  Bnrchanl,  34  Tex. 
441;  Fallaa  v.  Pierce,  30  Wis.  443;  but  see  Gal- 
vKiy  V.  Malchoio,  7  Neb.  285;  McFadden  v. 
Worlhington,  45  111.  302.  As  between  a  pur- 
chaser to  whom  a  written  sale  is  made  prior  to 
the  docketing  of  a  judgment  against  the  grantor 
and  the  deed  acknowledged  afterwards,  and  the 
purchaser  at  the  sheriff's  sale,  the  former  will 
take  precedence  if  his  <leed  is  recorded  before 
the  sheriff's  deed:  Packard  v.  Joh.ison,  51  Cal. 
545;  WUcoxaon  v.  Miller,  49  Id.  193. 


1213.    Conveyance  defined. 

Sec.  1215.  The  term  "  conveyance,"  as  used  in  sections  twelve  hundred  and 
thirteen  and  twelve  hundred  and  fourteen,  embraces  every  instrument  in  writ- 
ing by  which  any  estate  or  interest  in  real  property  is  created,  aliened,  mort- 
gaged, or  incumbered,  or  by  which  the  title  to  any  real  property  maybe  affected, 
except  wills. 

"  Conveyance." — This  term,  as  used  in  section  1213,  includes  mortgages:  Hasseii  v.  Wilhe,  55 

Cal.  525,  528. 

1213.    Powers  of  attorney,  how  revoked. 

Sec  1216.  No  instrument  containing  a  power  to  convey  or  execute  instru- 
ments affecting  real  property,  which  has  been  recorded,  is  revoked  by  any  act 
of  the  party  by  whom  it  was  executed,  unless  the  instrument  containing  such 
revocation  is  also  acknowledged  or  proved,  certified  and  recorded,  in  the  same 
office  in  which  the  instrument  containing  the  power  was  recorded. 

1217.    Unrecorded  instrument  valid  between  the  parlies. 

Sec.  1217.  An  unrecorded  instrument  is  valid  as  between  the  parties  thereto 
?,nd  those  who  have  notice  thereof. 


Who  have  notice — Where  one  has  express 
actual  notice  of  a  prior  unrecorded  conveyance, 
he  is  l)ound  thereby,  ami  an  attempted  pur- 
chase un  his  part  would  be  deemed  fraudulent: 
Stanley  v.  Green,  12  Cal.  148;  Galland  v.  Jack- 
tnan,  20  Id.  79;  Sterens  v.  Morxe,  47  N.  H. 
632;  JJen  v.  McKmqhl,  1 1  N.  J.  L.  385;  Smkh 
v.  Hall,  28  Id.  364;  linrkhalter  v.  Ector,  25 
Ga.  55;  Porter  v.  Sevey,  43  Me.  519;  Busk  v. 
Golden,  17  Conn.  594.  It  is  U[)on  the  suffi- 
ciency of  facts  to  charge  a  person  with  notice 
by  implication  that  the  difficulty  has  been  oc- 
casioned. As  a  general  rule,  it  may  be  stated 
that  whatever  is  sufficient  to  direct  the  atten- 
tion of  a  purchaser  to  the  rights  of  others  and 


will  be  sufficient  to  charge  him  with  notice  of 
such  rights  as  a  prosecution  of  that  inquiry 
wit!i  reasonable  diligence  would  have  elicited. 
With  respect  to  tiiis  rule  there  is  again  some 
conflict  in  t!ie  cases  upon  the  degree  of  dili- 
gence whicli  a  purchaser  must  use,  and  ujion 
what  facts  are  deemed  sufficient  to  i)ut  him 
ujjon  inquiry. 

1.  Postrssion  of  the  land. — With  respect 
to  the  notice  implied  from  possession  of  the 
land,  there  is  this  distinciiou  to  be  observed: 
if  the  possession  is  consistent  with  the  record 
title,  the  jturchaser  is  put  upon  no  further  in- 
quiry; if  the  apparent  possession  is  inconsistent 
with  the  reconl  title  which  the  purchaser  pro- 


enable   liim  to  ascertain    them  upon  inquiry    poses  to  buy,  he  must  make  inquiry  by  what 

227 


'§§  1227-1229 


ACQUISITION  OF  PROPERTY. 


[Div.  II,  pakt  rv. 


right  such  occupant  holds:  Smith  v.  Title,  31 
Cal.  180;  Havens  v.  Dale,  18  Id.  359;  Fair  v. 
Stevenot,  29  Id.  486;  Ely  v.  IVilcox,  20  Wis.  531; 
Pa(>tfn  V.  J/oore,  32  N.  H,  384. 

Where  the  land  is  in  the  actual  possession  of 
one  whose  holding  is  inconsistent  with  the 
vendor's  title,  the  subseqiaent  purchaser  is 
charged  with  notice  of  the  occupant's  title: 
Smilh  v.  Yule,  31  Cal.  180;  Killnj  v.  Wi/.^^oii,  33 
Id.  G91;  Partridge  v.  McKinney,  10  Id.  181; 
Jlorrison  v.  Wilson,  13  Id.  494;  Thompxon  v. 
Pioche,  44  Id.  51G;  IIuiit<'r  v.  IVatsov,  12  Id. 
363;  Fair  v.  Stevenot,  29  Id.  486;  Wairoiis  v. 
Blair,  32  Iowa.  63;  WatkiiiH  v.  Edwards,  23 
Tex.  443;  Ru>isell  v.  Swcezey,  22  Mich.  233;  Tay- 
lor V.  Lowe/isfein,  50  Miss.  278;  Tacher  v.  Fin*- 
demark,  21  Kan.  263.  And  this  whether  the 
Lind  is  occupied  by  the  owner  or  by  his  tenant: 
O'Rourke  v.  O'Connor,  ,39  Id.  442,  And  see 
Uvf/er  V.  Mooiiey,  G3  Id.  586,  where  the  subject 
is  carefully  considered,  and  possession,  together 
with  recorded  conveyance,  held  to  give  notice. 
On  the  fact  of  record  this  case  is  distin'^uished 
from  the  still  later  case  of  Bath  v.  Valdez,  6 
West  Coast  Hep.  889. 

Tlie  possession  ou'^ht  to  be  exclusive,  open, 
and  notorious:  See  Smith  v.  Yide,  31  Cal.  486; 
Page  V.  Waring,  76  N.  Y.  463;  and  contiuuous: 
Brown  v.  Volkenning,  64  Id.  76. 

See  a  complete  treatment  of  this  branch  of 
the  subject  in  Wade  on  Notice,  sees.  273  etseq. 

2.  lipci'alt  in  title  papers — A  vendee  is 
affected  with  notice  of  the  recitals  contained 
in  the  written  instruments  forming  his  chain 
of  title:  Corlntt  v.  Clenny,  52  Ala.  480;  John- 
son V.  Thweatt,  18  Id.  741 ;  Stidham  v.  Ma' hews, 
29  Ark.  6'>0;  Bnrrun  v.  /'o'dhac'sAdm'r,  2  Basil, 
39;  GrejiH  v,  EnanK.  1  Dak.  Tor.  387:  J^ai/ne  v. 
Abi'rrronibie,  10  Hcisk.  101;  Baker  v.  Mdtlier, 
25  Mich.  51;  Deaxon  v.  Taylor,  53  Miss.  697; 
Wood.-i  v.  Krebbx,  30  Gratt.  708;  Widis  v.  Gny, 
48  Tex.  463.     Not  only  is  ho  bound  by  what  is 


recited  in  his  title  deeds,  but  also  by  that  to 
which  his  attention  is  directed  by  these  recitals: 
Wiseman  v.  Uatchinxon,  20  Ind.  40;  Gro>dcey  v. 
Chapman,  26  Id.  33;  Deason  v.  Taylor,  53 
Miss.  697;  Payne  v.  Abercromhie,  10  Ileisk. 
161.  But  the  recitals  ought  to  be  so  far  correct 
as  necessarily  to  lead  to  an  acquaintance  with 
the  circumstances  with  which  the  i)arty  is 
sought  to  be  charged:  Dell  v.  Twilight,  22  N. 
H.  500;  Cambridge  Valley  Bank  v.  Delano,  48 
N.  Y.  326. 

The  fact  that  a  wife  joins  in  a  deed  with  her 
husband  is  not  notice  to  a  creditor  having 
knowledge  of  that  deed,  and  who  claims  under 
the  husband  by  a  sherifTs  sale,  that  the  wife 
holds  unrecorded  deed  for  the  land:  Vassault 
v.  Austin,  36  Cal.  691;  see  also  note  to  Lodge 
V.  Simoidon,  23  Am.  Dec.  47. 

3.  Lis  pendens:  See  Code  Civ.  Proc. ,  sec.  409, 
and  note. 

4.  Other  circumstances. — Great  inadequacy 
of  consideration  may  be  sufficient  to  put 
the  purchaser  on  inquiry  and  charge  him  with 
notice  of  what  reasonable  inquiry  would  have 
imformed  him:  Argenti  v.  Sail  Francisco,  6 
Cal.  677;  DeWitt  v.  Perkins,  22  Wis.  473; 
Iloppin  V.  Doty,  25  Id.  573.  Purclmse'r  of  a 
mere  equitable  title  is  not  a  bona  fide  purchaser, 
within  the  meaning  of  the  rule  under  consid- 
eration; he  takes  subject  to  existing  equities: 
Diipont  V.    Wertheman,  10  Id.  354. 

5.  Information  given  to  the  purchaser, 
wliether  sufficient  to  put  him  on  inquiry:  See 
note  to  Lodge  v.  Simonton,  23  Am.  Dec.  47. 

Puroha^er  without  uotloe  from  one  who 
has  notice  does  not  acquire  title  except  under 
t!ie  registry  act,  and  if  the  third  person's  <lecd 
is  put  on  recoi-d  l)ef(>re  the  ])urcha3er's  deed  is 
executed  the  recorded  deed  takes  precedence: 
J\lahonty  v.  iliddleton,  41  Cal.  41>  see  note  to 
Ludlow  v.  Gill,  1  Am.  Dec.  695. 


CHAPTER  V. 

UNLAWFUL  TRANSFERS. 

1227.  Cerfain  infitri(ments  void  ag(dnf<t  purchasers,  etc. 

Sec.  1227.  Every  instrument,  other  than  a  will,  aflfeotingf  an  estate  in  real 
property,  including  every  charge  upon  real  property,  or  upon  its  rents  or 
profits,  made  with  intent  to  defraud  prior  or  subsequent  purchasers  thereof,  or 
incumbrancers  thereon,  is  void  as  against  evei-y  purchaser  or  incumbrancer,  for 
value,  of  the  same  property,  or  the  rents  or  profits  thereof. 

Transfers  in  fraud  of  creditors:  See  sec.  Voluntary  conveyances  and  their  validity 
34.'^9.  jiost.  as  between  the  parlies,  with  respect  to  cred- 

Fraudulent  intent  is  question  of  fact:  itors  an<l  purchasers:  See  the  note  to  JeH^-iwa  v. 
Sec  sec.  3442,  post.  Clement,  14  Am.  Dec.  703. 

1228.  Not  void  acjaim-t  purchaspr  having  notice,  unless  fraud  is  mvtunl. 

Sec.  1228.  No  instrument  is  to  be  avoided  under  the  last  section,  in  favor  of 
a  subsequent  purchaser  or  incumbrancer  having  notice  thereof  at  the  time  his 
purchase  was  made,  or  his  lien  acquired,  unless  the  person  in  whose  favor  the 
instrument  was  made  was  jirivy  to  the  fraud  intended. 

1229.  Power  to  revoke,  ivhen  deemed  executed. 

Sec.  1229.  Where  a  power  to  revoke  or  modify  an  instrument  affecting  the 
title  to,  or  the  enjoyment  of,  an  estate  in  real  property  is  reserved  to  the  grantor, 

223 


Title  V,  Cuap.  I.]  GENERAL  PROVISIONS.  §§  12.'50-1237 

or  given  to  any  other  person,  a  subsequent  grant  of  or  charge  upon  the  estate, 
by  the  person  having  the  power  of  revocation,  in  favor  of  a  purchaser  or  incum- 
brancer, for  \alue,  operates  as  a  revocation  of  the  original  instrument,  to  the 
extent  of  the  power,  iu  favor  of  such  purchaser  or  incumbrancer. 

1230.  Same. 

Sec.  12.30.  "Where  a  person  having  a  power  of  revocation,  within  the  provis- 
ions of  the  last  section,  is  not  entitled  to  execute  it  until  after  the  time  at  which 
be  makes  such  a  grant  or  charge  as  is  described  in  that  section,  the  power  is 
deemed  to  be  executed  as  soon  as  he  is  entitled  to  execute  it. 

1231.  Other  provisions. 

Sec.  1231.  Other  provisions  concerning  unlawful  transfers  are  contained  in 
Part  II.,  Division  IV.,  of  this  code,  concerning  the  special  relations  of  debtor 
and  creditor. 

See  sees.  34:39,  post,  et  seq. 

TITLE  V. 
HOMESTEADS. 

Chapter  I.     General  Provisions 1237 

II.     Homestead  of  the  Head  of  a  Family 12G2 

III.     Homestead  of  Other  Persons 12G6 

CHAPTER  I. 

GENERAL  PROVISIONS. 

1237.   Ilomestead ,  of  what  consials. ' 

Sec.  1237.  The  homestead  consists  of  the  dwelling-house  in  which  the  claim- 
ant resides,  and  the  land  on  which  the  same  is  situated,  selected  as  in  this  tille 
provided.  [Amrndineid,  approved  March  30,  1874;  Amendments  1873-4,  228; 
tooL  effect  July  1,  1874  ] 

For  a  vsry  carcfal  classifiGation  of  the  quantity  by  itself  considered,  it  is  unlimited, 

dejio.'ons  rendered  under  tlie  respective  laws  whether  iu  town   or  country.     In    sliort,  the 

of  t!iu  Ejver.d  btates  up.in  tliis  general  subject,  only  tests  are  use  and  value.     The  fonncr  13 

cououlfc     Seymour     D.    Thompson's    work    on  both  abstract  and  statutory,  the  latter  statutory 

Ho  iicotead  and  Exemptions.  only.     Whatever  is  used,  beinv;  either  necessary 

KcmSjLeads — Constitutional  protection:  or  convenient  as  a  place  of  residence  for  the 

Seriato.  17,  sec.  1.  fami'yas  contradistinvjuishcd  from  a  p'aec  of 

Gcloot'oa  of  homestsad:  Sec.   1202,  poi^t.  business,  constitutes  the  homestead,  suljjcct  to 

Eirompuon    of     lioiuestead:    8ecs.    1'240,  the  statutory  limit  as  to  value.     If,  however, 

1211,i,:/>(.  it  U  also  used  as   a  place   of  business  by  the 

Go'-ting  apart  home-stead  for  decedent's  family,  which  frequently  happens,  it  may  not 

faiiul7-:  Co.le  Civ.  Pmc,  sees.  l-liJ5  et  teq.  there  I  ore  cease  to  boa  liomestcad  if  it  wouUl  bo 

Abandoumeut  of  homestead:   Sec.   124.3,  necessary  or  convenient  for  f::mily  use,  imlc- 

infni.  pendent  of  the  business.     If  what  is  actually 

Ti!C  code  commissioners  annex  to  the  above  used  a-s  a  homestead  is  of  greater  value  tluia 
Bection  llio  followinj^  note:  "  Both  in  the  con-  five  thousand  dollars,  the  excess  is  not  liome- 
Btitutiou  and  in  the  statute  the  word  'home-  stead  under  the  law,  t'.iough  so  in  fact.  _l''ur- 
Btca  1'  ij  used  iu  its  ordinary  or  po^tular  sense;  tlicr  tlian  this  in  the  way  of  gcncial  detinition, 
or  i.i  o:her  words,  its  legal  sense  ijalso  its  pop-  it  is  ditHcult  to  go,  if  not  impossible.  \yh  it- 
ular  bcnjC.  It  tepresenls  the  dwcLing-liouse,  ever  lies  beyond  must  Hud  its  deaionstration  iu 
iu  whieU  tliofamdy  resides,  with  the  usual  and  the  peculiar  f.icts  of  the  case.  The  hoincstead 
customary  app'irtenauces,  ineludiug  out-bui:d-  for  u-hich  tho  law  provides  is  not  one  iu  name 
in;^3  <jf  every  kind  necessary  or  convenient  for  merely,  but  one  in  fact.  The  law  is  foumled 
family  use  and  lauds  used  for  the  purposes  ujion  the  iilca  that  it  is  good  for  t!ie  gcn«M-al 
tlurjof.  If  situated  iu  the  country,  it  may  in-  wcli'aro  that  every  family  sliould  have  a  hoaie, 
ciuilc  a  garden  or  farm;  if  situatcil  in  a  city  or  a  place  to  abide  in,  a  casUc  where  it  can  find 
town,  ii  may  include  one  or  more  lots  or  one  or  shelter  from  iinancial  disasters  and  protection 
more  blocks.  In  eiiJier  case  it  is  unlimiied  liy  against  the  pursuit  of  creditors  wlio  have  giveu 
extent  meicly.  It  need  not  bj  in  a  compact  credit  with  tie  fall  knowledge  that  they  can- 
body;  on  the  contrary,  it  may  be  intersected  by  not  cross  its  llireshold.  But  it  is  not  founded 
'  liigliways,  streets,  or  alloys.  Neither  is  it  eir-  upon  iiie  idea  tiiat  every  famiiy  ought  for  tlie 
cumsjrjbedby  fences,  merely.     In  respect  to  sake  of  the  general  good  to  bo  allowed  to  hold 

229 


C1238 


ACQUISITION  OF  PROPERTY. 


[Div.  II,  Part  IV, 


five  thousand  dollars'  worth  of  land  free  from 
tlie  touch  of  honest  creditors,  provided  they 
reside  iqioa  and  use  some  jjortion  of  it  as  a 
homestead:  Gregj  v.  Doi.tmrk,  S3  Cal.  2JS." 

Tlie  chaiii^H  in  section  12.57  by  the  auiend- 
inciit  of  1874  does  not  diminish  the  force  of 
these  observations.  The  original  section  read: 
"  Tlic  iiomestua  1  consists  of  a  quantity  of  land 
on  wliicii  the  claimant  resides,  selected  as  in 
this  title  provided."  The  amendment  was, 
tlierefore,  rather  in  the  line  of  tlie  views  cx- 
picssetl  in  the  note  tiian  otlierwise. 

Residence  and  use. — In  onler  to  impress 
upon  jireniises  the  cliaracter  of  homestead,  it 
is  essential  that  the  claimant  actual  y  resides 
tiureon  at  the  time  the  declaration  is  hied: 
Graiiije  v.  Gonijk,  4  West  Coast  Rep.  Gu4; 
Pri'xrott  V.  Pre  coU,  45  Cal.  58:  Uabcoch  v. 
Gilr>,%  :,-2  Id.  Cr.O;  Aurker  v.  McCoy,  50  Id. 
524;  Dorn  v.  Ifotce,  52  Id.  030;  sec.  l'JG3,  post. 
The  use  of  the  prennses  for  tlie  family  resi- 
dence is  an  im})ortant  element  to  be  consid- 
ered: Lawjldin  v.  Wright,  63  Id.  113  If  the 
premises  are  primarily  the  home  of  the  fam- 
ily, it  will  not  impair  the  effect  of  the  home- 
stead that  the  premises  are  also  used  as  a 
place  of  business  by  the  family:  Estate  of  De- 
liine'j,  37  Cal.  176.  Bat  wliere  the  premises  in 
question  are  used  primarily  and  principally  as 
a  place  of  business — e.  [/.,  a  hotel — the  mere 
residence  of  the  declarant  and  his  family  in 
the  buihling.  a  residence  incidental  to  the  busi- 
ness, will  not  authorize  prol^ection  of  the  prem- 
ises as  a  homestead:  Laiir/hlin  v.  Wrijht,  03 
Id.  113.  See  ArUe;/  v.  Vhambrrlain,  10  Id. 
181,  where  the  use  of  a  bunding  as  a  hotel  did 
not  destroy  its  character  for  homestead  pur- 
poses. 

And  a  man  cannot  claim  the  benefit  of  a 
homestead  upon  premises  which  lie  does  not 
personally  occupy,  as  wliere  a  declaration  had 
been  fiied  upon  a  double  house  witli  two  dis- 
tinct entrances,  one  half  of  wdiicli  house  was 
occupied  by  a  tenant.  In  such  case  the  decha- 
ration  was  held  not  to  protect  the  portion  not 


occupied  by  the  owner.  "In  this  case  tha 
claimant  did  not  reside  in  the  structure,  which 
was  occupied  by  his  tenants.  The  facts  of  this 
case  are  widely  different  from  the  case  of  a 
person  residing  in  a  building  and  renting  apor- 
tion  or  portions  of  it  to  roomers  or  lodgers:** 
Tkrnan  v.  Creditors,  OJ  Cal.  2S6. 

Residence  and  use  as  a  homestea<l,  with  in- 
tent to  dedicate  the  premises  to  such  ])urpose, 
must  unite,  and  residence  is  prima  facte  evi- 
dence of  sucli  intention:  llolde.n  v.  I'ianey,  8 
Cal.  234.  Rut  presumption  arising  from  resi- 
dence may  be  dcfeacud  by  facts  and  circum- 
stances idinnde:  Id. 

Occupancy  by  the  family  raises  the  i)resump- 
tion  that  the  premises  are  a  hi;mestead,  and  all 
are  bound  to  take  notice  of  the  occupant's 
claim:  Cooke  v.  McChristlan,  4  Cal.  23;  Taylor 
V.  Ilnrjous,  Id.  208.  It  will  not  prevent  a 
husband  and  wife  from  acquiring  a  homestead 
that  they  do  not  intend  permanently  to  rcsitle 
in  the  state;  their  rights  under  the  statute 
exist  as  long  r.s  they  do  resiile  here:  Dawleyv. 
Ayres,  23  Id.  108. 

A  declaration  upon  two  lots,  one  of  which  is 
used  for  drying  clothes,  protects  both  lots: 
Eiiglebrecht  v.  Shade,  47  Cal.  627;  so  see  Mc- 
Doiiakl  V.  Balgcr,  23  Id.  3'J3.  A  iunnestead 
right  cannot  be  asserted  merely  to  a  building 
independent  of  the  land  on  which  it  is  situated: 
Smi'h  v.  Smith,  12  Id.  210.  Residence  witliin 
an  inclosure  upon  a  portion  of  the  land  selecte:! 
covers  the  homestead  right  outside  the  inclos- 
ure, where  the  land  does  not  exceed  in  value 
live  thousand  dollars:  Ornhaum  v.  Creditors, 
01  Id.  435. 

The  tests  by  which  the  homestead  is  ascer- 
tained are  the  same  wiiether  tlie  questioa 
arises  between  a  husband  and  wife,  fir  one  of 
them  and  a  vendee,  a  mortgagee,  a  creditor,  or 
the  heirs  of  the  deceased  husband  or  wife: 
Es'ate  of  Delaiiey,  37  Cal.  170. 

Value:  See  sec.  1203,  note. 

Nature  of  tlie  homestead  estate:  See  sec 
1205,  iu  note. 


1233.    From  what  may  he  selected. 

Sec.  1238.  If  the  claimant  be  married,  the  liomestead  may  be  selected  from 
tlie  community  property,  or  the  separate  property  of  the  husband,  or  with  the 
consent  of  the  wife  from  her  separate  property.  When  the  claimant  is  not  mar- 
ried, but  is  the  head  of  a  family  within  the  meaning  of  section  twelve  hundred 
and  sixty-one,  the  homestead  may  be  selected  from  any  of  his  or  her  property. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  229;  took  effect 
Jabjl,  1874.] 


Prom  what  m^y  bs  sol33t3d.— This  sec- 
tion einpo'.ver.4  the  wife  to  declare  a  hom  -stead 
from  the  community  property,  or  from  the  sep- 
arate property  of  the  husban  I.  His  consent  is 
not  made  necessary  to  warrant  tlie  wife  in  thus 
setting  apart  his  separate  projierty  for  t'.ie  fam- 
ily home.  But  it  ii  noticeable  from  this  and 
the  next  section  that  the  husband  must  secure 
tlie  wife's  consent  before  he  can  so  me  her  se;)- 
arate  estate.  See  rdso  sec.  12'.)2,  as  to  the 
wife's  power  to  select  a  homestead.  The  con- 
munity  property,  or  separate  p;-o;)erty  of  tlie 
husband,  the  statute  designs  shall  first  be  de- 
voted to  the  purposes  of  homestead:  Gee  v. 
Moore,  14  Cal.  472.  T!ie  premises,  whether 
separate  or  comniunit}'  property  before  d3d- 
ication,  resume  their   original   character  when 


the    homestead    is   abandoned:     Johnston     ▼. 
Bash.  4J  Id.  198. 

Under  the  liomestead  laws  in  force  in  thij 
state  prior  to  18  38,  homesteads  could  not  be 
carved  out  of  land  held  in  joint  tenancy  or  by 
tenancy  iu  co  nmon:  W.df  v.  Flels.'iarker,  5 
Cal.  2U;  ReviolU  v.  Pixley,  6  Id.  iO.V,  Elian 
v.  Verdngo,  27  Id.  418;  Seaton  v.  Soa,  32  Id, 
481;  Cam,'"o  v.  Dnpuy,  47  Id.  83;  /Ijii^s^t  v. 
Green,  51  Id.  13'j;  /''irst  A'at.  I>ank  of  Santa 
Barb  ira  v.  De  la  Guerra,  01  Id.  lO.").  Under 
the  act  of  1803.  which  allowed  ho  acstead:!  to 
be  carved  out  of  such  lands,  it  can  only  bo  done 
wliere  tlie  claimant  is  iu  the  exclusive  posses- 
sion of  th3  tract  souglit  to  be  iledicated: 
RvKset  V.  Green.  51  Id.  130;  ('amHo  v.  /)H//iitf, 
47  Id.  7i);  Uijjiiis  V.  Higjins,  40  Id.  250.     A 

230 


Title  V,  Chap.  L] 


GENERAL  PROVISIONS. 


§§  1200,  1240 


homestead  right  was  destroyed  by  conveying 
an  undivided  one  lialf  of  the  land  to  a  third 
person:  Carro'l  v.  Ellis,  G3  Id.  4-10. 

In  the  absence  of  restriction  ujion  the  nature 
of  the  interest  of  the  declarant  in  the  land 
upon  which  the  character  of  a  homestead  is 
80ug!it  to  be  imposed,  whatever  title  he  has  he 
may  protect  by  a  declaration,  and  may  sulise- 
quently  perfect  by  purchase  of  the  outstanding 
title.  The  homestead  is  gooil  as  to  every  one 
eave  the  owner  of  the  land:  Si^encsr  v.  Gti'*e- 
nail,  37  Cal.  9(5.  In  this  case  a  person  having 
the  mere  naked  possession  was  permitted  to 
acquire  a  liomestcad  right  tiiereto.  But  see 
Calderirood  v.  Terw,  23  Id.  335.  By  iiling 
the  declaration  the  declarant  acquires  no 
further  title  than  that  which  he  originally  pos- 
sesseil:  Brooks  v.  /Ji/de,  37  Id.  336.  It  simply 
protects  from  execution  what  interest  he  may 
have  in  the  laiul:  Id.  A  homestead  right  can- 
not le  asserted  a^'ainst  one  who  is  lawfully  en- 
titled to  the  possts;;ion:  3/a7in  v.  Uoil<j<'rs,  35 
Id.  310;  nor  by  one  who  is  out  of  possession:  Id. 


In  determining  upon  what  interest  in  land  a 
homestead  right  may  be  acquired,  it  may  be  of 
assistance  to  consider  the  original  section  1238, 
and  the  commissioners'  note  thereto.  The  sec- 
tion was:  "It  niay  be  selected  by  the  claimant; 
from  ail}'  land  in  the  possession  of  tlie  claim- 
ant, or  of  the  husljand  of  the  claimant."  And 
the  note  referred  to  contains  the  following: 
"  Under  section  1238,  subject  to  the  limitation 
contained  in  section  1239  ["  th«  husband  cannot 
select  a  homestead  from  the  separate  jiropertj 
of  the  wife  "J,  the  right  of  selection  may  be  ex- 
ercised from  any  land  of  which  the  claimant  or 
her  husband  is  possessed.  The  estate  in  the 
land  out  of  whicli  the  homestead  is  carved  may 
be  the  fee,  or  such  an  interest  as  mere  naked 
jfosscssion  f'ives,  or  any  intermediate  estate. 
The  possession  may  be  held  by  the  claimant 
alone,  or  in  coTumon,  or  in  joint  tenancy,  for 
possession  of  any  character  is  sudlcient.  It  ia 
the  *  home '  that  is  intended  to  be  ]i!X)tcctcd  to 
the  extent  of  tiic  rigiits  of  which  the  claimant 
or  her  husband  has  in  it." 


1239.  When  selected  from  wife's  separate  estate. 

Sec.  1239.  The  homestead  cannot  be  selected  from  the  separate  property  of 
the  wife  without  her  consent,  shown  by  her  making-,  or  joining  in  mating,  the 
declaration  of  homestead.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  229;  took  effect  July  1,  1874,] 

1240.  Exempt  from  forced  sale. 

Sec.  1240.     The  homestead  is  exempt  from  execution  or  forced  sale,  except  a3 

in  this  title  provided. 


Esemptiou  from  forced  sale — "The  con- 
stitucion,  article  11,  section  15  [article  17, 
section  1,  constitution  of  1S79],  provides  that 
'  the  legislature  shall  protect  by  law  from  forced 
sale  a  certain  jiortion  of  the  homesteatl  and 
other  pioperty  of  all  heads  of  families.'  Our 
homestead  laws  are  enacted  to  give  effect  to 
this  provision.  A  'forced  sale'  is  not  synony- 
mous with  a  'sale  on  execution,'  etc.  The 
latter  may  be,  and  often  is,  voluntary  in  every 
respect.  \Vhen  the  owner  consents  to  a  sale 
under  the  execution  or  other  legal  process,  the 
sale  is  not  forced,  Ijut  it  ie  as  voluntaiy,  within 
the  full  ini])ort  of  tlie  term,  as  it  is  when  he 
directly  etfi  cts  tiie  sale  and  executes  the  con- 
veyance. Its  <juality,  as  being  voluntary  or 
foiced,  depends  not  upon  the  mode  of  its  exe 


exemption.  Where  the  owner  of  the  homestead 
consents  to  a  sale  under  execution  oi'  other  legal 
process,  it  is  not  a  forced  sale.  It  m  dees  no 
difference,  in  respect  to  its  being  forced  or 
voluntary,  whether  he  consents  directly  to  the 
sale,  or  does  the  same  indirectly  by  consenting 
to  or  doing  those  acts  or  things  that  necessarily 
or  usuaby  eventuate  in  a  sale.  A  f'^reclosure 
sale,  wiiether  under  the  power  of  sale  contained 
in  tlie  mortgage  or  in  pursuance  of  a  decree,  is 
not  a  forced  sale  within  tiie  meaning  of  the  con- 
stitution or  the  statute:  PctfVHOiiw  Jlondilowcr, 
33  Cal.  277: "  From  code  commissioners'  note. 
The  exception  "as  in  this  title  provided  "  is 
stated  in  section  1245,  iw/ra,  and  in  nootlicrway 
than  is  indicated  in  this  section,  and  more  fully 
explained  in  tiie  sections  that  foUuw,  can  [irop- 


cution,  l)ut  upon  the  presence  or  absence  of  the     erty  which  has  been  declared  as  a  homesteacl. 


consent  of  the  owner.  If  those  terms  were 
eynoaymons,  the  [provision  would  iiave  been 
that  the  homestead  s'lall  not  be  subject  to  sale 
under  execution  oi-  other  legal  process.  The 
meaning  of  a  sale  on  executum  or  other  final 
process  is  plain,  and  needs  no  interpretation, 
and  tiie  word  'forced,'  unlessitisto  be  rejected 
as  insensible,  must  qual.fy  the  phrase  with 
which  it  is  connected.  But  there  can  be  no 
question  that  enforced  sale  means  a  sale  against 
the  will  of  the  owner.  It  is  apparent  tliat  it 
was  not  the  intent  of  the  framers  of  the  con- 
stitution to  prevent  the  owner  or  owners  of  the 
homest.  ad  property  from  voluntarily  alienating, 
changing,  or  other v\ise  affecting  it.  The  home- 
stead was  not  f  irced  upon  him,  but  he  was  at 
liberty  to  avail  hiihself  of  its  protection  or  not, 
at  his  election,  and  if  accej)ted;  to  waive  it  at 
his  election,  the  consent  of  his  wife,  if  he  was 
a  married  man,  b.ing  required  in  order  to  secure 
to  her,  also,  the  protection  of  the  homestead 

231 


"no  matter  what  may  be  its  actual  \alue,"  b^ 
subject  to  execution  or  forced  sale:  JJnneCt  v. 
Si?}i'',  50  Cal.  615.  An  order  of  the  insolvency 
court  directing  a  iiomestead  to  be  sol  I  is  ia 
excess  of  its  jurisdiction,  and  void:  S.  C,  64 
Id.  440.  The  court  should  set  it  asiile  for  th* 
debtor:  Dascey  v.  Harris,  3  West  Coast  Rep. 
203. 

A  judgment  obtained  after  a  declaration  oH 
homestead,  uule-<s  secured  by  a  mortgage  or  by 
a  meclimic's,  vendor's,  or  laborer's  lien,  cannot 
be  enforced  against  the  homestead:  Acldei/  v. 
Cluuidxrkdu,  10  Cal.  181;  McCrwken  v.  Jlar' 
n's  54  Id.  81 ;  Sullivan  v.  Ileudrickson,  I  I.  25 J; . 
Dariuit   V.    Kniijht,   2   West  Coast   llep.  804 
(Col.);  and  tins  although  an  attach  ment  may 
have  been  levieil  upon  tlic  premisi  s  \)'.fore  th© 
filing  of    the  declaration  of  honies^-c^d:  Cases 
from  54  Cal.,  s/i/>ra.    A  subsequent  t\ c*^ laratioft  • 
of  hom.stead  defeats  a  prior  atiachmont  lien:. 
Same  citation;    )F»/ao/i   v.  Madison,  5S  Id.   1. . 


g§  1241,  124^ 


ACc3t^ISITI6^f  OF  rRdPfiRTY. 


[Div.  II,  Taut  IV^ 


But  a  judgment  rcridered  befote  the  filing  of 
tlie  ilcolaration  takes  precciileiice  (if  tlie  liome- 
Btea.l  ami  becomes  a  lieu  upon  the  land:  Seo 
*!ec.  1-24I,  snbd.  1.  Theslieriif  may  ho  enjoined 
fvonl  sel.ing,  cjl  a  deficiency  judgment  ill  foiO- 
HosurcjToeeedingS,  hmds  ujion  vvliich  adcclara- 
tion  hail  bc'cii  tilcil  befdr'G  t'le  balance  due  an  the 


A  partnership  cannot  escape  its  Creditors  by 
converting  its  elleots  into  real  estate,  to  l)e 
selected  as  a  homesteail  by  one  of  tin;  lirni; 
the  land  will  be  liable  to  execution,  notwith- 
standing the  di'daration  of  lioni  tstead:  i>lshop 
V.  Ilubbtirl,  '2.")  Cal.  514.  Andwliere  picini  (!3 
have  never  been  actually   iin^iresscd  with  the 


2i;5. 

Crops  grown  on  hoinostead. — The  pro- 
ducts of  llie  homestead  are  not  in  terms  p:o- 
tectod  from  forced  sale  by  the  declaraiion  of 
honiestea'l.  And  reading  t'le  home^tea  1  biw 
in  conjunction  wit!i  t  jo  statute  of  exemptions, 
Code  Civ.  L^roc  (>90,  tiie  suprcnie  court  con- 
cluded that  grain  harvested  fioin  l.jids  cim- 
stitntiiig  the  bomestead  Avas  siibject  to  execu- 
tion for  the  husl)and's debts:  I/oiyaii  v.  Am/rk, 
G2  Cai.  401.  But  tiiat  wheat  gnnving  on  a 
homestead  is  part  thereof,  and  does  nut  jiass  to 
an  assi  ,'nee  in  insolvency,  see  Dascey  v.  Harris^ 
3  West  Coast  Rep.  '202. 


J(ulgm';nt  on  the  foreclosure  had  been  reported     character  of  a  homestead,  they  are  not  exempt 
rfiid  recdrdcd:  Culver  v.  Iioij'-ts,  '28  Cal.  MO.  Car<i/  v.  7'icv,  0  Id.  G25. 

The  homestead.  i-ig!it  may  be  pleaded,  cither  The  right  of  exemption  is  personal,  and  can- 
l^iy  hasbaiid  <ir  wife,  in  ejectment  on  a  shprill''s  not  ))e  transferred  even  by  tiie  joint  act  of 
rteed  under  an  attempted  forced  sale:  Williams  husband  and  wife:  Bownuni  v.  Norton,  IG  Cal. 
^.   Yoini'j,  17  Cal.  4J3. 

■  The  protection  here  afforded  was  designed  to 
protect  t!ie  homestead  from  forced  sale  for  or- 
♦liuary  indebtedtiess;  it  does  not  give  an  immu- 
nity from  toits  and  l8,'al  consequences:  Sh'inii 
V.  llariihcrxon,  58  Cal.  590,  a  case  wlier'» 
money  was  withdrawn  by  a  partner  from  firu. 
assets  to  discharge  a  mortg  !ge  existing  at  the 
time  the  declaration  was  lilcil,  and  which  act 
the  court  held  was  a  fraud  upon  the  copartner, 
entitling  him  to  have  the  lien  of  the  mortgage 
restored  in  his  favor.  As  to  insolvent  hus- 
band's right  to  use  money  to  clear  his  home- 
stead of  an  incumbrance,  see  Randall  v.  Baf- 
Jitmton,  10  Id.  491. 

1241.    When  homeMead  subjeii  to  execution. 

Sdc.  1241,  The  homestead  is  subject  to  execution  or  forced  sale  in  satisfac- 
tion of  judgments  obtained: 

1.  Before  the  declaration  of  homestead  was  filed  for  record,  and  Tvhich  consti- 
tute I'ens  upon  the  premises; 

J    2.  On   debts   secured   by  mechanics',  laborers',  or  vendors'  liens  upon  the 
premises; 

3.  On  debts  secured  by  mortgages  on  the  premises,  executed  and  acknowl- 
edged by  the  husband  and  wife,  or  by  an  unmarried  claimant; 
'    4.  On  debts  secured  by  mortgages  upon  the  premises,  executed  and  recorded 
before  the  declaration  of  homestead  was  filed  for  record.     [Amendinenl,  approved 
April  G,  1880;  Amendments  1880,  7  {Ban.  ed.  12G);  look  effect  immediatclij.] 

A  vendor's  lien  does  not  prevent  the  ven-     corder's  office;  therefore  the  fding  of  a  declara- 
dee's  selecting  the  land  as  a  homestead;  it  is 
eelected  subject  to  the  lien:  2IcIIaulry  v.  Iteilly, 
J3  Cal.  75. 

Jud3m3nt3  before  filing  declaration  of 
homeitsad  are  liens  upon  the  homestead: 
Bartholomew  v.  Hook,  23  Cal.  277;  Noble 
Hook,  24  Id.  G39.  If,  however,  after  t'le  judg- 
ment is  docketed,  the  wife  tile  a  declaration  of 


tion  of  a  homestead  upon  land  after  a  jnsti'^e'a 
judgment,  but  befoi'e  the  abstract  is  recorded, 
will  exftm|(t  the  premises  from  ex<-.cution:  Wil- 
son V.  Madison,  68  Id.  1. 

Where  the  lands  on  whicli  a  homestead  had 
been  acquired  were  exchanged  for  other  lands 
upon  which  at  the  same  time  a  declaration  of 
hmnesteatl  was  filed,  it  was  held  that  t!ie  lien 
homestead,  she  acquires  such  a  right  as  will  of  a  judgment  did  not  att..ch  upon  the  second 
enable  her  to  compel  the  sheriff  to  exhaust  land  in  precedence  of  the  declaration  of  home- 
other  pioperty  of  the  husband  before  proceed-  stead:  Eby  v.  Forster,  Gl  Cal.  2S2. 
.ing  to  sell  the  homestead:  Burlholom/'tov.  Jfonk,  Mortgages:  See  next  section. 
supra.  The  lien  of  a  judgment  rendered  by  a  V^alid  liens  existing  on  a  mortgige  should  be 
ijustice's  court  does  not  attach  upon  land  until  enforced  in  the  superior  court:  Jn  re  Orr,  29 
.  au  abstract  of  the  judgment  is  filed  m  the  re-     Cal,  lOJ, 

1242.    How  conveyed  or  incumbered. 

Si:c.  1242.     The  homestead  of  a  married  person  cannot  be  conveyed  or  incum- 
bered unless  the  instrument  by  which  it  is  conveyed  or  incumbered  is  executed 
.and  acknowledged  by  both  husband  and  wife. 


Conveyance  of  homestead. — The  home- 
r-etead  can  be  conveyed  only  in  the  manner  pre- 
rficribed  bylaw:  Lie"  v.  De  Daiblar,  12  Cal.  327; 
.'Poole  V.  Ocrrard,  G  Id.  71;  Gee  v.   Moore,  14 

Id.  472;  Oniod  v.  Gniod.  Id.  503;  McQuiide  v. 

Whale'i,  31  Id.  526;  Fl'-tj"  v.  OariH';/,  41  Id. 
.G71;  JIouij/Uoii  v.  Lee,  50  Id.  101;  jJcmhey  v. 


Dennis,  53  Id.  77;  Gaijlianlo  v.  Dumont.  54  Id. 
49G. 

The  sale,  to  be  valid,  requires  the  joint  deed 
of  the  husband  and  wife:  Flfije  v.  Uiirreij.  47 
Cal.  371;  the  separate  devds  of  each  are  lioth 
invali'l:  Poole  v.  Gerard,  G  Id.  71.  It  makes 
no  dilTerence  how  the  homestead  was  acquired, 


Title  V,  Chap.  I.] 


GENERAL  mOVISIONS. 


§124^ 


or  whether  it  was  common  or  separate  prop-rty. 
iiew  V.  JJe.  Dalblar,  12  Id.  327;  whetlii-r  tlie 
convej'ance  by  tlie  husbaml  alone  is  valil  a-s  to 
the  excess  in  value  above  the  amount  for  which 
a  homestead  can  be  declared,  see  GVe  v.  Moore, 
14  id.  472;  Sanjttnt  v.  Wiison,  5  Id.  504;  l)or>iey 
V.  JSlcFurUuid,  7  Id.  34G;  Recalk  v,  Kiaemer,  S 
Id.  74;  JJuiui  V.  Tozer,  10  Id.  1G7.  And  as  to 
the  ed'ect  of  a  conveyance  by  the  husband  alone, 
under  the  act  of  1S51,  see  JlcQuade  v.  II  hale//, 
3J  id.  52(i. 

There  is  a  joint  estate  in  the  homestead 
vested  in  the  husl)and  and  wife  w  hich  can  only 
be  divested  by  the  concurrent  acts  of  the  hus- 
band and  wife:  Barber  v.  Bubt^l,  30  C'al.  11. 
This  act  must  be  personal,  under  the  law  as 
passeil  in  1SG2;  a  conveyance  of  tlie  homestead 
could  not,  under  that  act,  be  executed  by  attor- 
ney: Gaijliardo  v.  Dumont,  54  Id.  49G;  and  see 
Lautjhlni  V.  Wrhjld,  63  Id.  113,  where  the  home- 
steail  was  iuvahd.  A  contract  by  a  married 
man  for  the  sale  of  land  requires,  if  the  land  is 
a  homestead,  a  ileed  to  which  the  wife  is  a  party: 
Clarkiii  V.  Leicis,  20  Id.  634. 

That  equity  will  cancel  a  deed  induced  by 
fraud  upon  the  liusband  and  wife,  see  Still  v. 
SaimderH,  8  Cal.  28 1. 

The  homestead  right  of  exemption  from  forced 
sale  cannot  be  transferred  even  by  the  joint  act 
of  husband  and  wife.  It  is  a  personal  exemp- 
tion, which  may  be  released  or  abandoned,  but 
not  sold:  Boicman  v.  Norton,  16  Cal.  213. 

Mortgages  and  inciimbrances. — There  are 
two  classes  of  mortgages  which  the  rode  makes 
binding  on  the  homestead:  mortgage  of  the 
premises  before  their  selection  as  a  homestead, 
and  a  subsequent  mortgage  in  which  both  hus- 
band and  wife  join:  See  sec.  1241,  subd.  3,  4. 

Mortgages  before  the  selection  of  tlie  prem- 
ises as  a  homestead  have  been  sustained  in  Rix 
V.  Mcllenry,  7  Cal.  89;  La-s.ten  v.  Vcuice,  8  Id. 
271,  where  the  deed  of  purchase  and  mortgage 
to  the  vendor  were  held  to  be  simultaneous; 
Montijormry  v.  Tutt,  11  Id.  19i;  Graham  v. 
Oviall,  58  Id.  42S;  Shinn  v.  Macphcrsoii.  Id.  590. 

Mortgages  alter  the  homestead  rights  liave 
attacheil  have  been  held  invalid  as  being  made 
by  the  husband  alone,  in  Domey  v.  M<Farluiid, 
7  Cal.  342;  llccalk  v.  Kraemer,  8  Id.  66;  Van 
Beyiiei/(ui  v.  Jievalk,  Id.  75;  Conk  v.  K/iiik,  Id. 
347;  Mofts  v.  Warner,  10  Id.  290;  Barber  v. 
Bnbel,  30  Id.  1 1 ;  Lies  v.  DeDinblar,  12  Id.  327; 
Sears  v.  Dixon,  33  Id.  117.  As  to  the  validity 
of  moitgage,  under  the  act  of  1^0,  to  secure 
the  paynunt  of  tlie  purchase  money,  see  Peter- 
BOH  V.  JIuri.bloirer,  33  Id.  266.  It  is  to  be  noted 
that  under  the  act  of  1851,  prior  to  its  amend- 
m.;ut  in  1800,  a  mortgage  by  the  husband  alone 


bound  the  premises  to  the  extent  of  their  ■value 
in  excess  of  the  homesteail  riglit:  Btxcinan  v, 
Xortoii,  10  Id.  213;  aee  Mos^  v.  Wnmer,  10  Id. 
290.  \Vhetli<^r  this  would  be  so  held  no-w,  see 
Miirbury  v.  Ruiz,  58  Cal.  11.  A  husband's  re- 
newal, after  the  tleclaration  of  homestead,  of  a 
note  and  mortgage  given  before,  docs  not  con- 
tinnc  the  original  mortgage  as  against  the  home- 
stead: Barber  \.  Bubel,  30  Id.  11.  Where  in- 
termediate between  a  tirst  and  second  mort- 
gage, a  declaration  of  homestead  was  tiled,  held 
that  tlie  homestead  took  preceiieuce  over  a  de- 
ficiency ill  the  second  foreclosure  proceedings; 
llershi^y  v.  DeiniM,  53  LI.  77-  As  to  the  etiecb 
upon  tiie  homestead  rights  of  substituting  one 
mortgage  for  another,  see  Carr  v.  Caldicell,  10 
Id.  380. 

Mortgages  by  the  husband  and  wife  bind  the 
homestead:  Peterson  v.  Jlonibloirer,  33  Cal. 
200;  Gluckaii/v.  Uiiven,  23  Id.  312.  As  to  the 
invalidity  of  a  j(,'int  mortgage  of  tlie  lumu  stead 
under  the  act  of  1800,  except  when  given  to 
secure  the  purchase  money,  see  Bowman  v. 
Norton,  16  Id.  213.  In  a  mortgage  of  the 
homestead,  the  premi.ses  need  not  be  described 
as  a  homestead:  Pj'eiffer  v.  Reikn.  13  Id.  043. 

If  a  mortgage  is  given  u[ion  premises  out  of 
which  a  homestead  has  l)een  selected,  and  the 
deed  expressly  reserves  the  value  of  the  home- 
stead from  the  mortgage,  the  fact  that  the  dec- 
laration of  homestead  is  invalid  w  ill  not  pre- 
vent the  courts  from  effectuating  the  intention 
of  the  parties  by  reserving  for  the  grantor  tho 
value  of  the  sui>posed  homestead:  Groyan  v. 
Thrift,  58  Cal.  378. 

It  has  been  said  that  the  fraudulent  act  of 
the  husband  cannot  prejudice  the  rights  of  the 
wife  in  the  homestead:  Jlarber  v.  Babel,  30 
Cal.  11;  but  this  principle  will  not  be  applied 
to  the  ptotection  of  the  homestead  I'iglit  whifh 
the  fraudulent  act  of  the  husband  has  rendered 
more  valuable  by  clearing  off  a  prior  mortgage, 
where  the  revival  of  the  mortgage  will  not 
make  worse  the  position  of  tlie  wile,  when  the 
homestead  right  was  acquired,  and  will  do  jus- 
tice to  the  parties  whose  money  has  been  wrong- 
fully used  in  paying  off  the  mortgage:  Skinn 
V.  Macpherson,  58  Id.  598. 

The  question  of  homestead  right  may  be 
raised  by  the  wife,  in  foreclosure  proceedings  to 
which  she  was  not  made  a  party,  by  liliug  a  pe- 
tition of  intervention:  Marbiiry  v.  liuiz,  58  Cal. 
11.  The  question  cannot  be  raised  on  a  motion 
to  set  aside  the  sale,  either  iiy  husband  or  by 
the  wife:  Gnok  v.  Klink,  8  Id.  347. 

Whether  the  mortgage  of  a  homestead  can  be 
executed  by  attorney,  see  LaujhLn  v.  Wriyht, 
63  CaL  313. 


1243.    JIow  abandoned. 

Sec.  12-13.     A  homestead  can  be  abandoned  only  by  a  declaration  of  aban- 
donment, or  a  grant  thereof,  executed  and  acknowledged: 

1.  C}'  the  husband  and  wife,  if  the  claimant  is  married; 

2.  By  the  claimant,  if  unmarried. 

Abandonment  of  homestead. — A  convey-         Voluntary  removal  from  the  premises  does 


absolute  is  an  abandonment  of     not   destroy    the    homcslead:    IJo'den   v.    Pin- 


the  honusti-ad:  .lohnnton  v.  Bush,  49  Cal.  198. 
The  con\eyaiice  alisolute  in  form,  but  intended 
as  a  mortgage  merely,  is  an  abandonmi-nt  as  to 
innocent  iiarclwsers:  Mnbnry  v.  Rk.z,  58  Id. 
11.  The  Jselliig  an  undivided  portion  works 
an  abandoiimctit  of  the  homestead:  Kellers- 
beruer  v.  Kopp,  0  Id.  503. 


}tey,  6  Cal.  234;  Tay'or  v.  //'iryoux,  4  Id. 
268;  not  even  after  a  separate  sale  by  the 
husband:  Taylor  v.  llarjoii-<,  su/,ra.  A 
homeste;.d  is  not  abandoned  by  the  removal  of 
the  husband  with  his  family  and  living  else 
where,  when  there  is  an  intention  to  return 
later,  and  make  it  their  home:  See  the  (acts  ia 


233 


53  12U-12G0  ACQUISITION  OF  PROPERTY.  [Div.  II,  Pabt  IV, 

this  case,  Porter  v.   Chapman,  3  West  Coast  v.   Wallace,  25  Id.  108;  and  compare  Law/hlin 

Kep.   204.     The  fact  that  both  husband  and  v.    Wr/ij/d,   G.'J  Id.    113.     The   wife's  adultery 

wite  were  anxious  to  sell  their  homestead,  and  and    desertion    do    not   impair   the   homestead 

the  husbaiid    made   repeated  eflbrts  tor  that  right:  Lies  v.  l)e  Dinltlar,  12  Id.  327. 
purpose,  is  not  evidence  that  he   intended  to         The    acceptance     by    the    widow   of    letters 

abandon     the     homestead    as    such:    Dunn  v.  testamentary,  and  the  fact  tliat  she  was  by  the 

Tozer,  10  Cal.    107.     The  husband's  residence  will  made  a  residuary  legatee,  do  not  show  that 

is  tlie  wife's  residence;   so  his  removing  from  she  waived    her  right  to  have  a  homestead  set 

the   pi-eniises,    thereby  com[)eIling    her  to  re-  apart  by  the  probate  court:  Salz'jtr<jer  v.  Sulz- 

movc,  may  not  indicate  her  design  to  abandon  beri/er,  50  Cal.  3S5. 

the  homestead:  Gu'ud  v.    Guiod,    14  Id.  bd'i;         A   homestead   was   destroyed   in  Carroll  v. 

see,  how  ever,  removal  as  evidence  of  abandon-  EU'ih,  6.5  Cal.  440,  by  a  conveyance  of  an  un- 

inent:  Harprr  v.  Forbea,  15  Id.  202;  JJreiman  divided  moiety  to  a  third  person. 

1244.  Saim. 

Sec.  12-14.  A  declaration  of  abandonmeut  is  effectual  only  from  the  time  it 
is  liled  ill  the  office  in  which  the  homestead  was  recorded. 

1245.  Proceedings^  on  execution  against  homestead. 

Sec.  1215.     When  an  execution  for  the  enforcement  of  a  judgment  obtained 

in  a  case  not  within  the  classes  enumerated  in  section  twelve  hundred  and 

forty-one  is  levied  uj)on  the  homestead,  the  judgment  creditor  may  apply  to 

the  superior  court  of  the  county  in  which  the  homestead  is  situated  for  the 

iipiioiutment  of  persons  to  apjDraise  the  value  thereof.     [Amendment,  approved 

April  G^  1880;  Amendments  1880,  7  {Ban.  ed.  126);  took  effect  immed lately.] 

Appraising  value  of  homestead. — "There  and  carrying  on  proceedings  to  have  an  ap- 
is bat  one  method  of  ascertaining  whether  praisenient  and  sale  under  tlie  statute.  There- 
-the  property  claimed  as  a  homestead  is  uf  a  lore  a  creilitor  believing  the  property  declared 
value  exceeding  five  thousand  dollars,  and  as  a  homestead  to  be  of  grea;er  value  thai  five 
Avhether  there  be  any  surplus  for  creditois.  thousand  dollars  should  have  his  execution 
"*  *  *  Untd  such  ascertainment  the  levied  upon  the  property  as  a  founditiim,  and 
property  covered  by  the  declaration  is  exempt  then  proceed  as  indicated"  in  the  other  sections 
from  execution  or  forced  sale.  There  is  no  lien  of  this  chapter:  Barrett  v.  Siinti,  59  Cal.  615, 
(if  the  judgment  until  the  levy  of  an  execution;  G19. 

and   that  ie\y  creates  no  lien  except  for  the         Value  of  homestead:   See  sec.  12G3,  and 

purpose  of,  and  as  a  foundation  for,  instituting  note. 

1246.  Verified  petition. 

Sec  124G.     The  application  must  be  made  upon  a  verified  petition,  showing: 

1.  The  fact  that  an  execution  has  been  levied  upon  the  homestead; 

2.  The  name  of  the  claimant; 

3.  That  the  value  of  the  homestead  exceeds  the  amount  of  the  homestead 
exemption. 

1247.  Fell! Ion,  where  filed. 

Sec.  12-17.  The  petition  must  be  filed  with  the  clerk  of  the  superior  court. 
\  Amendment,  approved  Aprd  G,  1880;  Amendments  1880,  8  {Ban.  ed.  12G);  took 
effect  immediati  Ig.] 

1248.  Notice. 

Sec.  1248.  A  copy  of  the  petition,  with  a  notice  of  the  time  and  place  of 
hearing,  must  be  served  upon  the  claimant,  at  least  two  days  before  the  hearing. 

1249.  Ilearinig  and  appointment  of  appraiser. 

Sec  1249.  At  the  hearing  the  judge  ma}',  upon  proof  of  the  service  of  a  copy 
of  the  petitioji  and  notice,  and  of  the  facts  stated  in  the  i3etiI:ion,  appoint 
three  disinterested  residents  of  the  county  to  apj^raise  the  value  of  the  home- 
stead. 

1250.  Gath  (f  appraiser. 

S;;c.  1230.  The  persons  appointed,  before  entering  upon  the  performance  of 
theii"  duties,  must  take  an  oath  to  faithfully  peri'orm  the  same. 

23-4 


Title  V,  CiiAr.  I.]  GENERAL  PROVISIONS.  §§  1251-1261 

1251.  Vii'iv  of  ])rrmi>es. 

Sec.  1251.  They  must  view  the  premises  and  appraise  the  value  thereof,  and 
if  the  appraised  value  exceeds  the  homestead  exemption,  they  must  determine 
"whether  the  land  claimed  can  be  divided  without  material  injur3\ 

1252.  Report  of  appraisers. 

Sec  1252.  Within  fifteen  days  after  their  appointment  they  must  mate  to  the 
judge  a  report  in  writing,  which  report  must  show  the  appraised  value  and  their 
determination  upon  the  matter  of  a  division  of  the  land  claimed. 

1253.  Division  rf  property,  when. 

Sec  1253.  If,  from  the  report,  it  appears  to  the  judge  that  the  land  claimed 
can  be  divided  without  material  injury,  he  must,  by  an  order,  direct  the  ap- 
praisers to  set  off  to  the  claimant  so  njuch  of  the  land,  including  the  residence, 
as  will  amount  in  value  to  the  homestead  exemption,  and  the  execution  may  be 
enforced  against  the  remainder  of  the  laud. 

1254.  Sale,  when. 

Sec  1254.  If,  from  the  report,  it  appears  to  the  judge  that  the  land  claimed 
exceeds  in  value  the  amount  of  the  homestead  exemption,  and  that  it  cacnot  be 
divided,  he  must  make  an  order  directing  its  sale  under  the  execution. 

1255.  nids. 

Sec  1255.     At  such  sale  no  bid  must  be  received,  unless  it  exceeds  the  amount 

of  the  homestead  exemption. 

1256.  Application  of  proceeds  of  sale. 

Sec  125G.  If  the  sale  is  made,  the  proceeds  thereof,  to  the  amount  of  the 
homestead  exemption,  must  be  paid  to  the  claimant,  and  the  balance  applied  to 
the  satisfaction  of  the  execution. 

1257.  Money  resulting  from  execution  sale  protected. 

Sec  1257.  The  money  paid  to  the  claimant  is  entitled,  for  the  period  of 
six  months  thereafter,  to  the  same  protection  against  legal  process  and  the  vol- 
untary disposition  of  the  husband,  which  the  law  gives  to  the  homestead. 
\ Amend me)it,  approved  IJarch  30,  187-4;  Amendments  1873—4,  230;  took  effect 
July  1,  1874.] 

1258.  Compensation  of  appraisers. 

Sec  1258.  The  court  must  fix  the  compensation  of  the  appraisers,  not  to 
exceed  five  dollars  per  day  each  for  the  time  actually  engaged. 

1259.  Costs. 

Sec  1250.  The  execution  creditor  must  pay  the  costs  of  these  proceedings 
in  the  first  instance;  but  in  the  cases  provided  for  in  sections  twelve  hundred 
and  fifty-three  and  twelve  hundred  and  fifty-four  the  amount  so  paid  must  be 
added  as  costs  on  execution,  and  collected  accordingly. 

1260.  Who  may  select  homestead,  value  of 

Sec  12G0.     Homesteads  may  be  selected  and  claimed: 

1.  Of  not  exceeding  five  thousand  dollars  in  value  by  any  head  of  a  family; 

2.  Of  not  exceeding  one  thousand  dollars  in  value  by  any  other  person. 
Estimate  of  Vcdue:  See  sec.  120.1,  infra. 

Place  of  recording:  See  sec.  12G4,  infra. 

1261.  Bead  of  a  family  defined. 

Sec.  12G1.  The  phrase  "  head  of  a  family,"  aa  used  in  this  title,  includes 
within  its  meaning: 

235 


§  12S1  ACQUISITION  OF  PROPERTY.  [Div.  II,  Part  IV, 

1.  The  liuabaud,  wlien  the  claimtint  is  a  married  person; 

2.  Every  person  who  has  residing  on  the  premises  with  him  or  her  and  under 
his  or  her  care  and  maintenance,  either:    , 

1.  His  or  her  minor  child,  or  the  minor  chihl  of  his  or  her  deceased  wife  or 
husband; 

2.  A  minor  brother  or  sister,  or  the  minor  child  of  a  deceased  brother  or 
sister; 

3.  A  father,  mother,  grandfather,  or  grandmother; 

4.  Tha  father,  mother,  grandfather,  or  grandmother  of  a  deceased  husband 
or  wife ; 

5.  An  unmarried  sister,  or  any  other  of  the  relatives  mentioned  in  this  sec- 
tion who  have  attained  the  age  of  majority,  and  are  unable  to  take  care  of  or 
support  themselves.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  --IJO;  took  effect  Jidy  1,  1874.] 

Hs'd  of  famUy — An  individual,  whethef  homestead  under  the  general  homestead  act: 

married  or  not,  may  lie  the  liend  of  a  faniilj':  y/.V/ //'».-•  v.  i/i'j(jins,  4(5  Id.  •2.')0. 

Heixdlc  V.  Kraeiiwr,  8  Gal.    63;    an  unmarried  lJn<!tT  the  act  of  1832,  declaring  that  an  un- 

woman  with  wii.nn  lives  a  bastard  child  may  married  person  was  not  entitled  to  select  or 

select  a  hom-js:ea<l:    E/'U  v.  White,  47  Id.  73;  lioi  1  a  ho.nestead  unless  such  person  had  the 

a  mill  tti"  may  t;ikc  the  benefit  of  the  statute:  care  and   maintenance  of  a  minor  child,    the 

Williain.-<  V.    You:'ij,   17   Id.  403;   a  widow  to  homestead  ceases  on  the  child's   becoming  of 

whom  the  probate  court  has  set  apa  t  a  home-  a;^e:  S'lnta  Cruz  Bank  v.  Cooper,  56  Id.  339. 
stead  may,  on  her  rciuarriage,  claim  a  second 

A7i  Act  to  enable  certain  parties  therein  named  to  alienate  or  incumber  homesteads, 
[Approved  March  25,  1874;  18T3-4,  C82.] 
Alienation  of  liomeMcad. 

Skction  I.  In  case  of  a  homestead,  if  either  the  husband  or  wife  shall  become  hopelessly 
insane,  upon  a:'>plicati()n  of  tlie  iiusband  or  wife,  not  in.sane,  to  the  probate  court  of  the  county 
in  wliicii  said  lioinestead  is  situated,  and  upon  <lue  jiroof  of  sucii  insanity,  the  court  may  make 
an  oi'der  purmitiing  the  husband  or  wife,  not  iusaue,  to  sell  and  convey,  or  mortgage,  such 
homestead. 
Notire  nf  npyiVirniion. 

Sec.  2.  Notice  of  the  application  for  such  order  shall  he  given  by  publication  of  the  same, 
in  a  newspapf  r  pul)lished  in  the  county  in  which  sucli  homestead  is  situated,  if  there  be  a  news- 
paper published  tiierein,  once  each  wei^k  lor  tiiree  successive  weeks,  prior  to  the  hearing  of  such 
application,  ami  a  copy  of  such  notice  shall  also  l)e  ser\ed  upon  the  neare^t  male  relative  of  such 
iusaue  iiusband  or  wife,  resident  in  this  state,  at  least  tlii'ee  weeks  \mor  to  suc!i  application;  and 
in  case  thire  be  no  such  male  relative  know  n  to  tiie  applicant,  a  copy  of  such  notice  siiall  be 
served  upon  the  jiuMic  administrator  of  the  covnity  in  which  such  licnestea  1  is  situated;  and  it 
is  hereby  made  the  duty  of  sucii  public  adiuiuistrator,  upon  l)eing  served  with  a  copy  of  such 
notice.  t<>  appear  in  court  and  see  that  such  application  is  made  in  good  faith,  and  that  tlie  pro- 
ceedings thereon  are  fairly  conducted. 
Petition, 

Skc.  3.  Tliirty  days  before  the  hearing  of  any  application  under  the  provisions  of  this 
act,  tlie  applicant  sliall  present  and  file  in  tlie  court  in  whicli  such  application  is  to  be 
heard  a  petition  for  tiie  order  mentioned  in  tlie  first  section  of  this  :ict,  subsciii)ed  and  sworn 
to  by  the  applicant,  setting  forth  the  name  and  age  of  thj  insane  hnsijaud  or  wife;  the  number, 
age,  and  sex  of  the  children  of  sucii  insane  husband  or  wife;  a  description  of  the  premises  consti- 
tuting the  lioiiiestead;  tiie  value  of  the  same;  tlie  county  in  wliich  it  is  sitiiate<l;  and  sucli  facts  in 
addition  to  that  of  tlie  insanity  of  tlie  husband  or  wife  relating  to  the  circumstances  and  neces- 
sities of  the  applicant  and  his  or  her  family  as  he  or  she  may  rely  upon  in  support  of  the 
petition. 
Order  awl  effrel. 

Skc.  4.  If  the  court  shall  make  the  order  provided  for  in  the  first  section  of  this  net.  the 
Bame  shall  be  eiit(-reil  upon  the  minutes  (jf  tne  co  irt,  and  thereafter  any  sale,  conveyance,  or 
niortga':;e  made  in  jnirsuance  of  such  onler  sh.ill  be  as  valid  and  effectual  as  if  tlie  property 
affecteil  tlvreby  was  the  absolute  property  of  the  person  making  such  sale,  conveyance,  or 
mortgage,  in  fee-8ini[)le. 
Feen. 

Skc.  f)  For  all  services  rendered  by  any  public  administrator  under  the  provisions  of  this 
act  he  shall  h<i  allowed  a  fee  not  exceeding  twenty  dollars,  to  be  fixed  liy  the  court,  and  the 
same  sliall  be  taxuti  as  costs  against  the  person  making  application  for  the  order  herein  provided 
for. 

Sec.  6.  All  acts  and  parts  of  acts  in  conflict  with  the  provisions  of  this  act  are  hereby 
rejiealed. 

S£U.  7.     This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

236 


465.     Tenure   by  Which    Homestead    Is   Held.     Fi'om   and 
r  the  time  the  declaration  is  filed  for  record,   the  prem- 
tlierein  described  constitute  a  homestead.     If  the  selec- 
was    made    by   a   married    person    from    the    community 
lerty,   [or  from  the  sepai-ate  property  of  the  spouse  mak- 
the   selection   or  joining-  therein],    the   land    [so   selected! 
he  death  of  either   [spouse],   vests  in  the  survivor,   sub- 
to    no   other   liability   than    such   as   exists   or   has   been 
ted    under    the    provisions    of    this    title;    in    other    cases, 
I   the   death   of   the   person  whose   property  was   selected 
homestead,   it  shall  go   to  his  heirs  or  devisees,   subject 
le  power  of  the  superior  court  to  assign  the  same  for  a 
ed    period    to    the    family    of    the    decedent;    but    in    no 
shall  it  be  held  liable  for  the  debts  of  the  owner,  except 
rovided  in  this  title.     (In  effect  60  days  from  and  after 
ll  16,   1909.     Stats.   1909,   Chap.   6.37.)  Civ.   Code,   1909. 


Title  V,  Cuap.  II.  J    HOMESTEAD  OF  THE  HEAD  OF  A  FAMILY.  §§  1262-1265 

CHAPTER  II. 

HOMESTEAD  OF  THE  HEAD  OF  A  FAMILY. 

1262.  Mode  of  selection. 

ycc.  12G2.  In  oyder  to  select  a  homestead,  the  husband  or  other  head  of  a 
fanjily,  or  in  case  the  husband  has  not  made  such  selection,  the  wife,  must 
execute  and  acknowledge,  in  the  same  manner  as  a  grant  of  real  property  is 
acknowledged,  a  declaration  of  homestead,  and  file  the  same  for  record. 
[Anendment,  approved  March  30,  1S74;  Amendments  1873-4,  230;  took  effect  July 
1,1874  I 

DGclaraticu  of  homestead:  See  next  sec-  197.     And    such    declaration    by    a    married 

tio  1  and  note.  wnman  ii  valiil  although  lier  iiasl)and  does  not 

Selcotiou  by  vnfe:    See  sees.   123S,  1239,  reside  on  the  premises:  Gambetle  v.  Brork,  41 

an'i'.  Id.  78.     The  wife  must  state  in  her  deciaratioa 

Place  of  recording:  See  sec.  1204,  vifra.  that  the  luishand  has  failed  to  make  t!ie  dcclara- 

■Wliero  the  wife  selects  tlie  homestead  tii)n,  and  that  tlierefore  she  makes  it:  Booth  v. 

she  njay  aciiuowledge  the  declaration   in   t!ie  Ga't.  OH  Id.  254. 

samemanncr  usis  )jrovided  fortheackuow'.edg-  With  resp3Ct  to  homest'^ada  under  tha 

ment  of  conveyances  of  real  property  Ijy  per-  act   of    1351,   an  I    t!ie    necessity   for    filing 

sons  other  than  married  women:  Cii'meiitx  v.  declarations  under  the  act  of  18G0,  see  J/c(>(i"(/e 

Stdutoii,  47  Cal.  GO.     A  deputy  clerk  may  take  v.   Whali'y,  31  Cal.  520;  Noble  v.  Ilook,  24  Id. 

the  acknowledgment:  Emmal  v.  Webb,  38  Id.  638;  Eiley  v.  FM,  23  Id.  70. 

1263.  Declaration,  ivhat  to  contain. 

Sec.  12G3.     The  declaration  of  homestead  must  contain: 

1.  A  statement,  showing  that  the  person  making  it  is  the  head  of  a  family; 
or,  when  the  declaration  is  made  by  the  wife,  showing  that  her  husband  has  not 
made  such  declaration,  and  that  she  therefore  makes  the  declaration  for  their 
joint  benefit; 

2.  A  statement  that  the  person  making  it  is  residing  on  the  premises,  and 
claims  them  as  a  homestead; 

3.  A  description  of  the  premises; 

4.  An  estimate  of  their  actual  cash  value.     [Amendment,  approved  March  30, 

1874;  Amendments  1873-4,  231;  took  effect  July  1,  1874.] 

Head  of  a  famay:  See  sec.  12C1,  a»/e.  dollars:  Ham  v.  Sitnta  Horn  Bank,  62  Id.  125, 
Res:'denGe  necessary:  See  sec.  1237,  and  the  opinion  in  bank;  Tieman  v.  His  Creditors, 
note;  and  the  declaration  of  homestead  must  Id.  288.  "  The  cash  value  of  tiie  said  above- 
state  that  the  declarant  is  residing  on  the  described  premises  is  three  thousand  dollars," 
homestead  at  the  time:  Babcock  v.  Oibb",  52  is  a  sufficient  compliance  with  subdivision  4 
Ca!.  G29;  and  so  Dorn  v.  Howe,  Id.  630.  of  this  section:  Head  v.  lUihm,  3  West  Coast 

i:st:mate  of  the  actual  cash  value.— This  Hep.  150. 
eubdi\ision  must  be  complied  with:  Ashley  v.        Description. — It  is  not  necessary  that  the 

OlniKti-ait,  54  Cal.  616;  Ames  v.  Eldn-d,  55  Id.  descri|)tion  of  land  in  a  homestead  deciaratioa 

130,    wliere    the    estimate    in    the    following  should  be  more  particular  than  in  a  conveyance: 

language  was  pronounced  insufficient:  "That  Ornhaum  v.   Crcdilori,  61   Cal.  455.     Tnat  it 

theactual  cash  valueis  five  thousand  dollars  and  may  include  more  than  one  lot:  8eel>l. ;  Mc- 

over."     It  does  not  vitiate  the  declaration  that  Donald  v.  Bad</er,  23  Id.  393;  EiKjltbreclU  v. 

the  valueisestimatedatmorethanfive  thousand  Shade,  47  Id,  627. 

1224,    Declaration  must  he  recorded. 

Sec.  12G4.  The  declaration  must  be  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  the  land  is  situated. 

1265.    Tenure  by  which  homestead  is  held. 

Sec  12G5.  From  and  after  the  time  the  declaration  is  filed  for  record,  th» 
premises  therein  described  constitute  a  homestead.  If  the  selection  was  made 
by  a  married  person  from  the  community  property,  the  land,  on  the  death  of 
either  of  the  spouses,  vests  in  the  survivor,  subject  to  no  other  liability  than 
such  as  exists  or  has  been  created  under  the  provisions  of  this  title;  in  other 
nases,  upon  the  death  of  the  person  whose  property  was  selected  as  a  home- 

237 


§§  1265-1269 


ACQUISITION  OF  PROPERTY. 


[Div.  II,  Part  IV, 


stead,  it  shall  go  to  his  heirs  or  devisees,  subject  to  the  power  of  the  superior 
court  to  assign  the  same  for  a  limited  period  to  the  family  of  the  decedent;  but 
in  no  case  shall  it  be  held  liable  for  the  debts  of  the  owner,  except  as  pro- 
vided in  this  title.  [Amendment,  approved  April  6,  1880;  Amendments  1880,  8 
{Ban.  ed.  12G);  look  effect  immedlalehj.] 


This  amendment  substituted  the  words 
"superior  court"  for  "  probate  court." 

To  ■whom  homestead  descends. — Cotn- 
pare  this  section  witli  section  1474,  Code  Civ. 
Proc.  If  selected  from  the  community  pro[)- 
erty,  the  homestead,  upon  the  death  of  either 
spouse,  vests  in  the  survivor:  Mawsoii  v.  Maio- 
son,  50  Cal.  539;  Gaiillardo  v.  Damon t,  54  Id. 
496;  Estate  of  Ihaiini,  52  Id.  295;  Jlerrold  v. 
Been,  5S  Id.  443;  L'ich  v.  Tubb.%  41  Id.  34. 
This,  where  the  deceased  spouse  died  since  the 
passage  of  the  act  of  1862.  Under  the  act  of 
1860  the  cliildren  liad  an  interest  in  the  home- 
stead upon  the  death  of  either  parent,  but  that 
act  was  amended  in  1862  so  as  to  change  the 
order  of  descent,  and  vest  the  homestead  in 
the  surviving  sixmse:  See  IJerrold  v.  Iieen, 
8upr<i;  Rich  v.  7\ibb-<,  mi-pra. 

The  act  of  1862  provided  that  the  survivor 
should  iiold  the  title  to  the  homestea<l  "as 
fully  and  amply  as  the  same  was  held  by  "  the 
husband  ami  wife,  or  either  of  them,  immedi- 
ately preceding  tiie  death  of  the  deceased 
spouse.  Under  this  provision  the  survivor  may 
niortLage  the  homestead:  Ilerruld  v.  licen, 
58  Cal.  443.  The  homestead  vested  aljsolutely 
in  the  survivor:  W'atnon  v.  Ills  Creditor^,  I  1. 
556.  Tliis  right  was  so  determined,  notwith- 
standing tlie  dc;claration  of  homestead  was  filed 
under  tlie  act  of  1860,  which  named  the  chil- 
dren as  successors  in  interest  of  the  deceased 


spouse,  it  appearing  that  the  death  did  not 
occur  untU  alter  the  amendment  changing  the 
order  of  descent:  Ilerruld  v.  Reen,  supra. 

That  the  homestead  is  liable  for  the  debts  of 
the  husband  contracted  after  the  death  of  the 
wife  is  held  in  Watxon  v.  CredUoro,  58  Cal, 
56-"),  where  the  declaration  was  filed  Au- 
gust 6,  1872,  and  the  wife  died  December  31, 
1876.  The  claim  that  after  the  death  of  the 
wife  the  husband  held  the  property  as  a  home- 
stead for  himself  and  children  was  not  recog- 
nized by  the  court  in  tliat  case.  N^r  was  the 
question  affected  by  the  fact  that  the  probate 
court  set  apart  the  property  as  a  homestead  for 
tiie  benefit  of  the  husband  and  cliildren. 

Nature  of  the  homestead  estate. — The 
homestead  is  a  sort  of  joint  tenancy,  with  the 
right  of  survivorship,  at  least  as  between  hus- 
band and  wife,  and  this  estate  cannot  be  altered 
or  destroyed  except  by  the  concurrence  of  both 
in  the  manner  proviiled  Ijy  law:  Tai/lor  v.  Jfar- 
ijona,  4  Cal.  273;  Poole  v.  (lerrnrd,  6  Id.  71; 
I'eva'kv.  Kraemer,  8  Id.  66;  Bnrhaiiaii\s  Estate, 
Id.  507;  Tompkins's  Estate,  12  Id.  114,  125. 
And  although  the  joint- tenancy  view  wan  de- 
nied in  Gee  v.  Moore,  14  Id.  472;  Ouoil  v. 
(Iniod,  Id.  506;  Bonmian  v.  Norton,  16  Id. 
213;  Brennan  v.  Wallace,  25  Id.  1 14,  it  was  in- 
corporated in  the  subaeTuent  legislative  enact- 
ments of  the  state,  and  advanced  and  main- 
tained in  Barber  v.  Babel,  33  Id.  16. 


CHAPTER  IIL  , 

HOMESTEAD  OF  OTHER   PERSONS. 

1266.   Mode  of  selection. 

Sec.  12GG.  Any  person  other  than  the  head  of  a  family,  in  the  selection  of  a 
homestead,  must  execute  and  acknowledge,  in  the  same  manner  as  a  grant  of 
real  property  is  acknowledged,  a  "declaration  of  homestead." 


"The act  of  March  .30,  1860 (Stats.  1860,  87), 
in  relation  to  homesteads  of  persons  not  heads 
of  families,  provided  a  cumbrous  and  e.K[ tensive 
system  for  the  selection  of  such  homeste.ids. 
The   commissioners    could  see  no  reason   for 


making  a  distinction  in  thia  re.spect  between 
the  two  classes  of  homestfads,  and  tlierefore 
substituted  the  provisio  la  of  tiiis  ch.-vpter  for 
thodcof  the  act  of  18G0:"  Commissioners'  note. 


1267.  Declaration  of  homestead. 

Sec.  12G7.     The  declaration  must  contain  everything  required  by  the  second, 
third,  and  fourth  subdivisions  of  section  twelve  hundred  and  sixty- three. 

1268.  Declaration  must  be  recorded. 

Sec.  12G8.     The  declaration  must  be  recorded  in  the  olTiee  of  the  county 
recorder  of  the  county  in  which  the  laud  is  situated. 
Pol.  Code,  sec.  4235. 

1269.  Effect  of  fling  for  record  the  declaration  of  homestead. 

Sec.  12G9.     From  and  after  the  time  the  declaration  is  filed  for  record,  tho 
land  described  therein  is  a  homestead. 


2.'i8 


Thxs  VI,  Chap.  I.]    EXECUTION  AND  REVOCATION  OF  WILLS.  §§  1270-1275 

TITLE  VI. 

WILLS. 

ChAPTEB   I.       EXECITTION   AI?D   REVOCATION    OF   "WiLLS 1270 

II.     Intekpretation  of  Wills 1317 

in.     General  Pkovistons  Relating  to  Wills 1357 

CHAPTER  I 
EXECUTION  AND  REVOCATION  OP  WILLS. 

1270.  Who  may  make  a  will. 

Sec.  1270.     Every  person  over  the  age  of  eighteen  years,  of  sound  mind, 

may,  by  last  ■will,  dispose  of  all  his  estate,  real  and  personal,  and  such  estate 

not  disposed  of  by  will  is  succeeded  to  as  provided  in  Title  VII.  of  this  part, 

being  chai'geable  in  both  cases  with  the  payment  of  all  the  decedent's  debts,  as 

provided  in  the  Code  of  Civil  Procedure. 

Stats.  ]i5  ),  p.  177,  sec.  1.  Validity  of  ■will:  See  sections  on  execution 
Vviils  of  married  -women:  See  sec.  1273.  of  wills,  sec.  1276,  and  note,  sec.  1376.  Juris- 
Wills  of  unmarried  -women  revoked  by  diction  to  try  validity  of  will  rests  in  the  pro- 
marriage:  SfC.  1300,  infra.  bate  courts:  CriMro  v.  Iiicfiardson,  ISCal.  478; 
Unsound  mind:  See  the  note  in  Bigelow's  State  v.  MrGlynn,  20  Id.  233;  and  its  decrees 
edition  of  Jarinau  on  Wills,  1  vol.,  sees.  .38  et  are  conclusive:  LI. 

Beq.     The  person  alleging  unsoundness  of  mind  What  is  a  testament:  See  Code  Civ.  Proc, 

must  prove  it:  Panaud  v.  Jones,  1  Cal.  488.  sees.  1312  and  1305,  iu  notes. 

1271.  Monomaniac  incompetenl. 

Section  1271  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  232;  took 
efifect  July  1,  1874. 

1272.  Will,  or  part  thereof,  procured  by  fraud. 

Sec  1272.  A  will,  or  part  of  a  will,  procured  to  be  made  by  duress,  menace, 
fraud,  or  undue  influence,  may  be  denied  probate;  and  a  revocation,  procured 
by  the  same  means,  may  be  declared  void. 

Undue  iiiSuence. — Evidence  that  the  tes-  isted,  far  less  ■vnll  have  to  be  shown  to  make 

tator  was  into.xicated  at  the  time  of  the  execn-  out  undue  influence  than  in  other  cases:  Meek 

tion  of  tlie  will  i.s  admissible  in  connection  with  v.  Perry,  36  Miss.  190;  Uarvcy  v.  Sidhns,  46 

other  ciicuiiistances,  to  show  undue  iniluence:  Mo.    147;  Boyil  v.  Boyd,  06  Pa.  St.  283.     See 

Edate  of  (i'7iiiit'uijham,  52  Cal.  465.     Declara-  also  1  Rcdf.  on  Wills,  518  et  seq. 

tiona  of  the  testator  at  the  time  of  the  execu-  See  the  note  to  Small  v.  Small,  16  Am.  Dec 

tion  of  the  instrument  are  also  evidence  in  a  257. 

case  of  contest  on  the  ground  of  undue  influ-  Framing    the    issue. — As    to    the    proper 

ence,  as  In-iiig  part  of  the  jt?  gestae:  Nelxon  v.  mode  of  submitting  the  issue  of  unsoundness  of 

McClauahini,  5.')  Id.  308.     For  a  collection  of  mind  arising  from  undue  influence,  duress,  etc., 

cases    ami    delinition    of    "undue   influence"  see  EMate  of  Gharky,  57  Cal.  274;  and  gen- 

under    various    circumstances,    see    the    note  erally  as  to  the  framing  of  issues  in  a  contested 

"What  influence  or  importunity  invalidates  a  ■will  case,  see  Estate  of  Carffry,  56  Id.  470. 

will,"  10  Am.  Dec.  257  et  seq.  Undue  influence  as  affecting  contracts: 

Althougli  tjie  fact  tliat  the  principal  henefi-  See  post,  sec.  1575. 

ciary  under  a  will  was  a  partner  of  the  testa-  Revocation  of  vtHI-.  Sec.  1202.  poxt. 

tor  does  not  per  se  raise  the  presumption  of  Contesting  probate  of   ■will:    Code   Civ. 

undue  influence.  Estate  of  Brooks,  54  Cal.  471,  Proc,  sees.  1312  et  seq. 
yet  where  such  confidential  relations  have  ex- 

1273.  Married  woman  may  dispose  of  separate  estate  by  will. 

Sec.  1273.  A  married  woman  may  dispose  of  all  her  separate  estate  by  will, 
without  the  consent  of  her  husband,  and  may  alter  or  revoke  the  will  in  like 
manner  as  if  she  were  single.  Her  will  must  be  executed  and  proved  in  like 
manner  as  other  wills.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  232;  look  effect  July  1,  1874.] 

"Will  of  married  ■woman.— In  the  original  ner  as  all  other  ■wills."  The  amendment  ■was 
section  the  last  sentence  read:  "Her  will  must  adojjted  on  the  recommenilation  of  the  code 
be  attested,  witu«s8ed,  and  proved  iu  like  man-    examiners  that  it  was  "made  to  cover  the  case 

239 


§§  W74-1276 


ACQUISITION"  OF  TROrERTY. 


[Div.  II.  Part  IV, 


of    an    olojtr.ipliic    will    marie    by  a   married  to  tlie  power  of  a  fp.m.i'  rorcrt  to  dispose  of  her 

woman."     For  an   oxi.min.Uion  of  the  various  elTpct-*  l)y  will,  see  1    Heilf.  on   Wills,  22;  and 

nnxliiioatioiia  which  the  law  has  umlergone  iu  Scliouler  on  llusb.  &  W.  457. 
the  various  states  and  in  England,  M-itii  respect 

1274.  117/a/  may  pass  by  icill. 

Sue.  127-1.  Every  estate  and  interest  in  real  or  personal  property,  to  wliieli 
heirs,  Imsb.uicl,  wiclow,  or  next  of  kin  mij^'bt  succeed,  may  be  disposed  of  by 
■will,  except  as  otherwise  provided  in  sections  fourteen  hundred  and  one  and 
fourteen  hundred  and  two. 

1275.  Who  may  fake  by  will. 

Sec.  1275.  A  testamentary  disposition  may  be  made  to  any  person  capable 
by  law  of  tahiu,:;^  the  property  so  disposed  of,  except  corporations  other  than 
those  formed  for  scientific,  literar}',  or  solely  educational  purposes  cannot  take 
under  a  will,  unless  expressly  authorized  by  statute.  \ Amend nu^iil,  ai>provrd 
January  2'd,  1874;  Aiwixdmentxl^TiW-A:,  275;  tonic  effect  from  pm^i^ofjc.] 

Bequests  to  corporatioiis. — This  section,     corporation,  one  org-inized  solely  for  educational 


purposes,  and  can  take  hy  will:  EsUUe  of' Bui- 
mn;  aaCd.  1:11. 

Charitabl3  uses  valid:  See  sec.  817,  aii/'>, 
and  note. 

Corporations  existing  bsfors  tli3  coda: 
See  sec.  28S,  and  note,  U'lon  tiiu  rig  it  of  cor- 
porations, organizod  prior  to  the  codi;.  to  take 
by  will  according  to  the  statute  under  which 
they  were  incorporated. 


read  in  counectidJi  with  section  l.'11.3,  wliich 
imposes  certain  liadoations  upon  he(|uest3  to 
corporations,  recognizes  tlie  right  of  a  testator 
to  make  a  l>e(|uest  or  devise  to  coi-poratious: 
Estate  of  R  ■hhi'^on,  6.'}  Cal.  G20.  A  inniuci- 
pal  corporation  may  take,  a  bequest  of  money 
in  trust,  to  l)e  invented  and  paid  out  from 
time  to  time  to  the  destitute  women  and 
children  witiiin  the  limits  of  such  corporation: 
liobinaoit^tf  Eii'ate,  supra.     A  scliool  district  is  a 

1276.    Wril/en  will,  hoio  to  be  executed. 

Sec.  127G.  Every  will,  other  than  a  nuncupative  will,  must  be  in  writing; 
and  every  will,  other  than  an  olographic  will  and  a  nuncupative  will,  must  be 
executed  and  attested  as  follows: 

1.  It  must  be  subscribed  at  the  end  thereof  by  the  testator  himself,  or  some 
person  in  his  presence  and  by  his  direction  must  subscribe  his  name  thereto; 

2.  The  subscription  must  be  made  in  the  presence  of  the  attesting  witnesses, 
or  be  acknowledged  by  the  testator  to  them,  to  have  been  made  bj'  him  or  by 
his  authority; 

3.  The  testator  must,  at  the  time  of  subscribing  or  acknowledging  the  same, 
declare  to  the  attesting  witnesses  that  the  instrument  is  his  will;  and, 

4.  There  must  be  two  attesting  witnesses,  each  of  whom  must  sign  his  name 
as  a  witness,  at  the  end  of  the  will,  at  t'ae  testator's  request,  and  in  his  presence. 

Execution  of  foreign  ■will:  See  sec.  13G7,     nessea  may  sign  the  testator's  name  at  his  di- 


poxt. 

Olograoliio  -will:  See  sec.  1277,  infra. 

C^njonlor  mutual  wUl:  .See  sec.  1279,  infra. 

Nunjupitivc  will;     See  sees.  I2SS-12'J1. 

Execution  of  -will. — 1.  SIjuvkj. — Tlie  tes- 
tator mast  either  sign  his  name  at  t!ie  end  of 
the  will:  Watln  v.  I^thic  Adin'r,A  Wend.  108; 
Lfiwi'i  V.  Len^is.  l:{  liarb.  17:  McDoiiou-jh  v. 
Lanijldin,  20  Id.  238;  Strieker  v.  Grores,  5 
^Vhart.  3S0;  or  have  it  signed  by  some  (Uie  in 
his  presence  and  at  his  direction:  liiley  v. 
Rilpy,  .3(5  Ala.  49(1;  Abraham  v.  WilHiit,  17 
Ark.  2;)2;  Vai.fs  v.  CliimfroHt,  21  Id.  330;  Vaii- 
drufy.  li'nit'hart.  23  Ta.  St.  2  ;2.  The  testa- 
toi's  mark  n,ay  he  sniScient  signing:  E^la/e  of 
Toojii'x.  it  I  Cal.  i509.  Nor  is  it  necessir}'  that 
the  person  who  v^Tote  the  testator's  name 
should  sign  his  name  "asajiart  of  the  signa- 
ture:" III.  lie  must  affix  his  name  as  a  wit- 
ness to  tlie  will:  II.  But  it  seems  from  this 
same  case  that  one  of  tlie  two  subscribing  wit- 


rcjctioa. 

2.  Ai-knowlpd'jin'i. — It  is  not  necessary  that 
the  vvill  shoull  be  signed  in  t!ie  jiresencc  of  the 
witnesses;  a  distinct  acknowledgment  of  his 
signature  in  their  jn-escnce  is  suliieieMt:  liur- 
wdl  V.  Corbin,  10  Am.  Dec.  404;  /I'aA  v.  /*«;•• 
vcL.  2  Harr.  (Del.)  441;  Dewey  w  JJeirei/,  1  Met. 
310;  I/o'/aii  v.  Grosvenor,  10  Iil.  54;  i  lie<lf.  on 
Wids,  22G,  nnteo4. 

.3.  Puhlicatiw. — The  testator  must  also  de- 
clare to  the  witnesses  that  the  instruuient  is 
hi^  will,  and  this  at  the  time  of  his  signing  of 
of  acknowledging  his  signature:  li  i.tkia  v. 
napkin,  30  N.  Y.  416;  Lewis  v.  Lewis,  11  Id. 
22J.  An<l  such  declaration  made  in  t!ie  pres- 
ence of  but  one  witness  is  not  suliicient,  al- 
though two  witnesses  attest  the  will:  Sei/mmir 
V.  Van  Wi/ck,  fi  Id.  120.  Tlie  mere  liiiowl- 
C'lge  of  the  witnesses  concerning  t!ie  nature  of 
the  instrument  does  not  satisfy  the  statute: 
Gi  bcrt  V.  Knox,  52  Id.  125. 


240 


TnxE  VI,  Chap.  I.]    EXECUTION  AND  REVOCATION  OF  WILLS. 


§§  1277-1280 


See  note  to  references  in  Remsen  v.  Brincher- 
hoff,  37  Am.  Dec.  2G0. 

4.  Attestation. — Attesting  means  more  than 
barely  subscribing  tlie  name  to  the  paper;  it 
implies  knowledge  of  a  publication  and  of 
the  facts  necessary  to  a  legal  publication: 
Sirift.  V.  WiUy,  1  B.  Mon,  117;  Griffith  v. 
Griffith,  5  Id.  511;  see  Gerrish  v.  Nason,  22 
Me.  438.  Where  one  of  the  witnesses,  in  the 
presence  and  hearing  of  the  other,  asked  the 
testator,  "  Do  you  request  me  to  sign  this  as 
your  will  as  a  witness?"  and  the  testator  re- 
plied, "  Yes,"  it  was  sufficient  as  a  request  to 
both  witnesses  and  as  a  publication:  Coffin  v. 
Coffiit,  23  N.  Y.  9.  The  testator's  signature 
must  be  written  before  the  witnesses  siL,'n  tlieir 
names,  otherwise  the  will  is  not  properly  exe- 
cuted: Sisters  of  Charity  v.  Kelly,  67  Id.  409. 
Witnesses  must  also  write  their  places  of  resi- 
denoe:  Sec.  1278,  infra. 

lu  presence  of  the  testator  means  that  the 
testator  must  not  only  be  present  corporally, 


but  mentally  as  well,  capable  of  understanding 
the  acts  which  are  taking  place  before  him:  2 
Greenl.  Ev.,  p.  73.3,  sec.  678,  and  note  1,  p. 
734;  1  Jarm.  on  Wills,  5th  ed.,  sec.  87. 

The  attestation  must  be  at  the  request  of  the 
testator.  The  request  may  be  implied:  Bromv 
V.  De  Sdillnrj.  4  S.mdf.  10;  I^elson  v.  J/c- 
Giffcrf,  3  Barb.  Ch.  l.")8.  Any  cou)  muni  cation 
importing  such  request  is  sulBcieut:  Cofin  v. 
Coffin,  23  N.  Y.  9;  and  see  Bundij  v.  Mcknight, 
48  Ind.  502. 

It  is  not  necessary  that  the  witnesses  sub- 
scribe ill  each  other's  presence:  Willis  v.  Moot, 
3G  N.  Y.  48G;  llny^radi  v.  Kinqmnnn,  22  Id. 
372;  W>'hh  v.  Fte^nimj,  30  Ga.  808;  Gaijlor'a 
vl^yjra/,  43Conn.  82;  U/a  v.  Edwards,  IGOray, 
91.  That  one  who  signs  the  testator's  name 
may  \je  a  witness  to  the  will,  see  EatiUe  of 
Toomps,  54  Cal.  509. 

Imperfectly  esscuted  will,  ho-sv  far 
valid:  See  note  to  Guthrie  v.  Owen,  36  Am. 
Dec.  316. 


1277.    Definition  of  an  olographic  will. 

Sec.  1277.     An   olographic  will  is  one  that  is  entirely  written,  datecl»  an^' 

signed  by  the  hand  of  the  testator  himself.     It  is  subject  to  no  other  foraa,  aaid- 

may  be  made  in  or  out  of  this  state,  and  need  not  bo  witnessed. 

not,  and  indeed  it  is  confidentially  claimed  in 
those  countries  where  olographic  wills  are  re- 
cognized does  not,  give  rise  to  as  many  attempts 
at  fraudulent  will  making  and  disposiiion  of 
property  as  where  it  d.ies  not  exist,  simply  be- 
cause the  testator's  intentions  are  unknown:'* 


An  olographio  -will  must  be  entirely  in  the 
testator's  liaiidwriting.  If  part  is  a  printed 
form,  it  is  invalid:  Estate  ofI'avd,6\  Cal.  408. 
Even  the  figures  "  1880"  in  print  after  "April 
1  "  in  tlie  dependent's  handwriting  will  invali- 
date t!ie  document  as  an  olographic  M'ill:  Estate 
of  BHiiiifjs,  64  Id.  427.  It  must  be  dated:  Estate 
ef  Martin,  .^S  I.l.  530;  see  Clarke  v.  Ransom,  50 
Id.  4')j.  case  of  an  olographic  will.  "  The  tend- 
ency of  the  courts  to  recognize  the  desire  of 
decedents,  however  informally  expressed,  as 
bIiowu  in  note  to  sec.  1317,  post,  is  one  reason 
for  the  adoption  of  this  section;  and  while  it 
obviates  many  difSculties  and  annoyances,  may 


Ciimmissioners'  note. 
He  v7lio  subscribes  tlie  testator's  name 

need  not  write  his  name  r.s  a  part  of  the  testa- 
tor's signature:  Estate  of  Toome-%  54  Cid.  53. 
One  of  the  attesting  M'itnesses  may  subscribe 
the  testator's  name:  Id. 

Application  of  section:  Estate  of  Toomes,  54 
Cal.  509,  518. 


1273.     Witnesa  to  add  residence. 

Sec.  1278.  A  witness  to  a  written  will  must  write,  with  his  name,  his  place  of 
residence;  and  a  person  who  subscribes  the  testator's  name,  by  his  direction, 
must  write  his  own  name  as  a  witness  to  the  will.  But  a  violation  of  this  section 
does  uot  affect  the  validity  of  the  will. 

1273.    Mutual  will. 

Sec.  1279.  A  conjoint  or  mutual  will  is  valid,  but  it  may  be  revoked  by  any 
of  the  testators,  in  like  manner  with  any  other  will. 

1230.    Competency  of  subscribing  witnenH. 

Sec.  1280.  If  the  subscribing  witnesses  to  a  will  are  competent  at  the  time 
of  attesting  its  execution,  their  subsequent  iucompetency,  from  whatever  cause 
it  may  arise,  does  not  prevent  the  probate  and  allowance  of  the  will,  if  it  is 
otherwise  satisfactorily'  proved. 


Competency  of  subscribing  witness? 

"Stats.  1S50,  177,  sec.  4.  The  general  rule 
is,  that  the  witnesses  must  l>e  competent  and 
credible  at  the  time  they  witness  tlie  exeuutiun 
of  the  will,  for  it  may  be  said  tliat  they  do  in 
fact,  if  not  in  form,  testify  at  the  time  of  sub- 
Bcril)ing;  and  this  is  so,  because  the  witness 
becomes  such  for  the  express  purpose,  tiiere- 
after,  to  testify  to  the  competency  of  the  tes- 
tator to  execute  a  will.  An<l  before  he  sijns 
he  is  supposed  to  have  concluded,  in  his  own 


mind,  that  the  testator  is  of  sound  and  ilispos- 
iiig  mind  aiul  mcniorv,  and  free  from  compul- 
sion or  restraint:  Uedf.  on  Wills,  255,  and 
note  3;  consult  also  2  Greenl.  Ev. ,  nvc.  001. 
TluH  accords  with  the  protest  of  Lord  Cannlen 
against  a  majority  of  the  bemh  in  the 
case  of  llindson  v.  Ilcrscy,  4  Burns  ICccl.  L. 
97.  His  opinion  is  now  acquiesced  in  as  the 
true  exposition  of  the  statute  of  wills:  lianjram 
v.  Winder,  2  Yes.  G.'U,  ami  numerous  other  cases 
cited  therein:  "  Commi.isiouers'  note. 


Civ.  CODK— 16 


241 


S§  12S1-1288  ACQUISITION  OF  PROPERTY.  [Div.  II,  Part  IV, 

11231.    Conditional  ivill 

Sec.  12S1.  A  will,  the  validity  of  wliicb  is  maae  by  its  own  terms  condi- 
tional, may  be  denied  probate,  according  to  the  event,  with  reference  to  the 
condition. 

Conditional  devises  and  b3que3ts:  See  sees.  1344  et  seq.,  post. 

1282.  Gifts  to  subscribing  witnesses  void. 

Sec.  1282.  Ail  beneficial  devises,  legacies,  and  gifts  whatever,  made  or  given 
in  any  will  to  a  subscribing  witness  thereto,  are  void,  unless  there  are  two  other 
competent  subscribing  witnesses  to  the  same;  but  a  mere  charge  on  the  estate 
of  the  testator  for  the  payment  of  debts  does  not  prevent  his  creditors  from 
being  competent  witnesses  to  his  will. 

1283.  Witness,  who  is  devisee,  rights  of. 

Sec.  1283.     If  a  witness,  to  whom  any  beneficial  devise,  legacy,  or  gift,  void 

by  the  preceding  section,  is  made,  would  have  been  entitled  to  any  share  of  the 

estate  of  the  testator,  in  case  the  will  should  not  be  established,  be  succeeds  to 

so  much  of  the  share  as  would  be  distributed  to  him,  not  exceeding  the  devise 

•  or  bequest  made  to  him  in  the  will,  and  he  may  recover  the  same  of  the  other 

-devisees  or  legatees  named  in  the  will,  in  proportion  to  and  out  of  the  parts 

Revised  or  bequeathed  to  them.     [Anieadnient,  approved  March  30, 1874;  Ainend- 

^menls  1873-4,  232;  took  effect  July  1,  1874.] 

!1284.   Will  made  out  of  this  state. 

Section  ;1"2S4  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  242;  took 

■  effect  July,  1,  1874. 

11285.   Will  made  out  of  state. 

Sec  1285.  No  will  made  out  of  this  state  is  valid  as  a  will  in  this  state, 
unless  executed  according  to   the   provisions   of   this   chapter.     [Amendment, 

■  4ipproved  March  SO,  1874;  Amendments  1873-4,  232;  took  effect  July  1,  1874.] 

Probate  of  foreign  wills:  See  Code  of  Civ.  Law  determining  validity  of  a  will:  Sea 
Proc,  sees.  1322  et  seq.  Wiiart.  Confl.  L.,  sees.  583  et  seq. 

"1286.   Subsequent  change  of  domicile. 

R(>ction  1286  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  232;  took 
•effect  July  1,  1874. 

1287.    Republication  by  codicil. 

Sec.  1287.     The  execution  of  a  codicil  referring  to  a  previous  will  has  the 
•effect  to  republish  the  will,  as  modified  by  the  codicil. 

Codicil  operating  as  a  republication  of  a  will:  See  Payne  v.  Payne,  18  Cal.  291. 

'1283.    Nuncupative  will,  how  to  be  executed. 

Sec.  1288.     A  nuncupative  will  is  not  required  to  be  in  writing,  nor  to  be 

■declared  or  attested  with  any  formalities. 

Nuncupative  wills.  —  Statutes   regarding  Dochim  v.  Robinson,  26  N.  H.  ?72;  Babintau 

this  species  of  testament  are  generally  strictly  v.    Le  Blanc,   14  La.  Ann.    729;    Snmpnon   T. 

construed,  and  require  careful  compliance  with  Browninq,  22  Ga.  293;  Lucas  v.  Goff,  33  Misa. 

their  terms:    Monjan  v.  Stevem,  78   111.   287;  629;  Biddle  v.  Biddle,  36  Md.  630. 

■  Yarnairx  Will,  4  Rawle,  40;  Taijlor^s  Appeal,  See  the  note  to  Sykes  v.  Syke»,  20  Am.  Dec. 
47  Pa.  St.  31;  /Hddle  v.  Biddle,  36  Md.  030;  44,  for  an  outline  of  the  history  of  these  wills, 
JJitchell  V.  Vickers,  20  Tex.  377;  Lucas  v.  Goff,  and  a  review  of  the  authorities  aa  to  their  re- 
33  Miss.  629.  quirementa. 

A  nuncupative  will   cannot  be  established  Probating  nuncupative  wills:  See  sees. 

without  proof  that  the  decedent  called  to  wit-  1290,  1291,  ivfra. 

jiess  at  least  one  person  that  such  was  hia  will:  Nuncupative  will  under  the  Mexican  law: 

X3ar)ier  v.  Lnnnford,  12  Suied.  &  M.  558;  Anvelt  See  Panaud  v.  Jones,  1  Cal.  488. 
V.  Ar7ieU,  27  111,  247;  Winn  v.  Bob,  3  Leigh,  151; 

242 


Title  IV,  Chap.  I.]    EXECUTION  AND  REVOCATION  OF  WILLS.  §§  1289-1293 

1289.    Rpquisites  of  valid  nuncupative  vjill. 

Sec.  1 289.  To  make  a  nuncupative  will  valid,  and  to  entitle  it  to  be  admitted 
to  probate,  the  following  requisites  must  be  observed: 

1.  The  estate  bequeathed  must  not  exceed  in  value  the  sum  of  one  thousand 
dollars; 

2.  It  must  be  proved  by  two  witnesses  who  were  present  at  the  making 
thereof,  one  of  whom  was  asked  by  the  testator,  at  the  time,  to  bear  witness 
that  such  was  his  will,  or  to  that  effect; 

3.  The  decedent  must,  at  the  time,  have  been  in  actual  military  service  in  the 
field,  or  doing  duty  on  shipboard  at  sea,  and  in  either  case  in  actual  contem- 
plation, fear,  or  peril  of  death;  or  the  decedent  must  have  been,  at  the  time, 
in  expectation  of  immediate  death  from  an  injury  received  the  same  day. 
[Amendment,  approved  March  30, 1874;  Amendments  1873-4,  233;  took  effect  July 
1,  1874.] 

11290.    Pro^f  of  nuncupative  wills. 

Slc.  1200.  No  proof  must  be  received  of  any  nuncupative  will,  unless  it  is 
offered  within  six  months  after  speaking  the  testamentary  words,  nor  unless  the 
words,  or  the  substance  thereof,  were  reduced  to  writing  within  thirty  days 
after  they  were  spoken. 

See  Code  Civ.  Proc,  sees.  1344  et  seq. 

12C1.    Probate  of  nuncupative  wills. 

Sec.  1291.  No  probate  of  any  nuncupative  will  must  be  granted  for  fourteen 
days  after  the  death  of  the  testator,  nor  must  any  nuncupative  will  be  at  any 
time  proved,  unless  the  testamentary  words,  or  the  substance  thereof,  be  first 
committed  to  writing,  and  process  issued  to  call  in  the  widow,  or  other  persons 
interested,  to  contest  the  probate  of  such  will,  if  they  think  proper. 

"Stats.  1850,  178,  sec.  9.     This  is  required     the  will,  and  must  he  strictly  complied  with, 
to  allow  time  to  produce  a  written  will  and  for     See  also  Code  Civ.  Proc.  Cal.,  sec.  1345:"  Com- 
the  discovery  of    other    facts  which  help  to     missioners' note. 
Btrengtheu  or  defeat  the  application  to  prove 

1292.  Wrilfen  will,  how  revoked. 

Sec.  1292.  Except  in  the  cases  in  this  chapter  mentioned,  no  \7ritten  will, 
nor  any  part  thereof,  can  be  revoked  or  altered  otherwise  than : 

1.  Ey  a  written  will,  or  other  writing  of  the  testator,  declaring  such  revoca- 
tion or  alteration,  and  executed  with  the  same  formalities  with  which  a,  will 
should  be  executed  by  such  testator;  or, 

2.  By  being  burned,  torn,  canceled,  obliterated,  or  destroyed,  with  the  intent 
and  for  the  pui-pose  of  revoking  the  same,  by  the  testator  himself,  or  by  some 
person  in  his  presence  and  by  his  direction. 

Revocation  of  will — 1.  By  suhftfquent  writ'  of  revocation  of  wills,  and  a  discussion  of  the 

ing. — Sucli  writing  must  be  executed  with  the  principles  involved,  see  1  Jarm.  on  Wills,  5th 

same  furmalities  as  a  will,  otherwise  the  writ-  ed.,    sees.    129  et   seq.,    and   Bigelow's   notes 

in:,',  though  containing  a  clause  revoking  prior  thereto;  see  further  a  note  in  12  Am.  Dec.  377. 

wills,  is   not  a  revocation   thereof:    Uees".   v.  Proof  of  destruction:    See  sec.    1293,    infra. 

Court   of  Probate,  9   1{.  I.    434.     Subsequent  Revoking  by  tearing  signature  from  the  paper: 

will,   when  and  when  not  a  revocation:   See  Estate  of  Luifj,  1  West  Coast  Rep.  773. 
sec.  l\106,  pout.  Code  applies  to  vrhat  wills:  See  sec.  1374, 

2.  L'oiirdivg  or  destroyiny. — For  a  review  of  po9t, 
the  authorities  upon  this  branch  of  the  subject 

1293.  Evidence  of  revocation. 

Sec.  1293.  "When  a  will  is  canceled  or  destroyed  by  any  other  person  than 
the  testator,  the  direction  of  the  testator,  and  the  fact  of  such  injury  or  destruc- 
tion, must  be  proved  by  two  witnesses. 

Stats.  1S.'0,  178,  sec.  10.  "  This  is  required  what  in  formality  with  the  execution  of  » 
to  make  the  act  of  revocation  correspond  some-     will:"  Commissioners'  note. 

243 


8§  1294-1500  ACQUISITION  OF  PROPERTY.  [Dnr.  II,  Pabt  IV, 

1294.  EevoMng  by  obliteration  on  face  of  will. 

Section  1294  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  233;  took 
effect  July  1,  1874. 

1295.  Rei'ocalion  of  duplicate. 

Sec.  1295.     The  revocation  of  a  will,  executed  in  duplicate,  may  be  made  by 

revoking  one  of  the  duplicates. 

Presumptions  as  to  revocation  varying  with  the  situation  of  the  duplicate:  See  1  Jarm.  on 
Wills,  137. 

1286.    Revocation  by  subsequent  will. 

Sec.  129G.  A  prior  will  is  not  revoked  by  a  subsequent  will,  unless  the  latter 
contains  an  express  revocation,  or  provisions  wholly  inconsistent  with  the  terms 
of  the  former  will;  but  in  other  cases  the  prior  will  remains  effectual  so  far  as 
consistent  with  the  provisions  of  the  subsequent  will. 

1297.  Antecedent  not  revived  by  revocation  of  subsequent  will. 

Sec.  1297.  If,  after  making  a  will,  tlie  testator  duly  makes  and  executes  a 
second  will,  the  destruction,  cancellation,  or  revocation  of  such  second  will 
does  not  revive  the  first  will,  unless  it  appears  by  the  terms  of  such  revocation 
that  it  was  the  intention  to  revive  and  give  effect  to  the  first  will,  or  unless, 
after  such  destruction,  cancellation,  or  revocation,  the  first  will  is  duly  repub- 
lished. 

Reviving  •will  by  destroying  later  incon-  revival  of  an  earlier  will,  the  law  was  other- 

sistent  wilL — Prior   to   the   statutes   iu    this  wise:  See  1   lledf.  on  Wills,  sees.  .308,  .SI 7. 

country  ami  in  England   declarini,'  the  subse-  Republication  by  codicil: /'ayue  v.  Pay7ie, 

quent  revocation  of  a  second   will  to   be  no  18  Cal.  291. 

1298.  Revocation  by  marriage  and  birth  of  issue. 

Sec  1298.  If,  after  having  made  a  will,  the  testator  marries,  and  has  issue 
of  such  marriage,  born  either  in  his  life-dme  or  after  his  death,  and  the  wife  or 
issue  survives  him,  the  will  is  revoked,  unless  provision  has  been  made  for  such 
issue  by  some  settlement,  or  unless  such  issue  are  provided  for  in  the  will,  or 
in  such  way  mentioned  therein  as  to  show  an  intention  not  to  make  such  pro- 
vision; and  no  other  evidence  to  rebut  the  j)resumptiou  of  such  revocation  can 
be  received. 

Revocation  by  marriage. — Section  relied  "  And  this  is  also  the  case  when  provision  is 

on  in  SanrJern  v.  Simcirh,   I  West  Coast  Itcp.  maiU;  by  another  instrument.     Lord  Mansfield, 

8G8.     See  the  general  principlo  consi  lered  iu  C.  J.,  in  Dradi/  v.   Cubett.  Doug.  31-H9.     So, 

the  note  to  fi'rnre.s' V.  .S7i' Wow,  15  Am.  Dec.  G.yj;  also,    it   was  licld   by    Lord   EUenburough    in 

1   Jarm.  on  Wills,  5th  Am.  ed.,  sees.    1'22  et  Kniedel  v.  Scrn/loii,  2  East,  530,  au^l  by  Lord 

seq.     Tlie  text  royanling  provision  by  tliu  will  Kenyon,  in  Dof  v.  Lancashire,  5  T.  11.  58:" 

for  subsequent  issue  ij  snstaineil  )iy  Kcnedel  v.  Commis-sioners'  note. 
Scraftou,  2  East,  5.30;  1  lledf.  on  Wills,  204. 

1239.    Effect  of  marriage  if  a  man  on  his  will. 

Sec.  1299.  If,  after  making  a  will,  the  testator  marries,  and  the  wife  survives 
the  testator,  the  will  is  revoked,  unless  provision  has  been  made  for  her  by 
marriage  contract,  or  unless  she  is  pi'oviJed  for  in  the  will,  or  in  such  way  men- 
tioned therein  as  to  show  an  intention  not  to  make  sucli  provision;  and  no  other 
evidence  to  rebut  the  presumption  of  revocation  must  be  received. 

See  note  to  preceding  .section. 

1303.    Efjl^ect  of  a  marriage  of  a  woman  on  her  will. 

Sec.  1300.  A  will  executed  by  an  unmarried  woman  is  revoked  by  her  sub- 
sequent marriage,  and  is  not  revived  by  the  death  of  her  husband. 

Marriage  of  feme  sola  revolcea  har  vrill:  77  N.  Y.  330;  Franwn'a  Will,  2G  Pa.  St  262; 
Vail  V.  Lindsay,  G?  lud.  528;  Broiva  v.  Clark,     1  lledf.  on  Wills,  203 

244 


Title  VI,  Chap.  I.]    EXECUTION  AND  REVOCATION  OF  WILLS.  §§  1301-1307 

1301.  Conlracl  of  mle  vol  a  revocation. 

Sec.  1301.  An  agreement  made  by  a  testator  for  the  sale  or  transfer  of  prop- 
erty disposed  of  by  a  will  previously  made  does  not  revoke  such  disposal;  but 
the  property  passes  by  the  will,  subject  to  the  same  remedies  on  the  testator's 
a""reement,  for  a  specific  performance  or  otherwise  against  the  devisees  or  lega- 
tees, as  might  be  had  against  the  testator's  successors,  if  the  same  had  passed 
by  succession. 

"Stats.  ISoO,  178,  sec.  14.  The  statute  of  its  provisions,  ■which  are  the  same  as  the  text 
1  Vict.,  c.  2G,  sec.  2.S,  supports  the  text  of  this  here.  Tliis,  being  in  accord  with  the  intent  of 
BcctioD.  Most  of  the  American  states  liave  the  testator,  is  a  reasonal)le  ami  just  provision:" 
adopted  similar  statutes,  or  the  substance  of    Code  commissiouer's  note. 

1302.  Jllor/gage  not  a  revocation  of  will. 

Slc.  1CC2.  A  charge  or  incumbrance  upon  any  estate,  for  the  purpose  of 
securing  the  payment  of  money  or  the  performance  of  any  covenant  or  agree- 
ment, is  not  a  revocation  of  any  will  relating  to  the  same  estate  which  was 
previously  executed;  but  the  devise  and  legacies  therein  contained  must  pass, 
subject  to  such  charge  or  incumbrance. 

Stats.  IS.'iO,  178,  spc.  15.  its  equities  to  the  preceding  section: "  Commis- 

Morignge  of  estate  not  a  revocation. —    sioners'  note. 
"This  is  a  clearly  just  provision,  and  similar  in 

13C3.    Conveyance,  xchen  not  a  revocation. 

Sec.  l;]03.  A  conveyance,  settlement,  or  other  act  of  a  testator,  by  which  his 
interest  in  a  thing  previously  disposed  of  by  his  will  is  altered,  but  not  wholly 
divested,  is  not  a  revocation;  but  the  will  passes  the  property  which  would 

otherwise  devolve  by  succession. 

Conveyance  as  a  revocation:    Sec  next  be  sold,  the  devise  is  revoked:  3fcNanghlon  v. 

Bectiuu.     A  conveyance  will  not  work  a  revoca-  IIcNaurjhtou,  34  N.  Y.  201.     The  will  operatea 

tiou  ill  loto  unless  all  the  estate  dcviseil  is  con-  upon  what  is  not  conveyed:  Uruck  v.  Tucker, 

veyed:    i;  el's  v.   li'e  /<,  ."jj  Miss.  GP-S;  Brown  v.  32  Cal.  42o;  see  also  sec.  \?>\\,  pout. 

Thonidih',  l5V\ck.SSS;  M<'Tai/'j<irf\.  7'homp-  Ademption    of   legacies:    See    post,    sec. 

eon,  14  I'a.  St.  149.     If  all  the  estate  devised  1357. 

1204.    WJien  it  is  a  revocation. 

Sec.  1oG4.  If  the  instrument  by  which  an  alteration  is  made  in  the  testator's 
interest  in  a  thing  previously-  disposed  of  by  his  will  expresses  his  intent  that 
it  .sliuU  be  a  revocation,  or  if  it  contains  provisions  wholly  inconsistent  with  the 
terms  and  nature  of  the  testamentary  disposition,  it  operates  as  a  revocation 
thereof,  unless  such  inconsistent  provisions  depend  on  a  condition  or  contin- 
gency by  reason  of  which  they  do  not  take  effect. 

See  note  to  previous  section. 

1305.  Ri'vocation  of  codicils. 

Sec.  1o05.     The  revocation  of  a  will  revokes  all  its  codicils. 

1306.  After-born  child,  unprovided  for,  to  succeed. 

Sec.  130G.  "Whenever  a  testator  has  a  child  born  after  the  making  of  his  will, 
either  in  his  life-time  or  after  his  death,  and  dies  leaving  such  child  unpi'ovided 
for  by  any  settlement,  and  neither  provided  for  nor  in  smy  way  mentioiied  in 
his  will,  the  child  succeeds  to  the  same  portion  of  the  testator's  real  and  per- 
sonal property  that  he  would  have  succeeded  to  if  the  testator  had  died  intes- 
tate. 

1307.  Children  or  ii^siie  of  children  of  testator  unprovided  for  by  Im  will. 

Si:c.  1307.  When  any  testator  omits  to  provide  in  his  will  for  any  of  his  chil- 
dren, or  for  the  issue  of  any  deceased  child,  unless  it  appears  that  such  omission 
was  intentional,  such  child,  or  the  issue  of  such  child,  must  have  tho  same 

245 


§§  130S-1310  ACQUISITION  OF  PROPERTY.  [Drv.  II,  Part  IV, 

share  in  the  estate  of  the  testator  as  if  he  had  died  intestate,  and  succeeds 
thereto  as  provided  in  the  i^receding'  section. 

Stats.  18r>0,  178,  sees.  10,  17.  that  tliey  are  present  to  the  mind  of  the  testa- 

A  child  unprovided  for  by  the  will,  if  tor,  these  sections  alTord  them  no  protection  if 

born  ill  the  liic-tinie  <>f  tlie  testator,  is  entitled  no  provi-siun   is  made  for  them:    See  J'ln/ni'  v. 

to  take  such  sliare  of  the  testator's  estate,  by  Pa>/ne,  18  Cal.  291,  where  such  a  constructioa 

dcsc^ent,  as  it  would  have  been  calitled  to  .had  was  placed  upon  the  statute  from  which  these 

he  died  intestate:  Penrson  v.  Pearson,  40  Cal.  sections  were  drawn. 

GOD.     That  a  posthumous  child  unprovided  for         It  is  not  evidence  of  an  intentional  omission 

takes  according  to  the  statute  of  descents,  see  by  the  testator  of  his  children  wliere  he  devises 

also  Bachnnaiis  Estate,  8  Id.  507.  his  estate  to  his  grandson:  Bufih  v.  Lindsry,  44 

The  omission  to  proviile  for  a  child  r.s  speci-  Cal.  121.     In  BuvkJcy  v.  Gerard,  12.3  Mass.  8, 

ficd    in    section    1,307   has    the   same   effect   as  evidence  of  the  intelligence  of  the  ni'ithcr,  her 

though  such  child  were  born  after  the  c\-ecn-  affection  for  her  children,  and  her  confidenee  in 

ti(m  of  the  wi!l.     It  takes  by  succession:  Estate  her  husband,  to  whom  she  had  devised  all  iier 

of  ]Vardcll,  ru  Cal.  484.  estate,  was  admitted  to  prove  that  the  omission 

Tlie  word  "child  "  as  used  in  these  sections,  to  provide  for  her  cliildren  by  lier  will  was  in- 

].3GGaiid  1307.  includesan  illegitimateas  wellas  tentional.     But  in  Estate  of  Gerraiul,  ^o  Cal. 

a  legitimate  child.     An  illegilimate  child  can,  .330.  it  was  said   that  parol  evidence  was  not 

by  virtue  of  .section  1307,  claim  a  sliare  of  its  admissible  to  show  thrit   the  omission  of   the 

mother's  estate  if  omitted  from  her  will:  E.4ate  cliildren   was   intentional;   on  the  contrary,  it 

of  Wardell,  supra.  was  determined  that  to  render  an  exclusion  of 

The  object  of  these  sections  is  to  protect  t!ie  the  children    effi'ctual,  the  evidence  that   tlio 

chddren    against    omission    or   oversight    fre-  testator  intended  to  do  so  must  be  furnished  by 

qucntly  arising  from  sickness,  old  age,  or  other  the  will  itself. 

iuHrmity,  or  the  peculiar  circumstunecs  under         See  this  subject  considered  in  note  to  Wilson 

which  the  will  was  executed ;  and  whenever  the  v.  Fosket,  39  Am.  Dec.  740. 
mentioning  of  the  children  in  the  will  shows 

1308.   Share  of  after-born  child,  out  <f  what  part  of  estate  to  he  paid. 

Sec.  1308.  When  any  share  of  the  estate  of  a  testator  is  assig^ned  to  a  child 
born  after  the  making  of  a  will,  or  to  a  child,  or  the  issue  of  a  child,  omitted 
in  the  will,  as  hereinbefore  mentioned,  the  same  must  first  be  taken  from  the 
estate  not  disposed  of  by  the  will,  if  an}';  if  that  is  not  sufficient,  so  much  as 
may  be  necessary  must  be  taken  from  all  the  devisees  or  legatees,  in  proportion 
to  the  value  they  may  respectively  receive  under  the  will,  unless  the  obvious 
intention  of  the  testator  in  relation  to  some  specific  devise  or  bequest,  or  other 
provision  in  the  will,  would  thereby  be  defeated;  in  such  case,  such  specific 
devise,  legacy,  or  provision  may  be  exempted  from  such  apportionment,  and  a 
different  apportionment,  consistent  with  the  intention  of  the  testator,  may  be 
adopted. 

1339.    Advancement  during  life-time  of  testator. 

Sec.  1309.     If  such  children,  or  their  descendants,  so  unprovided  for,  had  an 

equal  proportion  of  the  testator's  estate  bestowed  on  them  in  the  testator's  life- 

tin'e,  by  way  of  advancement,  they  take  nothing  in  virtue  of  the  provisions  of 

the  three  preceding  sections. 

Advanoemeuts:  iSee  note  to  sec.  1.3.")!,  77os<.         Advancements   in    cases  of   intestacy; 
Advancements,  question  of,  when  raised:    See  sees.  1393-131)9. 
See  Code  Civ.  Proc,  sec.  1G8(J. 

1310.    Death  of  devisee,  being  relation  of  tedator  in  life-time  of  testator,  leaving 

lineal  dcscendatits. 

Sec.  1310.  When  any  estate  is  d 3 vised  to  any  child,  or  other  relation  of  the 
testator,  and  the  devisee  dies  before  the  tesiator,  leaving  lineal  descendants, 
such  descendants  take  the  estate  so  given  by  the  will  in  the  same  manner  as 
the  devisee  would  have  done  had  he  survived  the  testator. 

"By  ri3ht  of  representatioa "  dsiiaed:  Executors,  1313,  1314.  The  word  "relation" 
Sec.  1403,  post.  in  the  above  section  includes  only  relations  by 

For  considerations  of  questions  ari.sing  out  b'o)d,  not  liy  alSuity:  Estate  of  Pfietb,  43  CaJ. 
of  the  distributions  of   ostites   per  stirpes  or     043. 

j>er  capita,  see  2  J;.rm.  on  Wills,  104,  and  Big-        Daathof  iB^atae. — Legacy  fails,  when:  See 
elow's  note,  3th  Am.  ed.;  also  2  Wiiliaina  on     sees.  l.]43,  1344. 

24a 


Title  VI,  Chap.  I.]    EXECUTION  AND  REVOCATION  OF  WILLS.  §§  1311-1315 

1311.  Devises  of  land,  how  construed. 

Sec.  1311.  Every  devise  of  land  in  any  will  convcya  all  the  estate  of  the 
devisor  therein  which  he  could  lawfully  devise,  unless  it  clearly  appears  by  the 
will  that  he  intended  to  convey  a  less  estate. 

Devising  all  one's  estate:  Bernal  v.  Wade,  a  bequest  is  made  ia  the  will,  will  piiss  such 
40  Cal.  G'J.S;  and  see  next  section,  and  note.  If  est.ite  if  tlie  owner  accepts  the  legacy:  iVoe  v. 
part  of  land  devised  has  l)een  conveyed  or  con-  S/>lirah,  54  Cal.  207.  Election  on  thj  part  of 
tractod  to  be  conveyed,  the  residue  passes  by  the  wife,  whose  share  in  the  community  prop- 
tho  will:  Uriirk  v.  Tucker,  32  Cal.  425;  see  erty  is  devised,  is  referred  to  in  the  note  to  sec- 
ante.  sec.  1303.  tion  1402,  post. 

Devising  the  estate  of  another,  to  whom 

1312.  Will  passes  after-acquired  estates. 

Sec.  1312.  Any  estate,  right,  or  interest  in  lands  acquired  by  the  testator 
after  the  making  of  his  will,  passes  thereby  and  in  like  manner  as  if  title  thereto 
was  vested  in  him  at  the  time  of  making  the  will,  unless  the  contrary  manifestly 
appears  b}'  the  will  to  have  been  the  intention  of  the  testator.  Every  will  made 
in  express  terms  devising,  or  in  any  other  terms  denoting  the  intent  of  the  tes- 
tator to  devise,  all  the  real  estate  of  such  testator,  passes  all  the  real  estate 
which  such  testator  was  entitled  to  devise  at  the  time  of  his  decease.  [Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4,  233;  took  effect  July  1, 1874.] 

Will  passes  what  realty. — Unless  aeon-  Cresson's  Appeal,  76  Id.  19;  sec.  1311,  supra; 

trary  intention  is  manifest  from  tl)e  will  itself,  see  pott,  sec.  1317. 

all  interests  in  land  held  by  the  testator  at  his  Where  a  testator,  after  the  making  his  will, 

death  pass  by  the  will,  whether  acquired  be-  sells  part  of  tract  of  land  specilically  devised, 

fore  or  after  its  execution:    Watton  v.  Wa'ton,  and  subsequently  repurchases  it,  the  portion  so 

7  J.  J-  Marsh.  r)S;  Johns  v.  flodr/es,  33  Md.  sold  and  bou^^ht  back  passes  under  tiie  <levise: 

515;  Lifi'jrd  V.  Hurt,  23  Mo.  )27;  Appfenatc  v.  Wheeler  v.  JJolfon,  4  West  Co;ist  Rep.  370. 

Smith,  31  Id.  1G(J;  Board  of  Education  y.  La/Id,  Tsstamsatary  dispositions  vest  at  testa- 

2G  Ohio  St.  210;  Clarke's  Estate,  82  Pa.  St.  528;  tor's  death:  Sec.  1341,  i)ost. 

1313.  Restriction  on  power  of  devise  to  charitable  uses. 

Sec.  1313.  No  estate,  real  or  personal,  shall  be  bequeathed  or  devised  to 
any  charitable  or  benevolent  society,  or  corporation,  or  to  any  person  or  per- 
sons in  trust  for  charitable  uses,  except  the  same  be  done  by  will  duly  executed 
at  least  thirty  days  before  the  decease  of  the  testator;  and  if  so  made,  at  least 
thirty  daj's  prior  to  such  death,  such  devise  or  legacy,  and  each  of  them,  shall 
be  valid;  provided,  that  no  such  devises  or  bequests  shall  collectively  exceed 
one  third  of  the  estate  of  the  testator  leaving  legal  heirs,  and  in  such  case  a  pro 
rata  deduction  from  such  devises  or  bequests  shall  be  made  so  as  to  reduce  the 
aggregate  thereof  to  one  third  of  such  estate;  and  all  dispositions  of  j)roperty 
made  contraiy  hereto  shall  be  void,  and  go  to  the  residuary  legatee  or  devisee, 
next  of  kin,  or  heirs,  according  to  law.  [New  section,  approved  March  18, 1874; 
Amendments  1^1  ^-A,  275;  took  effect  from  passage.] 

An  Act  to  authorize  the  sei^eral  counties,  cities  and  counties,  cities,  and  towns  of  this  state,  and  the 
offirers  and  board <  of  officers  thereof,  to  receive  propert;/  bi/  fj/ff,  b  quest,  and  devise,  and  t<y- 
h^ld,  manaye,  and  dispose  of  such  propert ji,  and  the  income  and  increase  thereof. 
[Approved  February  10, 1381;  1881,  2.] 
Municipal  boards  may  accept  (jifts,  bequests,  etc, 

8kctio.\  1.  The  boards  of  common  council,  supervisors,  trustees,  houses  of  legislation,  or 
other  legislative  bodies  of  the  several  counties,  cities  and  counties,  cities,  and  towns  of  this 
state,  are  hereby  authorized  to  accept  or  reject,  as  they  m  ly  deem  advisable,  any  gift,  bequest, 
or  devise  hei'etofore  or  that  may  be  hereafter  inadj  to  or  in  favor  of  the  counties,  cities  and 
counties,  cities,  or  towns  represented  by  them  respectively,  or  to  or  in  favorof  any  of  the  o'.Iicers 
or  boards  of  oiiicers  thereof,  in  their  otlicial  capacity,  or  to  or  iu  their  favor  iu  trust  for  any 
lawful  [juidic  purpose. 
How  held  or  ilisposed  of. 

Sec.  2.  The  several  counties,  cities  and  counties,  cities,  and  towns  of  this  state,  and  the 
several  officers  and  l)Oards  of  officers  thereof,  in  their  ollicial  capacity,  are  hereby  authorized  t» 
receive  proptrty  l>y  gift,  becpaest,  ami  devise,  and  to  hold  ancl  dispose  of  the  same,  and  tha 
income  and  increase  tliereof,  to  ami  for  such  lawful  uses  and  purposes  as  have  been  or  may 
hereafter  be  prescribed  iu  the  terms  of  such  gift,  bequest,  or  devise.     Iu  the  event  of  any  such  . 

247 


§§  1317-1:319  ACQtriSlTlON  OF  PROPERTY.  [Div.  II,  Vat.t  IV, 

gift,  bequest,  or  devise  having  been  or  being  hereafter  made,  unaccompaniod  l)y  any  provision 
prescribinij  or  limiting  tlie  uses  or  purposes  to  vvhicli  th'i  property  recji^eil  tlieieumler,  or  the 
income  ot-  increase  tliereof.  sliall  be  put,  hui-!i  u.«es  and  purposes  niay  be  prescribed  and  regulated 
by  the  common  council,  board  of  supervisors,  board  of  trustees,  houses  of  le;:jisiatinn,  oi  otiier 
legislative  body  of  the  proper  county,  city  and  county,  city,  or  town.  Such  legislative  boilies 
may  make  such  regulations  concerning  the  mode  and  manner  of  carrying  into  eh'cco  the  purposes 
as  aforesaid,  and  devoting  the  property  so  received,  and  the  income  and  increase  thereof,  to  the 
uses  aforesaid,  iu  their  respective  counties,  cities  and  counties,  cities,  and  towns,  as  may  be 
necessary. 

Charitable  uses  permitted  by  the  codes:  bequests  to  corporations,  with  the  limitations 
Sc'^  sec.  847,  ante.  there  expressed:  !See  Jiobiiuoji's  EnUUe,  U3  Cal. 

The  above  section  recognizes  the  validity  of     020, 


CHAPTER  II. 

INTERPRETATION  OF  WILLS,  AND  EFFECT  OF  VARIOUS  PROVISIONS. 

1317.  Testator's  intention  to  be  carried  out. 

Sec.  1317.  A  will  is  to  be  construed  according  to  the  intention  of  the  tes- 
tator. "Where  his  intention  cannot  have  effect  to  its  full  extent,  it  must  have 
effect  as  far  as  possible. 

Construotion  of  will   made  before  the  Ilit-hroch,  35  Pa.  St.  399.     And  it  makes  no 

cods  went  into  effect  not  aflected  by  the  code:  difference   whether  tlie  general   or    particular 

Bee.  I.'m'").  ]ioxt.  intent  is  Hrst  stated:  Cook  v.  J/nlme.s,  1 1  Mass. 

Construotion  of  foreign  will:  Sec.  1376,  5-28;  Chase   v.  Lorlcpman,    11    Gill   &   J.    IS5; 

post.  Laud  V.  Oiley,  4  Hand.  "213;  Dea  v,  McMurtrie, 

Intention  of  testator  is  to  be  ascertuned  15  N.  J.  L.  276. 

an<l  followed:  Kidwell  v.  Jirammat/iin,  32  Cal.  The  intent  must  be  given  effect,  if  not  to  its 

436;    Wd/iams  v.  McDoiujall,  39  Id.  80;  E-datf  full    extent,    as    far    as    possible:     Dciihoii    v, 

©/  iroo(/.s,  38  Id.  75;  Esta'e  of  Radovh^h,  5-1  Id.  Mitchell,  26  Ala.  360;  Oxley  v.  Lane.  35  N.  Y. 

640.     The  word   "money"  will  include  both  340;  Sava/je  v.  Buruham.  17  Id.  577;  DeiniM 

persona! ty  and  realty  if  such  a[)pear3  from  the  v.  Deivietf,  40  N    H.  500;   'rinsle'i  v.  Jones,  ]3 

vill  to  be  the  testator's  desire:  MUi'er'a  Estate,  Gratt.  2S9;  2  Williams  on  Executors,  sec.  103S. 

43  Id.    165.     "  Pro  rata,"  in  olographic  will:  Declarations  of   testator   as    evidenoe: 

See  Uoaenberg  v.  Frank,  58  Id.   387.     It  is  a  See  next  section  and  note. 

principle  of  constant  application:  1  Pi.cdf.  on  Precatory  words  iu  a  will. — Tiie  various 

Wills,  4;!2  et  seq.    And  a  will  is  to  be  liberally  sections  of  this  chajtter  were  (juoted   by   the 

construed  to  efiectuate  that  intention:    Welch  court,  in  Cof/.on  v.  Colton,  4  West  Coast  Hep. 

V.  Huse,  49  Cal.  506.  11,  in  determining  that  it  was  the  intention  of 

Whei'c  the  general  intent  is  clear,  and  is  in-  the  testator  by  certain  language  to  recommend 

consistent  with  some  particular  or  si)ecial  in-  certain  acts  to   be  done,  not  to  declare  abso- 

tent,    the   latter    must    yield   to   the    former:  lately  that  they  should  be  performed. 
Parks  V.   Parks,   9   Pai^e,   107;   Hitchcock  v. 

1318.  Ldention  to  he  oi^certained from  the  will. 

Sec.  1318.     In  case  of  uncertainty  arisin^j  upon  the  face  of  a  will,  as  to  the 

application  of  any  of  its  provisions,  the  testator's  intention  is  to  be  ascertained 

from  the  words  of  the  will,  taking  into  view  the  circumstances  under  which  it 

was  made,  exclusive  of  his  oral  declarations. 

Declarations  of  testator  admissible  to  named  as  his  wife  in  the  will,  and  the  legitimacy 
prove  undue  influence:  See  sec.  1272,  and  note,  of  his  children:  Pearnony.  Pearson,  46  Cal.  610. 
unte,  to  prove  his  marriage  with  the  woman 

1319.  Hales  of  interpretation. 

Sec.  1319.     In  interpreting  a  will,  subject  to  the  law  of  this  state,  the  rules 

prescribed  by  the  following  sections  of  this  chapter  are  to  be  observed,  unless 

,«,n  intention  to  the  contrary  clearly  appears. 

Rules  of  interpretation — "It  is  the  pur-  conveyance  and  as  a  will:  Ada7ns  v.  LansiiKj, 

;pose  of  t!ie  code,  in  this  chapter,  to  render  as  17  Id.  62.1.      Will  as  a  coMvey.ince:  (Jastro  v. 

••certain  as  possible  the  rulesof  constrnccionaiid  Castro,  0  Id.  153:"  Commissioners'  note, 

inteipretation  of  wdls:    linick  v.    Turknr,   32  Greealeaf  on  Evidence,  vol.  I,  sec.  287,  says 

Cal.    425;  Kklwell  v.    Brammaijim,    Id.    436;  t'.iat  there  is  no  material  diffvr.'ence  in  tlie  rules 

Est'ite  of  Civraad,   35   Id.  336;  Carpentler  v.  of  interpretation  between  wills  and  contracts. 

Gardener,  29  1,1.  100;  La^rc.o  v.  Cassauueua,  30  except  what  naturally  arises  from  the  diiFcn^nt 

lii.  OW,     Same  iustrumeufc  m<iy  operate  as  a  circumstances   of    the   paruies.     liat  tliat   the 

243 


TiTLK  VI,  Chap.  II.]  INTEErRETATIOIfr  OF  WILLS.  §§  1320-1325 

rules  of  construction  of  wills  are  less  rigid  than  pretation,  and  ought  never  to  be  allowed  to 

in  regard  to  o'ilier  instruments:  fcJee  1  iledf.  on  defeat   an    intent   p'ainly   ex'-rcssed:    Sti'l  v. 

Wills,  sec.  4-20.  _  Specer,  45  Pa.  St.  IGS;  BreuH.y  v.  r,re,irlry,  9 

Tcclmical  i-ulcs  of  construction  ought  to  he  N.    J.    Eq.    2i;    WULcsmson   v.    WdUainson,   i 

applied  to  wills  only  in  cases  of  douhtfuliuter-  Jones  Eq.  281. 

13£20.    Several  instruments  are  to  he  taken  together. 

Sec,  1o20.  Several  testamentary  iustrunieuts,  executed  by  the  same  testator^ 
are  to  be  taken  and  construed  together  as  one  instrument. 

IS?!.    Harmonizing  various  parts. 

Sec.  1:321.  All  the  parts  of  a  will  are  to  be  construed  in  relation  to  each 
other,  and  so  as,  if  possible,  to  form  one  consistent  whole;  but  where  several 
parts  are  absolately  irreconcilable,  the  latter  must  prevail. 

AH  parts  of  the  will  are  to  be  construed  in  will  prevail,  as  being  the  latest  expression  of 

relation  to  each  other,  so  as  to  make  the  entire  the  testator's  desire:    Van  Noxiraiid  v.  J'aoorey 

instrument    consistent:    Alsop   v.    Iiiissc/l,    38  512  N.  Y.  12;  Eoeritt  v.  Ern-Ul,  2d  Id.  30:   Van 

Conn.  90,  101;  Grimes  v.  Harmon,  35  Ind.  108;  Vechlfii  x.  Keator,  03  Id.  52;  Jlil/rrv.  Floin-Doy^ 

Pcrl.ins  v.  M<ilhe.%  49  N.  H.  107,  110;  ./one<v.  26  Ala.  72-1;  Orr  v.  Mo-^es,  52  Me.  287;  Al^iop 

Jones,  2.")  Midi.  401;  Schott  Fatal",  78  Pa.  St.  v.  Ilussell,  38  Conn.    lOl;   RoUrt  v.    West,    15 

40.     And  where  there  is  a  codicil,  it  should  be  Ga,  122.     But  '"this  rule  is  not  to  be  resorted 

read  in  connection  with  the  body  of  the  iustru-  to    except  in  cases  where  the   repugnance  is. 

ment:   Wetiiiore  v.  Parker,  52  N.  Y.  45i^;  Pick-  clear,  so  tliat  one  of  the  parts  of  the  will  must 

erbhj  V.  LaiKjdnv,  22  Me.  413;  Colt  v.  Colt,  32  of  necessity  be  rejected;  for  they   are  to  be 

Conn.  44G;   /fo/:pork  v.  Tucker,  59  N.  Y.  202;  reconciled,  if  they  possibly  may  be  by  reason- 

C/(r//.-<«Vv.  /V(?/y*c,  19  Id.  344,  348,  containing  a  able  construction:"   Wihle,  J.,   in    Jlomer  y. 

-clear,   succinct  statement  of  the  leading  doc-  Shelton,2  Met.  194;  Sniv  lij  v.  Storer,  78  Pa. 

trincs  of  construction  of  wills.  St.  481;  Pare  v.  Bonner,  27  Ala.  307,  309,  310; 

Parts  irrecoacilable. — Where  two  portions  Newbold  v.  Boone,  57  Pa.  St.  107. 
of  a  will  are  absolutely  irreconcilable,  the  latter 

1322.  Ill  tchat  case  devise  not  affected. 

Sec.  1322.  A  clear  and  distinct  devise  or  bequest  cannot  be  affected  "by  any 
leasoos  assigned  therefor,  or  by  any  other  words  not  equally  clear  and  distinct, 
or  hj  inference  or  argument  from  other  parts  of  the  will,  or  by  an  inaccurate 
recital  of  or  reference  to  its  contents  in  another  part  of  the  will. 

Reason  assigned  not  to  be  used  to  reject  a    and  distinct  devise:  2  Williams  on  Ejceeutors, 
clear  and  distinct  provision:  2  Williams  on  Ex-     10S7. 
ecutors,  1087.  Intention  of  testator:  See  sec.  1317,  and 

liifereace  or  argument  from  other  parts  of    note, 
the  will  are  not  to  be  employed  to  afTect  a  clear 

1323.  Wlien  ambiguous  or  doubtful. 

Sec.  1323.  Where  the  meaning  of  any  part  of  a  will  is  ambiguous  or  doubt- 
ful, it  may  be -explained  by  any  reference  thereto,  or  recital  thereof  in  another 
part  of  the  will. 

See  Estate  of  Wood,  36  Cal.  73. 

1324.  Words  taken  in  ordinary  sense. 

Sec.  1324.  The  words  of  a  will  are  to  be  taken  in  their  ordinary  and  gram- 
matictil  seiise,  unless  a  clear  intention  to  use  them  in  another  sense  can  be  col- 
lected, and  that  other  can  be  ascertained. 

1325.  Words  to  receive  an  operal'we  construction. 

Sec.  1135.  The  words  of  a  will  are  to  receive  an  interpretation  which  will 
give  to  ev<^ry  expression  some  effect,  rather  than  one  which  will  render  any  of 
the  exprensious  inoperative. 

See  sec.  l;;2I. 

1326.  Jiifesfar)/  to  be  avoided. 

Si:c.  132G.  Of  two  modes  of  interpreting  a  will,  that  is  to  be  preferred  which 
will  i^reveiit  a  total  intestacy. 

See  CU/>i:i  v.  Williams,  17  Ohio  St.  .'{Oj;  Snn<l<je,  14  N.  J.  Eq.  124;  Bo7jd  v.  Latliamy 
{jTK-uiiey  V.  Thompson,  2  Sneed,  387;  Lchik  --.     liusb.  L.  3(>5. 

24!) 


i§§  lS27-in34  ACQUISITION  OF  PROPERTY.  [Div.  II,  Part  IV, 

1327.    Effect  of  technical  words. 

Sec.  1327.     Technical  words  in  a  will  are  to  be  taken  in  their  technical  sense, 

unless  the  context  clearly  indicates  a  contrary  intention. 

Technical  "words  are  to  be  taken  in  their  France's  Eftaie,    75   Id.  220.     Where  the  in- 

tcciinical  sense  unless  the  context  clearly  iudi-  tention  is  plain,  it  will  control  the  legal  opera- 

<5atc3  the  contrary:  Brown  v.  Lyon,  G  N.   Y.  tiou  of  teclmical  words:  lioberLwn  v.  Johnjion, 

418;  Cai/ijjijrii  v.  Uaiuilon,   18  Id.   417;  M>or?.  24  Ga.  102;  Doiov.  Dow,  .30  Me.  216,  per  llow- 

V.  Lyoii'^,  2.}   Wend.   119;   Sherwood  v.  Sluer-  ard,  J.;  Fetrow's  Estate,  53  Pa.  St.  427;  llower 

ifood,  3  liradf.  230;    Corrifjan   v.   Kiernaii,    I  V.  iiheUon,  2  Met.  194,  198,  199. 
I.l.    2GS;    JJoebler's    Appeal,    G4   Pa.    St.    15; 

1323.    Tt  clinical  words  not  necessary. 

Sec  1328.  Technical  words  are  not  necessary  to  give  effect  to  any  species  of 
■disposition  by  a  will. 

Technical  words  not  necessary  to  give  decisions  concerning  the  expressions  in  wills 
•effect  to  any  species  of  disposition:  See  2  Will-  that  will  pass  realty,  see  the  note  to  Tolar  v. 
iams  on  Executors,  1078.     For  a  review  of  the     Tolar,  14  Am.  Dec.  576. 

1329.  Certain  words  not  necessary  to  pass  a  fee. 

Sec.  1329.  The  term  "  heirs,"  or  other  words  of  inheritance,  are  not  requisite 
to  devise  a  fee,  and  a  devise  of  real  property  passes  all  the  estate  of  the  testator, 
unless  otherwise  limited. 

Words  of  succession  not  necessary  to  transfer  a  fee:  See  sec.  1072,  avlt, 

1330.  Power  to  devise,  how  executed  by  terms  of  will. 

Sec.  1330.  Real  or  personal  property  embraced  in  a  power  to  devise  passes 
by  a  will  purporting  to  devise  all  the  real  or  personal  property  of  the  testator. 

1331.  Devise  or  bequest  of  all  real  or  all  personal  property,  or  both. 

Sec.  1331.  A  devise  or  bequest  of  all  the  testator's  real  or  personal  property, 
in  express  terms,  or  in  any  other  terms  denoting  his  intent  to  dispose  of  all  his 
real  or  personal  property,  passes  all  the  real  or  personal  property  which  he  was 
•entitled  to  dispose  of  by  will  at  the  time  of  his  death. 

"Words  iu  will  passing  realty:  See  Tolar  and  see  sees.  1305,  1311,  1312,  ante.     A  devisa 

T.  Tolnr,  1  4  Am.  Dec.  570,  in  note.  of  all  the  testator's  property,  real  and  personal. 

Devise  of  realty. — The  will  operates  upon  includes  the  homestead:  Etchebornev.  Aazerais, 

the  realty  owned  by  the  testator  at  his  death.  45  Cal.  121. 

If  he  has  conveyed  part  of  a  tract  devised,  tlie  General  and  speciiic  legacies:  See  pasty 

residue  passes:  Bruck  v.  Tucker,  32  Cal.  425;  sec.  1357. 

1332.  Devise  of  residue,  what  passes. 

Sec  1332.  A  devise  of  the  residue  of  the  testator's  real  property  ]:asses  all 
the  real  j^roperty  which  he  was  entitled  to  devise  at  the  time  of  his  death,  not 
otherwise  effectually  devised  by  his  will.  [Amendmenty  approved  3Iarch  30, 
1874;  Amendments  1873-4,  234;  took  effect  July  1,  1874.] 

1383.  Same. 

Sec.  1333.  A  bequest  of  the  residue  of  the  testator's  personal  property  passes 
all  the  personal  property  which  he  was  entitled  to  bequeath  at  the  time  of  his 
death,  not  otherwise  effectually  bequeathed  by  his  will.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  234;  look  effect  July  1,  1874.  J 

1384.  "  Heirs,"  "  relatives,"  "issue,"  "  descendants,"  etc. 

Sec.  1334.  A  testamentary  disposition  to  "heirs,"  "relations,"  "nearest 
relations,"  "  representatives,"  "  legal  representatives,"  or  "  personal  repi^seut- 
atives,"  or  "  family,"  "  issue,"  "descendants,"  "  nearest,"  or  "  next  of  kiu  "  of 
any  person,  without  other  words  of  qualification,  and  when  the  terms  are  used 
as  words  of  donation,  and  not  of  limitation,  ve3ts  the  property  in  those  who 
would  be  entitled  to  succeed  to  the  property  of  such  person,  according  to  the 
provisions  of  the  title  on  succession,  in  this  code. 

250 


Title  YI,  Chap.  II.]  INTERPRETATION  OF  WILLS.  §§  1335-1340 

1335.  Words  of  donation  and  llmiation. 

Sec.  1335.  The  terms  inentioneLl  iu  the  last  section  are  used  as  words  of 
donation,  and  not  of  limitation,  when  the  jiroperty  is  given  to  the  ijerson  so 
designated  directly,  and  not  as  a  qualification  of  an  estate  given  to  the  ancestor 
of  such  person. 

Rule  in  Gliellsy's  Case  not  adopted  in  in  SheUpy''s  Cafte,  wlien  applied  to  wills,  se« 
this  slate:  .Sec  sec.    779,    ante.     In  Aorris  v.     Ls'ate  of  Utz,  43  Cal.  201. 

Heiifthi/,  27  Cal.  o9,  tlic  rules  of  construction  Des.;riptio.i  of  legatee. — For  an  extended 
of  wills  and  the  docirine  of  Shellfy's  <  'as<>  were  review  of  American  and  Kn^lisli  ca^es  upon 
carefully  cousiilered.  There  a  devise  of  the  the  meaning  of  the  variouj  terms  "  heirs," 
testator's  re;vlty  in  three  equal  jiarts  to  three  "  issue,"  "m-xt  of  kin,"  and  others  ennraer- 
speciiied  devisci  s,  "each  and  all  of  them  to  ated  in  section  1334,  sec  2  WiKiamj  on  Ex- 
have  au  I  to  hold  their  life-time,  and  then  to  editors,  pp.  1107  et  se<].;  aec  also  the  in- 
go  to  their  heirs  and  assigns.  But  never  to  structive  argument  in  Ilillkjtu-ie  v.  (Jhe.-^ter,  3 
sell,"  was  h.cll  to  vest  a  fee-simple  in  the  Day,  for  a  coustructioa  of  the  term  "next 
devisees.     For  further  consideration  of  the  rule     of  kin." 

1336.  To  what  time  words  refer. 

Sec,  133G.     Words  in  a  will  referring  to  death  or  survivorship,  simply,  relate 

to  the  time  of  the  testator's  death,  unless  possession  is  actually  postponed, 

when  they  must  be  referred  to  the  time  of  possession. 

Illustrating  the  provisions  of  this  section  are  Tucker  v.  Lislwp,  IG  N.  Y.  402;  Campbtll  v. 
Rawdoii,  IS  Id.  415. 

1337.  Devise  or  bequest  to  a  class. 

Sec.  1337.  A  testamentary  disposition  to  a  class  includes  every  person 
answering  the  description  at  the  testator's  death;  but  when  the  possession  is 
postponed  to  a  future  period,  it  includes  also  all  persons  coming  within  the 
description  before  the  time  to  which  possession  is  postponed. 

Pcstliumous  children:  See  infra,  sec.  1339. 

1333.    Wlien  conversion  takes  effect. 

Sec.  1338.     "When  a  will  directs  the  conversion  of  real  property  into  money, 

such  property  and  all  its  jDroceeds  must  be  deemed  personal  property  from  the 

time  of  the  testator's  death. 

EqmtablD  conversion.— It  is   an   anplica-  41,  4G;  PJieljn^  v.   Pond,  2?>  T<1.  CO;   WlrUe.  v. 

tion  of  the  principle   that  equity  will  consider  lloivard   4G  Id.  1G2;  C'/a//  v.  //ar',  7  Dana,  1 1 ; 

as  done   what  ouglit  to  have   been  done   that  Evan  v.    K'ni'!-<herr>/,   2  Hand.    120;    Taylor  v. 

leads  to  the  doctruie  formulated  in  the  above  Bcnhnm,   5   How.   23.1;    Pfe    also  an    ixLended 

section.     Real   property   has    been  considered  consideration  of  the  subject  in   1   Williams  od 

personalty   for  the    purposes   of    distribution  Executors,  G58  et  seq.,  and  notes, 
under  a  will  iu  JJramhall  v.  I'erris,  14  N.  Y. 

1339.  Wlien  child  born  after  testator's  death  takes  under  will. 

Sec.  1330.  A  child  conceived  before,  but  not  born  until  after,  a  testator's 
death,  or  any  other  period  when  a  disposition  to  a  class  vests  in  right  or  in 
possession,  takes,  if  answering  to  the  description  of  the  class. 

Child  eu  ventre  sa  mere:  See  sec.  20,  ante,  and  note. 

1340.  3Ii<talces  and  omissions. 

Sec.  1340.  When,  applying  a  will,  it  is  found  that  there  is  an  imperfect 
description,  or  that  no  person  or  property  exactly  answers  the  description,  mis- 
takes and  omissions  must  be  corrected,  if  the  error  appears  from  the  context 
of  the  will  or  from  extrinsic  evidence;  but  evidence  of  the  declarations  of  the 
testator  as  to  his  intentions  cannot  be  received. 

Testator's  doclarations  of  intention  are  "What  d3claration3  of  a  t33tator  are  ad- 
generally  iuadnii.ssii)ie  to adect  the  construction  miisible:  See  2  Wliart.  on  ICv.,  s  cs.  1009 
of  the  will:  Ryir-i  v.  U'h-eler,  22  Wend.  1  IS;  et  S'^ip ;  note  to  Jackson  v.  KnijT<')i,  3  Am.  Deo. 
Eaton  V.  r,cnio,i,  2  Hi  1  (N.  Y.),  r)7G;  Barnit  v.     3m. 

Wri'jhf,  13Pick.  4.j;  U.-^horne  \.  Varney,  "J  Mvt.  Patent  and  latent  amb:3Tii":ie3,  an  1  parol 
301;  llrndlryv.  Dradlcy,  24.  Islo.^W;  Button  w  evidence  to  explain  t'aeui  Tiie  maxim  of 
American  Tract  Society^  23  Vt.  336.  Bacou  respecting  patent  and  latent  ambigui- 

251 


S§  1341-1330  ACQUISITION  OF  PROPERTY.  [Div.  II,  Part  IV, 

ties  in  docuiTieiita,  and  the  arlmissibility  of  ex-     oncrh  examination  in  2  Whart.  on  Ev.,  aecs. 
trinsic  eviileiice   to  explain,   receives  a   tlii»r-     J)JJ  et  seti. 

1341.  Wli.f'n  (hu-isffi  and  bequesfs  veM. 

Skc.  1341.  Testamentary  dispositions,  including  devises  and  bequests  to  a 
person  ou  attaining  majority,  are  presumed  to  vest  at  the  testator's  death. 

1342.  Wlien  cnnnol  be  dives'ed. 

Sec.  1342.  A  testamentary  disposition,  when  vested,  cannot  be  divested 
unless  npou  the  occurrence  of  the  precise  contingency  prescribed  by  the  testa- 
tor for  that  purjjose. 

1343.  Death  of  devisee  or  legatee,  before  teMntor. 

Sec.  1343.  If  a  devisee  or  legatee  dies  during  the  life-time  of  the  testator, 
the  testamentary  disposition  to  him  fails,  unless  an  intention  appears  to  substi- 
tute some  other  in  his  place,  except  as  provided  in  section  thirteen  hundred 
and  ten.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  234; 
iook  ejl'ect  July  1,  1874.] 

1344.  Interests  in  remainder  are  not  affected. 

Sec.  1344.  The  death  of  a  devisee  or  legatee  of  a  limited  interest  before  the 
testator's  death  does  not  defeat  the  interests  of  persons  in  remainder,  who  sur- 
vive the  testator. 

1345.  Conditional  devises  and  bequests. 

Sec.  1345.  A  conditional  disposition  is  one  which  depends  upon  the  occur- 
rence of  some  uncertain  event,  by  which  it  is  either  to  take  effect  or  be  defeated. 

Conditions  of  ownership:  See  sees.  707,  Conditions  a%  applied  to  b3qus3t3  and 
ante,  ct  k  q.  dsvisas:    Sae  tlie  note  to   C'oppwje  v.  Alex- 

Conditional  oblisations:   See  sees.    1434,     auder's  Heirs,  33  Am.  Dec.  160. 
post,  et  scq. 

1346.  Condition  precedent,  what. 

Sec.  134G.  A  condition  precedent  in  a  will  is  one  which  is  required  to  bo  ful- 
filled before  a  particular  disposition  takes  effect. 

1347.  Effect  of  condition  precedent. 

Sec.  1347.  "Where  a  testamentary  disposition  is  made  upon  a  condition  pre- 
cedent, nothing  vests  until  the  condition  is  fulfilled,  except  where  such  fulfill- 
ment is  iinpossible,  in  which  case  the  disposition  vests,  unless  the  condition  wa3 
the  sole  jnotive  thereof,  and  the  impossibility  was  unknown  to  the  testator,  or 
arose  from  an  unavoidable  event  subsequent  to  the  execution  of  the  will. 

1348.  Conditions  precedent,  when  deemed  performed. 

Sec.  1348.  A  condition  precedent  in  a  will  is  to  be  deemed  performed  when 
the  testator's  intention  has  been  substantially,  though  not  literally,  complied 
with. 

1349.  Conditions  subsequent,  what. 

Sec.  1349.  A  condition  subsequent  is  where  an  estate  or  interest  is  so  given 
as  to  vest  immediately,  subject  only  to  be  divested  by  some  subsequent  act  or 
event. 

1359.    Devisees,  etc.,  lake  as  tenants  in  common. 

Sec.  13r>0.  A  devise  or  legacy  given  to  more  than  one  person  vests  in  them 
as  owners  in  common. 

Devis333  wli3u  owners  in  common — A  ant3  in  coinmon:  Estafe  of  Utz,  43  Cal.  201. 
devise  "to  my  yo'iiijest  daughter,  Mir^iret  See  as  to  estates  in  common,  a/t<c,  sees.  685, 
Utz,  ami  to  her  children,"  m.ikes  them  ail  ten-     6S6. 


TriLii  \1,  CiiAP.  i:i.]  GENERAL  PROA^SIONS.  §§  1351-1357 

ISfll.    Advancemenls,  when  ademptions. 

Sr:c.  1351.     AJvaucements  oi*  gifts  are  not  to  be  taken  as  ademptions  of  gen- 
eral legacies,  unless  sucb  intention  is  expressed  by  the  testator  in  writing. 

Advancement. — In  section  1309,  avtp,  it  is  iiected   with  the  subject  of  advancement  are 

proviued    that   a    child    to   whom    nothing    is  adverted  to. 

given  Ly  tlie  will,  who  has  received  an  eijual  Advancement  in  cases  of  intestacy:  See 

•hare  in  the  testator's  life-time  by  v.ay  of  ad-  po^f,  sues.  i;)9.5-lo99. 

vancement,  takes  nothing  further  from  the  Ademption  of  legacies. — This  section  de- 
estate.  But  no  provision  is  made  fur  ascertain-  chires  that  the  gift  iu  tlie  testator's  life-time, 
ing  the  value  of  the  advancement,  or  of  assuring  and  his  testamentary  provision  for  the  donee, 
to  a  child  omitted  by  the  will  its  full  proportion  slia'.l  i)oth  stand,  unless  s<'me  wTicing  disclose 
of  its  ancestor's  estate.  See  the  discussion  of  a  different  intent.  As  to  ademption  of  legacies, 
this  fjuesliou  in  2  Williams  on  Executors,  sues,  see  sees.  1337,  post. 
1498  et  setj.,  where  the  various  principles  con- 


CHAPTER  III. 

GENERAL  PROVISIONS. 
1357.    Nature  and  designation  of  legacies. 

Sec.  1357,     Legacies  are  distinguished  and  designated,  according  to  their 
nature,  as  follows: 
Specific. 

1.  A  legacy  of  a  particular  thing,  specified  and  distinguished  from  all  othera 
of  the  same  kind  belonging  to  the  testator,  is  specific;  if  such  legacy  fails, 
resort  cannot  be  had  to  the  other  property  of  the  testator. 

Demo)t.'<trative. 

2.  A  legacy  is  demonstrative  when  the  particular  fund  or  personal  property 
is  pointed  out  from  which  it  is  to  be  taken  or  paid;  if  such  fund  or  proi>erty 
fails,  in  whole  or  in  part,  resort  may  be  had  to  tlie  general  assets,  as  iu  case  of 
a  general  legacy. 

An7iuities. 

3.  An  annuity  is  a  bequest  of  certain  specified  sums  periodically;  if  the  fund 
or  property  out  of  which  they  are  payable  fails,  resort  may  be  had  to  the  general 
assets,  as  iu  case  of  a  general  legacy. 

Hesiduari/. 

4.  A  residuary  legacy  embraces  only  that^hich-remains-after  all  the- bequests 
of  the  will  are  discharged. 

General. 

5.  All  other  legacies  are  general  legacies. 

Subd.  1.    A  specific  legacy  is  a  bequest  of        The  peculiarities  of  a  specific  legacy  are  that 

a  particular  article;  it  is  some  identical  thing,  it  is  liable  to  ademption,  canuot  lie  paid  from 

irrespective  of  its  value,  and  nut  its  ecpiivalent  the  general  assets,  and  does  not  abate  with  tlio 

in  money:  Estate  of  Wooduvrt/i,  31  Cal.  425;  general   legacies:   Roper   on   Legacies,    192;  2 

Wcdloa  V.   Waltm,  11  Am.  Dec.  450, /jpr  Chun-  Redf.  on  VVills,  141. 

cellorKent;  Bradford  v ,  J  Jaipii'i,  20  Me.  105;         A<feinpl!ou  of  specific  legwies:  See,  generally, 

Homiu'l   IIVt/ivr'.s-  Es/aie,  3  Rawle,  237;  Gihner  2  Williams  on  Executors,  1.320;  Walton  v.  Wal- 

V.  Gilmer,  42  Ala.  9;    Wallace  v.   Wallnre,  23  tov,  11  Am.  Dec.  470;  see  also  antr,  sec.  1303. 
N.  II.   154;  Tift  V.  Porter,  8  N.   Y.  51G;  De        Subd.  2.     A   dsmonstrative  legacy  is  a 

JS'offrbeck  V.  Antor,  13  Id.  98;  Farnnm  v.  Bas-  It-gaey  of  quantity  to  be  paid  from  a  particular 

cum,  122  Mass.  2S2.     A  bequest  of  "  whatever  fund.     Legacies  of  quantity  are  ordinarily  gen- 

auuis  may  be  on  deposit  in"  a  certain   bank  eral,  but  become  "demonstrative"  when  they 

is  a  specific  legacy:   Towle  v.  Stccu<ei/,  lOG  Id.  are  directed  to  be  satistied  out  of  a  specified 

100.     A  beciuest  of  "all  my  personal  estate"  fund.     It  must  api)ear  tiiat  the  testator  wished 

is  not  a  specific  legacy:  Estate  of  Woodwortti,  to  give  the  amount  to  tlie  legatee  iu  any  event, 

31  Cal.  595.  and  not  that  the  gift  was  charged  upon  one 

Devises  of  land  are  generally  deemed  specific:  fund  alone:  Balliet'ii  Ajipeul,  14  Pa.  St.  451. 
Wallcer  v.  Parlcer,  13  Pet.  IGC;  llddcy  v.  Top-  A  devise  of  lauds  subject  to  the  payment  of  a 
7)an,45N.  H.  243;  2  Williamson  E.xecutors,  1170.  sum  of  money  creates  a  demonstrative  legacy 
They  were  so  regarded  at  common  huv:  Estate  as  to  the  sum:  Kuecht'a  App<al,  71  Id.  333. 
of  Woodioorth,  31  Cal.  595.  But  under  the  For  other  explanations  and  examples  of  de- 
California  statute  they  may  be  general:  Id.  monsti'ative  legacies,  see  Widlace  v.  Wuliace, 

253 


8§  1358-1361  ACQUISITION  OP  PROPERTY.  [Div.  II,  Part  IV, 

23  N.  H.  154:  Corhin  v.  Miller,  19  ftratt.  438;  Subd,  3.     Annuities  commence  at  the  tea- 

Giddings  V.  Seivard,  IGN.  Y.  3G5.   The  cliarac-  iator's  death:  Sec.  13GS. 

teristics  of  this  species  of  legacy  are  that  it  does  Subd.  4.     Residuary  legaoiea  are  by  this 

not  fail  l>y  tlie  destruction  of   the  fund  from  section  limited  "to  t'le  residue  after  all  the 

which  it  was  to  he  paid,  and  that  it  does  not  bequests  of  the  will  are  discharged: "  Commia- 

abate  with  the  general  legacies.     The  lirst  of  sioners'  note. 

thesepropositionsisdeclaredintheabovesection,  Subd.  5.    General  legacies,  payable  when: 

the  latter  fiiKlssupport  in  section  1302, /)0N^  ami  See  sec.  1368,  j'o.si.     Realty  wheth.r  the  sub- 

the  various  decisions  and  text-books  treatin.;  of  ject  of   a  general  legacy:  See  aujjia  in   note, 

legacies:    Sue  2  Wdliams  on  Executors,   1160;  under  subd.  1. 
Walton  V.  Walton,  11  Am.  Dec.  469,  in  note. 

.1358.    Properlif  of  intestate  chargeable  with  debts. 

Sec.  1358.  When  a  person  dies  intestate,  all  his  property,  real  and  personal, 
without  any  distinction  between  tliein,  is  chargeable  with  the  payment  of  his 
debts,  except  as  otherwise  provided  in  this  code  and  the  Code  of  Civil  Proced- 
ure. [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  234;  took 
effect  Jul ijl,  1874.] 

All  property  chargeable  "with  debts:  Code  Order  of  payment  of  debts:  Code  Civ. 
Civ.  Proc,  sec.  IT)  16.  Proc,  sec.  1643. 

Debts  to  bo  paid  from  •what:  Code  Civ.        Provision  for  support  of  the  family:  Code 
Proc,  sec.  I.IIG;  sees.  1562  et  seq.  of  the  same;     Civ.  Proc,  sees.  14G4  et  setj. 
eec.  1359,  infra. 

1359.  Order  of  resort  to  property  for  payment  of  debts. 

Seo.  1359.  The  property  of  a  testator,  except  as  otherwise  specially  provided 
for  in  this  code  and  the  Code  of  Civil  Procedure,  must  be  resorted  to  for  the 
payment  of  debts  in  the  following  order: 

1.  The  property  which  is  expressly  appropriated  by  the  will  for  the  payment 
of  the  debts; 

2.  Property  not  disposed  of  by  the  will; 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary  legatee; 

4.  Px'operty  which  is  not  specifically  devised  or  bequeathed;  and, 

5.  All  other  property  ratably.     Before  any  debts  are  paid,  the , expenses  of 

the  administration  and  the  allowance  to  the  family  must  be  paid  or  provided 

for.     [Amendmeyit,  approved  March  30,  1874;   Amendments  1873-4,   234;  took 

effect  July  1,  1874.] 

Payment  of  debts:  See  sections  referred  to  Payment  of  legacies:  See  next  section  and 
in  note  to  section  1358,  supra.  note 

1360.  Order  of  resort  to  property  for  payment  of  legacies. 

Sec.  13G0.  The  property  of  a  testator,  except  as  otherwise  specially  provided 
in  this  code  and  the  Code  of  Civil  Procedure,  must  be  resorted  to  for  the  pay- 
ment of  legacies  in  the  following  order: 

1.  The  i^roperty  which  is  expressly  appropriated  by  the  will  for  the  payment 
of  the  legacies: 

2.  Property  not  disposed  of  by  the  will; 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary  legatee; 

4.  Property  which  is  [not]  specifically  devised  or  bequeathed.     [Amendment, 

approved  March  30,  1874;  Amendments  1873-4,  235;  took  effect  July  1,  1874.] 

Payment  of  legacies.— When  legacies  are        Legacies  liable  for  debis :  See  Code  Civ. 
due:  Sec.  1363,  po-'^t;  when  may  be  paid:  Code    Proc,  sees.  1563  et  acq. 
Civ.  Proc,  sees.  1658  et  seq. 

1361.  Same. 

Sec.  13G1.  Legacies  to  husband,  widow,  or  kindred  of  any  class  are  charge- 
able only  after  legacies  to  persons  not  related  to  the  testator. 

Legacies  to  kindred. — "The  rule  of  the  is  presumed  to  be  the  natnrr.l  inclination  of  the 
text  seems  to  be  so  well  founded  in  natural  testator,  that  approbation  is  accorded  to  it, 
justice,  and  to  accord  so  nearly  with  that  which    notwithstanding  iho  converse  u  laid  down  in 

254 


TmsVI,  Chap.  m.I  GEXERAL  PROVIS-IOXS.  §§  1362-13&7 

Redf.  on  "Wills,  ed.  1866,  pt.  2,  p.  552,  snb'l,  12;  be  exempt  from  al^atement,  made  to  a  wife  or 

where,  too,  it  is  conceded  that  in  all  probability  cIiiM  destitute  of  other  provision.     This  was  so 

other  legacies  would  not  ha%-e  been  made  if  the  held  in  Duncan  v.  AH,  3  Pa.  St.  3S2,  Gibson, 

testator  could  have  supposed  that  the  legacies  C.  J.:"  C(jmmissiouers' note, 
to  those  naturally  dependent   on    him   wotdd         A  general  pecuniary  legacy  to  a  wife  in  lien 

have  from  any  cause  failed.     "When  a  widow  of  dower  does  not  al)ate  with  other  pecuniary 

receives  in  lieu  of  her  dower,  the  legacy  is  [ire-  legacies,  but  must  be  paid  in  full  if  tliere  are 

ferred  as  a  consideration;  and  so  niiy  a  legacy  sulBcient  assets:  Potter  v.  BrowUy  11  II.  I.  232. 

1362.  Ahatement. 

Sec.  13G2,  Abatement  takes  place  in  any  class  only  as  between  legacies  of 
that  class,  unless  a  different  intention  is  expressed  in  the  will. 

Abatement. — "A  manifestly  proper  rule:"  Legacies,  c.  5.  The  provisions  of  the  code  on 
Commissioners  comment.  See  the  subject  dfs-  this  suljject,  especially  as  regards  demonstra- 
discussed  in  2  Williams  on  Executors,  13.'j9  et  tive  legacies,  are  collected  and  considered  in 
Beq.;  2  Redf.  on  Wills,  c.  4,  sec.  3;  1  Roper  on    Estate  of  Apple,  5  West  Coast  JKep.  518. 

1363.  Specific  devise  or  legacy. 

Sec.  13G3.  In  a  specific  devise  or  legacy  the  title  passes  by  the  will,  but 
possession  can  only  be  obtained  from  the  personal  representative;  and  he  may 
be  autliorized  by  the  superior  court  to  sell  the  property  devised  and  bequeathed 
in  the  cases  herein  provided.  [Amendv^ent,  apjrroved  April  G,  1880;  Amendments 
1880,  8  {Ban.  ed.  127);  took  effect  immediately.] 

Eow  title  passes  in  cases  of  intestacy:  See  sec.  1384,  post. 

1334.    Ileir'ii  conveyance  good  unless  ivill  is  proxred  within  four  yeant. 

Sec.  13u-4.  The  rights  of  a  purchaser  or  incumbrancer  of  real  property,  in 
good  failh  and  for  value,  derived  from  any  person  claiming  the  same  by  suc- 
cession, are  not  impaired  by  any  devise  made  by  the  decedent  from  whom 
succession  is  claimed,  unless  the  instrument  containing  such  devise  is  duly 
proved  as  a  will,  and  recorded  in  the  office  of  the  clerk  of  the  superior  court 
having  jurisdiction  thereof,  or  unless  written  notice  of  such  devise  is  filed 
with  the  clerk  of  the  county  where  the  real  property  is  situated,  within  four 
years  after  the  devisor's  death.  [Amendment,  approved  April  Q,  1880;  Amend- 
ments 188n,  8  {Ban.  ed.  127);  took  effect  immediately.] 

Recording  ■will:  See  Code  Civ.  Proc.,  sees,  tee  would  be  authorized  to  take  in  many  cases 

1311,   l.ils.  of  protracted  contests  long  prior  to  admission 

R3COrd:"n3  notice  of  devise. — "Recording  of  the  will  to  probate;  one  year  being  ordi- 

the  wriiien  notice  of  devise  is  iuten<led  to  ob-  narily  allowed  in  which  to  ascertain  indebted- 

viate  any  delays  in  recording  the  will  occa-  ness  and    pay   legacies,    in    accordance    with 

sioned    Ijy  contesting  its  probate,   as,  in  the  amount  of  assets:  Redf.  on  ^Vills,  ed.  1860,  pt. 

absence  of  any  restriction  in  the  will,  the  lega-  2,  p.  564,  sec.  59:"  Commissioners'  note. 

1365.    Possession  of  legatees. 

Sec  13G5.  Where  specific  legacies  are  for  life  only,  the  first  legatee  must 
sign  a7id  deliver  to  the  second  legatee,  or,  if  there  is  none,  to  the  personal 
representative,  an  inventoiy  of  the  property,  expressing  that  the  same  is  in  his 
custody  for  life  only,  and  that,  on  his  decease,  it  is  to  be  delivered  and  to 
remain  to  the  use  and  for  the  benefit  of  the  second  legatee,  or  to  the  personal 
representative,  as  the  case  may  be. 

13G6.    Bequest  of  interest. 

Sec  13GG.  In  case  of  a  bequest  of  the  interest  or  income  of  a  certain  sum  or 
fund,  the  income  accrues  from  the  testator's  death. 

Annuities  commence  at  testator's  death:  Sec.  1368,  ivfra. 

Accumulationa:  See  sees.  722,  ante,  et  seq. 

1367.    Satisfaction  of  legacy. 

Sec  13G7.  A  legacy,  or  a  gift  in  contemplation,  fear,  or  peril  of  death,  may 
be  satisfied  before  death.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  235;  took  effect  July  1,  1874.] 

255 


§§  13GS-13T6  ACQUISITION  OF  PROPERTY.  [Drv.  11.  liKT  IV, 

1338.    Legacies,  mlien  due. 

Sec.  13G8.  Legacies  are  due  and  deliverable  at  the  expii'ation  of  one  year 
after  the  testator's  decease.     Annuities  comiuence  at  the  testator's  decease. 

Legacies  payable  cifter  four  months:  See  isec.  lUuS. 

1369.  Iii(erei4.. 

Sec.  13G0.  Leji^acies  bear  interest  from  the  time  when  they  are  due  and  pay- 
able, except  that  legacies  for  maintenance,  or  to  the  testator's  widow,  beax 
interest  from  the  testator's  decease. 

Intere-t  upon  Is^aoies. — Where  ths  testa-     the  adoption  of   the  Civil  Code,  Jannary   1^ 
tor  died  Leiore  the  codea  went  into  effect,  the     1873:  Dunne  v.  Ma.-itlck,  50  Cul.  J.H. 
interest  -upon  legacies  undistributed  runs  from 

1370.  GondriicUon  of  these  rules. 

Sec.  1370.  The  four  preceding  sections  are  in  all  cases  to  be  controlled  by  a 
testator's  express  intention. 

1371.  Executor  -nccordinrj  to  the  tenor. 

Sec.  1371.  Where  it  appears,  by  the  terms  of  a  -will,  that  it  was  the  inten- 
tion of  the  testator  to  commit  the  execution  thereof  and  the  administration  of 
bis  estate  to  any  person  as  executor,  such  person,  although  not  named  executor, 
is  entitled  to  letters  testamentary  in  like  manner  as  if  he  had  been  named 
executor. 

"On  the  general   principle  which  reriulres        EseoutOTS,  their  appointm3iit  generally, 
intention  of    the  testator  to  be  given  ettect;"     Code  Civ.  Proe.,  sees.  1349  et  se(|. 
Commissioners'  note. 

1372.  Poioer  to  appoint  is  invalid. 

Sec.  1372.     An  authority  to  an  executor  to  appoint  an  executor  is  yoid. 
See  same  principle,  Code  Civ.  Proc,  sec.  1353. 

1373.  Executor  not  to  act  till  qualified. 

Sec.  1373.  No  person  has  any  power,  as  an  executor,  until  he  qualifies, 
except  that,  before  letters  have  been  issue  1,  he  may  pay  funeral  charges  and 
take  necessary  measures  for  the  preservatioi  of  the  estate. 

Qualiloation  of  esscutor:  See  Code  Civ.  Payrnent  of  debts:  See-«i/jra,  sec.  1359, 
Proc,  sees.  1353  et  stq.  and  note. 

1374.  Provisiovs  as  to  revocations. 

Sec.  1374.  The  provisions  of  this  title  in  relation  to  the  revocation  of  wills 
apply  to  all  wills  made  by  any  testator  living  at  the  expiration  of  one  year  from 
the  time  it  takes  effect. 

1375.  Execution  and  construction  of  prior  wills  not  affected. 

Sec.  1375.  The  provisions  of  this  title  do  not  impair  the  validity  of  the  execu- 
tion of  any  will  made  before  it  takes  effect,  or  affect  the  construction  of  any 
Buch  will. 

Code  not  retroactive  as  to  ■wills:  Soe  will  made  before  the  codes  went  into  effect  ia 
similar  construction  of  statute  regarding  a  will  to  be  construed  under  the  statutes  iu  force 
made  before  its  passage,  but  the  testator  dying  wlieu  it  waa  made;  Edate  of  Pj'aelb,  48  Id.  643. 
after:  Grimfs's  Edate  v.  A^orris,  GCal.  G21.     A 

1376.  Law  governing  validity  and  interprctalion. 

Sec.  137G.  The  validity  and  interpretation  of  wills,  wherever  made,  are  gov- 
erned, when  relating  to  property  witbin  this  state,  by  the  law  of  this  state. 
[Amendment^  approved  3Iarch  30, 1874;  Amendments  1873-4,  235;  took  effect  July 
I,  1874.] 

See  A^07Ti8  v.  Ilarria,  15  CaL  226. 

256 


Title  VII.] 


SUCCESSION 


§§  1S77  1CS5 


13T7.   lAability  of  hencficiaries  for  testator's  obligations. 

Sec.  1377.  Those  to  whoin  property  is  given  by  will  are  liable  for  the  obli- 
gations of  the  testator  in  the  cases  and  to  the  extent  prescribed  by  the  Code  of 
Civil  Procedure. 


The  commissioners,  in  their  note,  say:  "  The 
tliree  chapters  ooaiprising  the  title  on  wills  em- 
bnu'es  all  the  laws  of  our  state  relating  to  the 
subject  noL  contained  in  title  1 1  of  the  Code  of 
Civil  Procedure."  And  in  their  report  explain 
that  "practical  experience  may  demonstrate 
the  usefulness  of  oLher  provisions,  but  those 


given  are  snoposed  to  provide  for  every  con- 
ceivable contingency." 

Lagacy  charged  on  land. — A  devisee  ac- 
cepting a  devise  charged  with  the  payment  of 
a  legacy  becomes  personally  liable  therefor: 
Diinne.  v.  Dunne,  8  West  Coast  Hep.  420;  S.  C, 
4  Id.  523, 


TITLE   VII. 

SUCCESSION. 
1383.    Succession  defined. 

Sec.  1383.     Succession  is  the  coming  in  of  another  to  take  tiie  property  of  one 
who  dies  without  disposing  of  it  by  will. 


Successfou. — *'  It  will  be  observed  tliat  the 
terai  '  succe^jsion  '  has  been  substituted  for  that 
of  'descents  and  distributions,'  so  familiar  to 
all.  Tliis  has  not  been  done  without  snliicient 
grounds.  TI,e  t-rm  'descents'  and  'distribu- 
tion;,' hitherto  used  in  this  state  to  denote  the 
devolution  of  an  inheritance,  was  derived  from 
the  ancient  principle  of  the  English  law,  that 
an  inheritance  could  never  ascend,  or  pass  from 
son  to  fatker,  but  must  descend,  or  pass  to  de- 
scendants. Ikit  as  the  American  law  allows 
property  1o  pass  in  both  ways,  there  arises  an 
incon  -'vuity  in  continuing  this  use  of  the  term 
— an  incongruiLy  which  causes  practical  embar- 


rassment, since  the  word  '  descendants '  must 
still  b-'  confiued  to  its  strict  meaning,  and  can- 
not embrace  all  tliose  who  may  take  by  onr 
statute  of  dcsceEts,  so  called,  and  the  word  '  de- 
scend' must  often  be  used  in  the  same  vie\r 
and  in  contradistinction  to  the  devolution  of 
property  in,  the  ascending  Ime.  The  term- 
'succession'  is  the  more  appropriate  phrasj  of 
the  civil  law,  and  tliis,  already  in  conimou  itse 
amoiigns,,lias  been  adopted  to  denote  the  trans- 
mission of  the  property  of  a  decedent  by  opera- 
tii):i  of  l;iw.:"'    O.)m;nis3ioners'  note. 

Section. is  cited  in  Estaie  of  Jleaden,  52  Cal. 
298.. 


1384.    Succession  to  estates  of  intestate. 

Sec.  1384.     The  property,  both  real  and  personal,  of  one  who  dies  without 

disposing  of  it  by  will  passes  to  the  heirs  of  the  intestate,  subject  to  the  control 

of  the  probate  court,  and  to  the  possession  of  any  administi'ator  appointed  by 

that  court,  for  the  pui'poses  of  administration.     [Amendment,  approved  March 

30,  1874;  Amendments  1873-4,  23G;  took  effectJuhj  1,  1874.] 

See  Code  Civ.  Proc,  sec.  14u2.  force  at  the  time  of  the  death:  Jiich  v.  Tiifjbs, 

la  whom  intestate's  property  vests. —    41  Cal.  .34. 


The  section,  as  originally  adopted,,  provided 
that  the  property  of  an  intestate  ah.ould  pass 
to  hi3  personal  rei>resentativcs  as  trustees,  to 
manage  and  distriljuto.  The  above  amend- 
ment was  adopted  at  the  suggestiim  of  the  code 
examiniTS,  who  said:  "The  amendment  here 
made  restores  the  law  as  it  stood  before  the 
coile.  Great  cniljarrassment  muse  often  follow 
from  the  adoption  of  any  other  rule  le  uling  to 
questions  as  lo  where  tlie  title  re  nains  after 
the  deatli  of  the  intestate,  and  before  the  ap- 
pointmei't  of  administrator,  and  also  upon  the 
death  or  resignation  of  an  administrator  or  an 
executor." 
The  inheritance  is  regulated  l)y  the  law  in 

1385.  Personal  representatives. 

Section  138.")  was  repealed  by  act  approved  March  30,  1874;.  AmeDdmenta  1S73-4,  236;  took 
effect  July  1,  1874. 

1386.  Succession  to  and  distribution  of  propertij. 

Sec.  1o8G.     "When  any  person  having  title  to  any  estate  not  otherwise  limited 
by  marriage  contract  dies,  without  disposing  of  the  estate  by  will,  it  is  suc- 
Civ.  CoDK— 17  257 


For  example,  the  act  of  April  2,  18G0,  Stats, 
18GG,  8-4,  has  no  application  to  the  estates  of 
person  dying  before  the  adoption  of  our  p:  obata 
system.  The  estates  of  s.ich  persons  djvolvo 
according  to  the  Mexican  law:  Copinii<j(^r  v. 
L'lcc,  o3'ld.  403. 

Upon  the  death  of  the  ancestor,  the  heir  be- 
comes vested  at  once  with  the  full  property: 
Urcnham  v.  Storif,  33  Cal.  179.  The  heir  tjkea 
by  descent,  the  devisee  bv  purchase:  E^ta'e  of 
Doniihne,  .30  Id.  32D.  Tlie  title  to  i)ersom-.l 
estaie  of  the  decedent  vests  in  the  heir,  wi:h  a 
right  of  i)033essiou  i.T  the  personal  representa- 
tive: Jahiin  V.  NolUmj,  '20  Id.  507. 


S  1SS6  ACQUISITION  OF  PROPERTY.  piv.  II,  Part  IV, 

ceeded  to  and  must  be  distributed,  unless  otherwise  expressly  provided  in  this 

code  and  the  Code  of  Civil  Procedure,  subject  to  the  payment  of  his  debts,  in 
tbe  following  manner: 

1.  If  the  decedent  leave  a  surviving  husband  or  wife,  and  only  one  child, 
Or  the  lawful  issue  of  one  child,  in  equal  shares  to  the  surviving  husband  or 
wife  and  child,  or  issue  of  such  child.  If  the  decedent  leave  a  surviving 
husband  or  wife,  and  more  than  one  child  living,  or  one  child  living  and  the 
lawful  issue  of  one  or  more  deceased  children,  one  third  to  the  surviving  hus- 
band or  wife,  and  the  remainder  in  equal  shares  to  his  children  and  to  the 
lawful  issue  of  any  deceased  child  by  right  of  repi'esentation;  but  if  there  be 
no  child  of  the  decedent  living  at  his  death,  the  remainder  goes  to  all  of  his 
lineal  descendants;  and  if  all  the  descendants  are  in  the  same  degree  of  kindred 
to  the  decedent,  they  share  equally,  otherwise  they  take  accoi'ding  to  the  right 
of  representation.  If  the  decedent  leave  no  surviving  husband  or  wife,  but 
leave  issue,  the  whole  estate  goes  to  such  issue;  and  if  such  issue  consists  of 
more  than  one  child  living,  or  one  child  living  and  the  lawful  issue  of  one  or 
jnore  deceased  children,  then  the  estate  goes  in  equal  shares  to  the  children 

[.giving,  or  to  the  child  living,  and  the  issue  of  the  deceased  child  or  children  by 
: right  of  representation. 

2.  If  the  decedent  leave  no  issue,  the  estate  goes,  one  half  to  the  surviving 
f  husband  or  wife,  and  the  other  half  to  the  decedent's  father  and  mother,  in 
.«qual  shares,  and  if  eitber  be  dead,  the  whole  of  said  half  goes  to  the  other; 

if  there  be  no  father  or  mother,  then  one  half  goes  in  equal  shares  to  the 
'brothers  and  sistei-s  of   the  decedent,  and  to  the  children  of   any  deceased 

brother  or  sister  by  right  of  representation.     If  the  decedent  leave  no  issue, 

nor  husband,  nor  wife,  the  estate  must  go  to  his  father  and  mother,  in  equal 
■  Bnares,  or  if  either  be  dead,  then  to  the  other. 

o.  If  there  be  neither  issue,  husband,  wife,  father,  nor  mother,  then  in  equal 
-shares  to  the  brothers  and  sisters  of  the  decedent,  and  to  the  children  of  any 
•  deceased  brother  or  sister  b}'  right  of  representation. 

5.  If  the  decedent  leave  a  surviving  husband  or  wife,  and  neither  issue, 
.  father,  mother,  brother,  nor  sister,  the  whole  estate  goes  to  the  surviving  hus- 
'  band  or  wife. 

G.  If  the  decedent  leave  neither  issue,  husband,  wife,  father,  mother,  brother, 
;  nor  sister,  the  estate  must  go  to  the  next  of  kin  in  equal  degree,  excepting  that 

when  there  are  two  or  more  collateral  kindred  in  equal  degree,  but  claiming 
;  through  different  ancestors,  tho^e  who  claimed  through  the  nearest  ancestors 

must  be  preferred  to  those  claiming  through  an  ancestor  more  remote. 

7.  If  the  decedent  leave  several  children,  or  one  child  and  the  issue  of  one 
-or  more  children,  and  any  such  surviving  child  dies  under  age,  and  not  having 

been  married,  all  the  estate  that  came  to  the  deceased  child  by  inheritance 
from  such  decedent  descends  in  equal  shares  to  the  other  children  of  the  same 
parent;  and  to  the  issue  of  any  such  other  children  who  are  dead,  by  right  of 
representation. 

8.  If  at  the  death  of  such  child,  who  dies  under  age,  not  having  been  mar- 
ried, all  the  other  children  of  his  parents  are  also  dead,  and  any  of  them  have 
left  issue,  the  estate  that  came  to  such  child  by  inheritance  from  his  parents 
descends  to  the  issue  of  all  other  children  of  the  same  parent;  and  if  all  the 
issue  are  in  the  same  degree  of  kindred  to  the  child,  they  share  the  estate 
e<iually,  otherwise  they  take  according  to  the  right  of  representation. 

258 


Title  VII.]  SUCCESSIOX.   '  §1.-587 

9.  If  tlie  decedent  be  a  widow  or  widower,  and  leave  no  kindred,  and  tlie 
estate,  or  any  portion  thereof,  was  common  property  of  such  decedent,  and  hia 
or  her  deceased  spouse,  while  such  spouse  was  living,  such  common  j^roperty 
shall  go  to  the  father  of  such  deceased  spouse,  or  if  he  be  dead,  to  the  mother. 
If  there  be  no  father  nor  mothi^r,  then  such  property  shall  go  to  the  brothers 
and  sisters  of  such  deceased  spouse,  in  equal  shares,  and  to  the  lawful  issue 
of  any  deceased  brother  or  sister  of  such  deceased  spouse,  by  right  of  repre- 
sentation. 

10.  If  the  decedent  leave  no  husband,  wife,  or  kindred,  and  there  be  no 
heirs  to  take  his  estate,  or  any  portion  thereof,  under  subdivision  nine  of  this 
section,  the  same  escheats  to  the  state  for  the  support  of  common  schools. 
[Ainnulnient,  approved  April  23,  1880;  Amendinenls  1880, 14  {Ban.  ed.  412);  tuoh 
cffeclfrom  pasmge.] 

Tilt!  oriainal  section  was  founded  on  Stats,  inherits,  the  latter  taking  before  the  grand- 

1850,  2 1 'J,' sec    1;  18G2,  5G1>,  sec.  1.  father. 

Dc3wGiitofintestate'sestates.— "Descend-  If  the  intestate  left  neither  issue,  husband 

anta  "  of  :i  person  are  bis  chil<lren,  grandcliil-  or  wife,  nor  father,  the  estate  passed,  under  the 

dreii,  iuid   Iheir  children,  to  the  remotest  de-  former  statute,  in  equal  sliarca  to  the  brotli- 

grue;  Jiwcll  v,  Jeivell,  28  Cal.  232.     "Children  "  ers  and  sisters,  and  mother,  except  where  such 

as  u  ;cd  in  sulidi»'ision  2  means  the  immediate  estate  was  acquired  by  the  deceased  by  iuheri- 

offa,  iring  of  the  deceased  brotheror  sister:  Estate  tance,  in  which  event  it  went  to  the  brothers  and 

of  \7iUi<im  Curry,  39  Id.  529.  sisters  exclusive  of  the  mother:  Estate  of  Don- 

Subd.  1.  As  an  example  of  the  whole  estate  ahte,  3G  Cal.  329. 

goiii^  to  the  issue,  see  J^arsoii  v.  Pearnon,  46  Intestate's  estates. — A  decedent  who  lefta 

Cal.  <C9;  and  of  one  half  the  separate  estate  writing  entitled  to  probate  did  not  die  intes- 

and  community  property  going  to  the   issue:  tate:  Extnte  of  Barton,  52  Cal.  bliS. 

Se  •  Dwha.ian's  Estate,  8  Id.  507.  Adrainistration    of    intestates'    estates: 

Subd.  2.  If  tlie  husbaml  leave  no  issue,  the  Code  Civ.  Proc,  sees.  1363  et  seq. 

estati!    goes    to    the    widow  and    the    father  "Wlia:  is  a  testament:  See  Code  Civ.  Proc, 

equally:     Jewell    v.    Jewell,     28     Cal.      232;  sees.  1312  and  13G5,  and  notes. 

with  respect  to  the  community  property,  see  Illegitimates. — This  section  does  not  apply 

Bees.     1  tUI,    1402,    post.     In    llardenbpnjk   v.  to  illegitimates;  their  case  is  covered  by  sections 

Baron,  3.J  Cal.  336,  the  father  inherited;  Estate  1387,  1388,  and  each  system  ia  complete:  Estate 

of  (If  C'-'stro  v.  Barry,  18  Id.  9G,  is  interesting  ofMatjee,  63  Cal.  414. 
as  showing  when  the  father  and  when  the  sister 

1387.    lllrgitimate  children  to  inherit  in  certain  events. 

Stc.  1387.  Every  illegitimate  child  is  an  heir  of  an  person  who,  in  writing, 
signed  in  the  presence  of  a  competent  witness,  acknowledges  himself  to  be  the 
father  of  such  child;  and  in  all  cases  is  an  heir  of  his  mother;  and  inherits  hia 
or  her  estate,  in  whole  or  in  part,  as  the  case  may  be,  in  the  same  manner  as  if 
he  had  been  born  in  lawful  wedlock;  but  he  does  not  represent  his  father  or 
mother  by  inheriting  any  part  of  the  estate  of  his  or  her  kindred,  either  lineal 
or  collateral,  unless,  before  his  death,  his  parents  shall  have  intermarried,  and 
his  father,  after  such  marriage,  acknowledges  him  as  his  child,  or  adojjts  him 
into  his  family;  in  which  case  such  child  and  all  the  legitimate  children  are  con- 
sidered brothers  and  sisters,  and  on  the  death  of  either  of  them,  intestate,  and 
without  issue,  the  others  inherit  his  estate,  and  are  heirs,  as  hereinbefore  pro- 
vided, in  like  manner  as  if  all  the  children  had  been  legitimate;  saving  to  the 
father  and  mother,  respectively,  their  rights  in  the  estates  of  all  the  children  in 
like  manner  as  if  all  had  been  legitimate.  The  issue  of  all  marriages  null  in 
law,  or  dissolved  by  divorce,  are  legitimate. 

Stats.  IJS.IO,  219,  sec.  2.  gitimate  child  will  inherit  the  estate  of  an  ille- 

Illegitimatecliildren,  as  heirs  of  the  mother,  gitimate  aunt    through    his   grandmother,    in 

differ   nothing  in  law  from  the  oilier  children;  preference  to  the  sister  of  that  grandmother: 

theiH-forc  i.n  iilegiliniate  child  omitted  uninten-  tsiate  of  AIwicp,  G3  Cal.  414. 

tioually  fmm  the  will  of  its  mother  takes  as  Issue  of  null  marriages  legitimate:  Gra- 

though   the  mother  had  died   intestate:   Estate  ka7u  v.  B' unett,  2  Cal.  303;  Estate  of  IVardtU, 

of  U  aided,  67  Cal.  484.     The  son  of  an  ille-  57  Id.  484. 

250 


§§  1388-1395  ACQUISITION  OF  PROPERTY.  [Drv.  U,  Part  IV, 

1388.  The  mother  is  successor  to  illegitimate  child. 

Sec.  1388.  If  an  illegitimate  child,  who  has  not  been  acknowledged  or 
adopted  by  his  father,  dies  intestate,  without  lawful  issue,  his  estate  goes  to 
his  mother,  or  in  case  of  her  decease,  to  her  heirs  at  law. 

Stat3.    1850,  220,  sec.   .3,  modified  by  add-  of  Estate  of  Magee,  63  Cal.  414,  there  cited, 

ing  "has  not  been  acknowledged  or  adopted  by  where,  by  reason  of  that  and  of  this  section,  an 

his  father."  illegitimate  child's  nephew  took  her  estate  in 

Mother  inheriting  from  illegitimate  child:  preference  to  its  cousins. 
See  note  to  previous  section,  especially  the  case 

1389.  Degrees  of  kindred,  how  computed. 

Seo.  1389.  The  degree  of  kindred  is  established  by  the  number  of  gener- 
ations, and  each  generation  is  called  a  degree. 

Stats.  1850,  221,  sec.  4.  cept  in  cases  relating  to  descent  and  distribu- 

Degrees  of  co  jsanguinitj  are  computed  tion,  when  the  rule  of  the  civil  law  prevails: 
in  this  state  according  to  the  common  law,  ex-    People  v.  De  la  Guerra,  24  Cal.  73. 

1330.    Direct  and  collateral  consanguinity. 

Sec.  1390.  The  series  of  degrees  forms  the  line;  the  series  of  degrees  between 
persons  who  descend  from  one  another  is  called  direct  or  lineal  consanguinity; 
and  the  series  of  degrees  between  persons  who  do  not  descend  from  one  another, 
but  spring  from  a  common  ancestor,  is  called  the  collateral  line  or  collateral 
consanguinity. 

La.  Code,  art.  8SG;  Stats.  1850,  221,  sec.  5. 

1391.  Direct  line  descending,  and  direct  line  ascending. 

Sec.  1391.  The  direct  line  is  divided  into  a  direct  line  descending  and  a 
direct  line  ascending.  The  first  is  that  which  connects  the  ancestors  with  those 
who  descend  from  him;  the  second  is  that  which  connects  a  person  with  those 
from  whom  he  descends. 

La.  Code,  art.  886. 

1392.  Degrees  in  direct  line. 

Sec.  1392.  In  the  dii-ect  line  there  are  as  many  degrees  as  there  are  gener- 
ations. Thus  the  son  is,  with  regard  to  the  father,  in  the  first  degree;  the 
grandson  in  the  second;  and  vice  versa  with  regard  to  the  father  and  grand- 
father toward  the  sons  and  grandsons. 

La.  Code,  art.  887. 

1393.  Degrees  in  collateral  line. 

Sec.  1393.  In  the  collateral  line  the  degrees  are  counted  by  generations, 
from  one  of  the  relations  up  to  the  common  ancestor,  and  from  the  coumion 
ancestor  to  the  other  relations.  In  such  computation  the  decedent  is  excluded, 
the  relative  included,  and  the  ancestor  counted  but  orce.  Thus  brothers  aro 
related  in  the  second  degree;  uncle  and  nephew  in  the  third  degree;  cousius- 
german  in  the  fourth,  and  so  on. 

La.  Code,  art.  888. 

1394.  Relatives  of  the  half-blood. 

Sec.  1394.  Kindred  of  the  half-blood  inherit  equally  with  those  of  the  whole 
blood  in  the  same  degree,  unless  the  inheritance  comes  to  the  intestate  by 
descent,  devise,  or  gift  of  some  of  his  ancestors,  in  which  case  all  those  who 
are  not  of  the  blood  of  such  ancestors  must  be  excluded  from  such  inheritance. 

Stats.  1850.  221,  sec.  4. 

1395.  Advancements  constitute  part  or  distributive  share. 

Sec.  1395.  Any  estate,  real  or  personal,  given  by  the  decedent  in  his  life-time, 
as  an  advauoement  to  any  child,  or  other  lineal  descendant,  is  a  x>art  of  the 

260 


Title  VIL]  SUCCESSION.  §§  1396-1401 

estate  of  the  dececlent  for  tbe  purposes  of  division  and  distribution  thereof 
among  his  issue,  and  must  be  taken  by  such  child,  or  other  lineal  descendant, 
toward  his  share  of  the  estate  of  the  decedent. 
Advancements:  See  sees.  1309,  1351,  ante. 

1396.  Advancements,  when  too  miuh,  or  not  enough. 

Sec.  1396.     If  the  amount  of  such  advancement  exceeds  the  share  of  the  heir 

receiving  the  same,  he  must  be  excluded  from  any  further  portion  in  the  division 

and  distribution  of  the  estate,  but  he  must  not  be  required  to  refund  any  part 

of  euch  advancement;  and  if  the  amount  so  received  is  less  than  his  share,  he 

is  entitled  to  so  much  more  as  will  give  him  his  full  shai*e  of  the  estate  of  t}*e 

decedent. 

Advancemsnts:  "Stats.  18.50,  221,  sec.  6;  be   contin-^ent,   it    is    reckoned    an   advance- 

se:;  :us()  lleiif.  on  Wills,  9)3-910,  and  notes,  and  nient  after  becoming  ai)S(ilute.     Tliis  question 

cases  there  cited.     In  the  case  of  Edwardu  v.  is   considered   at   L'o^tlj    by   the   author   first 

Freeman,  '2  P.  Wnis.   4;)3^4,j,   the  subject  is  cited  supra,  but  the  toxt  is  its  own  rule,  sufii- 

thorouyhly   discussed.     An   annuity  i)rovided  ciently  clear,   and   easily   understood:"   Com- 

to   take    effeet   at   the    death    nf    the   fatiier;  missiouers'  note. 
Proud  V.    'J'urner,  Id.  uGO.     If  the   provision 

1397.  W}iat  are  adrancemenfs. 

Sec.  1397.  All  gifts  and  grants  are  made  as  advancements,  if  expressed  in 
the  gift  or  grant  to  be  so  made,  or  if  charged  in  writing  by  the  decedent  as  an 
advancement,  or  acknowledged  in  writing  as  such  by  the  child  or  other  suc- 
cessor or  heir. 

1333.    Value  of  adrancementfi,  hoio  determined. 

Sec.  I;i98.  If  the  value  of  the  estate  so  advanced  is  expressed  in  the  con- 
veyance, or  in  the  charge  thereof  made  by  the  decedent,  or  in  the  acknowledg- 
ment of  the  party  receiving  it,  it  must  be  held  as  of  that  value  in  the  division 
and  distribution  of  the  estate;  otherwise,  it  must  be  estimated  according  to  its 
value  when  given,  as  nearly  as  the  same  can  be  ascertained. 

1339.    WJien  heir  advanced  to  dies  before  decedent. 

Sec.  1399.  If  any  child,  or  other  lineal  descendant  receiving  advancement, 
dies  l)efore  the  decedent,  leaving  issue,  the  advancement  must  be  taken  into 
consideration  in  the  division  and  distribution  of  the  estate,  and  the  amount 
thereof  must  be  allowed  accordingly  by  the  representatives  of  the  heirs  receiv- 
ing the  advancement,  in  like  manner  as  if  the  advancement  had  been  made 
directly  to  them. 

1400.  InJieritance  of  husband  and  wife  from  each  other. 

Sec.  14:00.  The  provisions  of  the  preceding  sections  of  this  title,  as  to  the 
inheritance  of  the  husband  and  wife  from  each  other,  apply  only  to  the  separate 
property  of  the  decedents. 

1401.  Communiti/  propertij,  on  death  of  wife. 

Sec  1401.  UiDon  the  death  of  the  wife,  the  entire  community  property, 
without  administration,  belongs  to  the  surviving  husband,  except  such  portion 
thereof  as  may  have  been  set  apart  to  her,  by  judicial  decree,  for  her  supj^ort 
and  maintenance,  which  portion  is  subject  to  her  testamentary  disposition,  and 
in  the  absence  of  such  disposition  goes  to  her  descoudauts,  or  heirs,  exclusive 
of  her  husband.  [Ai)iendi)ien!,  approved  Murch  30,  1S7-1;  Aincndmenls  1873-4, 
238;  lix)k  effect  Jahj  1,  1874.  J 

See  note  to  next  section. 

261 


§§  1402-1403  ACQUISITION  01;^  PROPERTY.  [Div.  II,  Part  IV, 

1402.  Dii^lribidlon  of  common  properl;/  on  death  of  the  husband, 

Seo.  1402.  Upon  the  death  of  the  husband,  one  half  of  the  community 
property  goea  to  the  surviving  wife,  and  the  other  half  is  subject  to  the  testa- 
mentary disposition  of  the  husband,  and  in  the  absence  of  such  disiwsition, 
goes  to  his  descendants,  equally,  if  such  descendants  are  in  the  same  degree  of 
kindred  to  the  decedent;  otherv?ise,  according  to  the  right  of  representation; 
and  in  the  absence  of  both  such  disposition  and  such  descendants,  is  subject  to 
distribution  in  the  same  manner  as  the  separate  property  of  the  husband.  In 
case  of  the  dissolution  of  the  community  by  the  death  of  the  husband,  tha 
entire  community  property  is  equally  subject  to  his  debts,  the  family  allowance, 
and  the  charges  and  expenses  of  administration. 

Desoent  of  community  property. — On  the  of  the  party,  and  the  wife  in  ignorance  of  her 
rfea/Ao/'^^e  Awst  au/,  one  half  of  the  community  rights  wr J  not  be  barred  by  her  own  act  Irum 
property  vests  in  the  surviving  wife:  Hart  v.  claitning  her  share  in  the  community  property: 
Hohcrtson,  21  Cal.  .346;  notwithstanding  he  King  v.  L  !(jra>i'/e,  50  Id.  328. 
may  liave  attempted  to  dispose  of  it  by  will:  C^pontlu'dedtho/ the  wife,  under  the  eleventh 
Estate  of  Silvij,  42  Id.  210.  She  takes  half  section  of  the  act  of  13.30,  one  half  tlie  com- 
ouly  if  the  husband  has  descendants:  Jewll  v.  nmuity  property  vests  in  her  descendants,  tha 
Jewell,  28  Id.  232.  Her  riglit  to  tliis  propor-  other  laalf  going  to  the  husband:  Pa/iie  v. 
tion  of  the  community  property  is  postponed  to  Payne,  18  Cal.  201.  If  she  had  no  dcsct,-nd- 
thepaymentof  the  community  debts:  MorrUon  ants,  the  husband  would  take  the  entire  com- 
V.  Bowman,  20  Id.  337,  and  Packard  v.  m\\mty\)vo'^e.rty:Camm'mfjsv.Chevr'ier(Xo.l), 
Ardlaufs,  17  Id.  525.  10  Id.  519.     WiUi  respect  to  the  righis  of  a 

The  rule  as  to  the  wife's  title  to  half  the  deceased  wife's  heirs  to  maintain  ejeccment  for 
conunnnity  property  prevailed  also  under  the  the  community  property  where  the  wife  had 
Mexican  law:  Scott  v.  IVard.  13  Cal.  458.  been  divorced  from  her  husband,  sea  McLeoi-an 

The   husband   cannot  will   away   his  wife's     v.  Benton,  31  Id.  29. 
share  in  the  community  property:  Morrison  v.         Now    the    community  property,    upon    the 
L'o"-m(i?/,20Cal.  337.    Biitastoher  right  of  dec-     death  of  the  wife,  belongs  without  administi-a- 
tion  upon  such  a  betjuest,  see  same  case;  E'^tate     tioii  to  the  surviving  husband:  Moore  v.  Jones, 
of  Prey,  52  Id.  G58;  see  also  iVoe  v.  Splioalo,  54     G3  Cal.  12. 

Id.  207.  The  discinctive  element  of  an  election  Community  property  defined:  Sees.  1G3, 
is,  however,  a  full  understanding  of  the  rights     1G4,  ante. 

1403.  Inheritance  by  representation. 

Sec.  1403.  Inheritance  or  succession  "by  right  of  representation"  takeg 
place  when  the  descendants  of  any  deceased  heir  take  the  same  share  or  right 
in  the  estate  of  another  person  that  their  parents  would  have  taken  if  living. 
Posthumous  children  are  considered  as  living  at  the  death  of  their  parents. 

See  sec.  1310,  ante. 

1404.  Aliens  may  inherit,  xohen,  and  how. 

Sec.  1404.  Resident  aliens  may  take  in  all  cases  by  succession  as  citizens; 
and  no  person  capable  of  succeeding  under  the  provisions  of  this  title  is  pre- 
cluded from  such  succession  by  reason  of  the  alienage  of  any  relative;  but  no 
non-ret.ident  foreigner  can  take  b}''  succession  unless  he  appears  and  claima 
Buch  succession  within  five  years  after  the  death  of  the  decedent  to  whom  he 
claims  succession. 

Aliens  may  talic  by  succession:  Sec  sees,     property  is  constitutional:  State  v.  Eogers,  13 
671,  G72.  ante,  and   note.     An   act   pennitti:ig     Cal.  159. 
non-resident  aliens  to  inherit  reul  and  personal 

1405.  When  succesHlon  not  claimed,  properly  to  be  sold,  and  proceeds  deposited. 
Sec.  1405.     When  succession  is  not  claimed  as  provided  in  the  preceding 

section,  the  district  court,  on  information,  must  direct  the  attorney-general  to 
reduce  the  property  to  his  or  the  possession  of  the  state,  or  to  cause  the  same 
to  be  sold,  and  the  same  or  the  proceeds  thereof  to  be  deposited  in  the  state 
treasury  for  the  benefit  of  sucli  nou-resident  foreigner,  or  his  legal  representii- 
tive,  to  be  paid  to  him  whenever,  within  live  years  after  such  deposit,  proof  to 
the  satisfaction  of  the  state  controller  and  treasurer  is  produced  that  he  ia 
entitled  to  succeed  thereto. 

262 


TiTLB  Vin.]  WATER  RIGHTS.  {§  140G-1410 

1403.    When  the  property  and  estate  escheat  to  the  state. 

Sec.  140G.  TVlien  so  claimed,  the  evidence  and  the  joint  order  of  the  con- 
troller and  treasurer  must  be  filed  by  the  treasurer  as  his  voucher,  and  the 
property  delivered  or  the  proceeds  paid  to  the  claimant  on  filing  his  receipt 
therefor.  If  no  one  succeeds  to  the  estate  or  the  proceeds,  as  herein  provided, 
the  property  of  the  decedent  devolves  and  escheats  to  the  people  of  the  stale, 
and  is  placed  b}'  the  state  treasurer  to  the  credit  of  the  school  fund. 

1407.  Properly  escheated  subject  to  charges  as  otlicr  property. 

Sec.  1107.  Ileal  j)roperty  passing  to  the  state  under  the  last  section,  whether 
held  by  the  state  or  its  officers,  is  subject  to  the  same  charges  and  trusts  to 
which  it  would  have  been  subject  if  it  had  passed  by  succession,  and  is  also 
subject  to  all  the  provisions  of  Title  VIII.,  Part  III.,  of  the  Code  of  Civil  Pro- 
cedure. 

Escheated  estates:  See  Code  Civ.  Proc,  sees.  12G9-1272. 

1408.  Successor  liable  for  decedent's  obligations. 

Sec.  1408.  Those  who  succeed  to  the  property  of  a  decedent  are  liable  for 
his  obligations  in  the  cases  and  to  the  extent  prescribed  by  the  Code  of  Civil 
Procedure. 


TITLE  VIII. 

WATER  RIGHTS. 

This  title  went  into  effect  May  1,  1872;  Stats.  1871-2,  622. 

1410.    liighis  to  water  may  be  acquired  by  appropriation. 

Sec.  1410.  The  right  to  the  use  of  running  water  flowing  in  a  river  or  strea^n 
or  down  a  canon  or  ravine  may  be  acquired  by  appropriation. 

Drainage:  See  the  title  "Drainage"  in  Stat-  community  and  the  pecnliar  condition  of  thingi 

utes  in  Force;  see  also  Pol.  Code,  sec.  S44G,  and  in  this  stale  (for  whicli  there  is  no  precedent), 

note.  ratlier  than  any  absolute  rule  of  la.w  governing 

"Water  commissioners:  See  that  heading  in  such  cases.     The  absence  of  legislati<ai  on  tlii* 

Statutes  in  Puree,  and  see  statutes  at  the  end  subject  has  devolved  on  tlie  courts  tlie  neccs- 

of  tliis  title.  sity  of  framing  rules  for  tlie  protection  of  this 

Irn^ation:    See  statutes  at  the  end  of  this  great  interest,  and  in  determining  tliese  rjucs- 

title.  tions  we  Iiave  conformed,  r.s  nearly  as  possible. 

Water  rights  acquired  by  appropriation:  to  the  analogies  of  tlie  connnon  law.  Tlie  faci 
See  the  articles  by  Professor  Ponieroy,  running  early  manifested  itself  that  the  mines  could 
through  the  first  and  second  volumes  of  the  not  be  successfully  worked  without  a  pro- 
West  Coast  Reporter;  see  also  Gould  on  Water  prietorship  in  waters,  and  it  was  recognized 
Rights,  sees.  22S-240;  and  a  succinct  and  com-  and  maintained.  To  protect  those  who  bjr 
preheiisive  note  to  Heath  v.  WiUiamn,  43  Am.  their  energy,  industry,  and  capital  had  con- 
Dec.  '279.  structcd  canals  and   races  carrying  water  for 

The  ciootrine  applies  only  to  the  public  miles   into  parts  of   the   country  which   musfe 

lands  of  the  United  States :    See  Professor  have  otiierwise  remained  unfniitful  and  unde- 

Pouieroy's  articles  above  referred  to,  and  the  veloped,  it  was  held  that  the  first  appropriator 

not'j  to  I licitti  V.  Williams,  supra,  especially,  on  acquired  a  special  property  in  the  waters  thu» 

page  2S1  of  43  Am.  Dec.    But  there  being  noth-  approj)riated,  and  as  a  necessary  conscqnene* 

ing  to  show  the  coiitrary  in  the  record,  it  will  of  such  property,  might  invoke  all  legal  reme- 

be  piesuinc<l  that  the  land  through  which  the  dies  for  its  enjoyment  or  defense." 
stream  flowed  was  public  land:  Lyt'e  Crtek  W.         The  right,  thus  originating  in  the  needs  of  tho. 

Cu.  V.  I'rrdew,  1  West  Coast  Rep.  8G6.  people,  was  soon  conlirmed  by  the  courts,  and 

Generally. — The  law  of  private  appropria-  it  became,  and  still  is,  the  settled  doctrine  ol 

tion  of  waters  peculiar  to  the  states  and  terri-  the  Pacilic  states  and  territories  that  a  private 

lories  of  the  western  coast  took  its  rise  from  proprietorship  may  be  acquired  in  streams  of 

the  necessity  of  fostering  miring,  for  a  long  water  by  a  mere  prior  appropriation:  Irwin  r. 

period  the  principal  industry  in  those  sections.  Phillips,  5  Cal.  140;  IliU  v.  Newman,  Id.  445; 

Sa\ s Chief . Justice  Murray,  mJIoffmany.  stone,  Kethj  v.  Natoma  W.  Co.,  Old.  107;  lloffmanv. 

7  Cal.  4G,  4S:  "The  former  decisions  of  this  .S/ojjf,  7  Id.  40-  J/acris  v.  Z/icbic//,  Id.  2G1,  262j 

court,  ill  cases  involving  the  right  of  parlies  to  Crandall  v.  Woods,  8  Id.  13G;    Bear  River  etc 

appropriate  waters  for  mining  and  other  pur-  Co.  v.  N.  Y.  M.   Co.,  Id.  327;  lidl  v.  King, . 

I/0.^es,  have  been  based  upon  the  wants  of  the  Id.  33G;  Ortmaa  v.  Dixon,  13  Id.  33;  McDon- 

2G3 


1410 


ACQUISITION  OF  PROPERTY. 


[Dlv.  II,  Part  IV, 


aid  V.  BPdr  li'tmr  etc  Co.,  Id.  220;  Kibl  v. 
Laird,  15  Id.  IGl;  Phxnix  W.  Co.  v.  Fiplcher, 
*li  I.l.  481;  Wixoii  V.  llenr  River  etc.  Co.,  24 
IJ.  3GT;  Hill  v.  Smth,  27  Id.  480;  Nevada  efc. 
Co.  V.  Kild,  37  Id.  2S2,  312;  Parks  Canal  etc. 
(Jo.  V.  Ifoii>i  57  Id.  44;  Farleii  v.  Sprlmj  V(d- 
ky  W.  Co.,  53  Id.  142;  Uliies  v.  Johnson.  01 
Id.  259;  Lohdtll  v.  Simp.ion,  2  Nev,  274;  0/^/ti> 
•Siiwr  J/.  Co.  V.  Carpenter,  4  Id.  534;  Barnes 
V.  Sahroii,  10  Id.  217;  .S'Cra/^  v.  Brown,  10  Id. 
317;  SchUlinf]  v.  Rovilnyer,  4  Col.  100;  (.'m«e 
V.  iri».s"r,  2  Utah,  24S;  Atchison  v.  Peterson,  1 
Mon.  T.  501. 

Nor  has  the  doctrine  been  confined  to  min- 
in"  operations;  appropriation  of  water  has 
been  allowed  for  purpor-es  of  manufactories  or 
iniils:  McDonald  v.  Bear  Iliver  etc.  Co.,  13 
Oal.  220;  Ortman  v.  Dixon,  Id.  33;  note  to  43 
Ain.  Dec.  279,  2S0;  for  irrigation:  Lvbdeil  v. 
Sinpsnn,  2  Nev.  274;  Barnes  v.  ,'^abron,  10  Id. 
217;  and  doubtless  can  be  made  for  any  imr- 
|iose,  ]irovided  it  be  "useful  or  beneficial:" 
8ec.  1411. 

This  [jeculiar  right  to  the  use  of  water  on  the 
public  domain,  in  connection  with  mining  in- 
♦lustries,  recognized  by  local  customs,  enforced 
by  courts,  and  protectcnl  by  state  statutes,  was 
at  length  coa-lrmcd  by  act  of  congress  ijassed 
July  2o,  ISGG:  U.  S.  li.  S.,  sec.  233'J;  and  judi- 
cially established  bj'  the  supreme  court  of  the 
United  States:  Basey  v.  Gadar/her,  20  'Wall. 
670;  Atclti^on  v.  Peterson,  Id.  507;  Broder  v. 
J\aiom<i  IV.  Co.,  101  U.  S.  274.  This  act  of 
congress  created  no  rights,  it  simply  recog- 
nized pre-existing  ones:  Broder  v.  Natoma  IK. 
t'c,  supra.  "It  confirmed  to  the  owners  of 
■water  rigiits  on  the  j  ublic  lands  of  the  United 
States  the  same  riglita  which  they  held  under 
the  local  customs,  laws,  and  decisions  of  the 
courts  prior  to  its  enactment;  *  *  *  [it] 
did  not  introduce,  and  was  not  intended  to  in- 
troduce, any  new  system,  or  to  evince  any  new 
or  ditf'crent  policy  upon  the  part  of  the  general 
goverunient;  it  recognized,  sanctioned,  protect- 
ed, and  confirmed  the  S3'3tem  already  estab- 
lished by  the  customs,  l..ws,  and  decisions  of 
courts,  and  provided  for  its  contiuuance:" 
Jones  V.  Adams,  G  West  Coast  Rep.  140,  145 
(Nev.),  in  which  many  decisions  construing  the 
act  in  question  are  considered. 

Riglit  of  appropriator  in  the  water  gen- 
erally.—  Whether  the  appropriator's  right  to 
the  water  appropriated  is,  after  its  passage 
into  his  ditches,  a  property  or  merely  an  exclu- 
sive right  of  use  is  a  matter  not  yet  detennined. 
It  has  been  settled,  however,  by  numerous 
decisions  that  an  appropriator  has  no  property 
in  tlic  water  of  a  natural  stream  flowing  in  its 
natural  channel,  before  it  reaches  the  "head" 
or  commencement  of  the  ditch  where  his  diver- 
Eion  begins,  and  no  actions  based  upon  such  a 
property  can  be  maintained:  Loiver  Kinqs 
Jlver  W.  Co  v.  Kincjs  Bivr  Co.,  GO  Cal.  408: 
Paris  Canal  d:  M.  Co.  v.  Hoijl,  57  Id.  44; 
Liis  Antje'es  v.  Baldwin,  53  Id.  409;  Xerada 
County' Co.  v.  Kidd,  37  Id.  282;  McDonald  v. 
Aski-w.  29  Id.  200;  Kidd  v.  Laird,  15  Id.  l(Jl; 
Orttnan  v.  Dixon,  13  Id.  33.  Whether,  after 
appropriation,  the  water  becomes  property  is 
an  open  question:  See  Professor  Pomeroy's  dis- 
cussion of  the  matter  in  2  West  Coast  Rep.  1 
et  sc(|. 

Wiiile  a  property  right  in  the  water  flowing 
iu  the  natural  stream  above  the  plaintiff's  place 
•of  diversion  does  not  exist,  yet  the  prior  ap- 


propriator has  aright  to  demand  that  the  water 
shall  continue  to  llow  in  its  usur.l  manner  down 
to  the  head  of  his  ditch,  at  least  to  the  extent 
of  his  appropriation.  "Granting  that  the 
plaintiff  Joea  not  own  the  ror/iu-i  of  the  water 
until  it  shall  enter  his  ditch,  yet  the  right 
to  nave  it  flow  into  the  ditch  appertains 
t )  the  ditch:  Lower  Kings  Uiver  Canal  Co.  v. 
Kiiifjs  River  Co.,  CO  Cal.  408;  so  also  Parica 
Canal  Co.  v.  Ifoyt,  57  Id.  44;  Reynolds  v.  //os- 
mer,  51  Id.  205;  McDonahl  v.  Askeii\  29  Id. 
200;  Phoenix  W.  Co.  v.  Fl."tch<  r,  23  Id.  481; 
Natoma  \F.  ct-  M.  Co.  v.  McCoy,  Id.  400;  Kidd 
V.  Laird,  15  Id.  201;  Barnes  v.  Sabron,  10 
Nev.  217. 

Therefore,  wdiilo  the  prior  appropriator  ia 
not  regarded  as  having  any  "property  "  in  the 
water  flowing  in  its  natural  course  above  hia 
ditches,  and  can  maintain  no  action  based  upon 
such  a  theory,  yet  for  an  interference  with  such 
flow,  resulting  in  injury  to  him,  he  has  his 
remedy.  It  is  iu  the  nature  of  an  action  for 
the  abatement  of  a  nuisance:  Parle  v.  Kilham, 
8  Cal.  77;  and  an  injunction  to  prevent  further 
diversion  may  be  resorted  to:  White  v.  Todd 
V.  W.  Co.,  Id.  443;  Coker  v.  Simpson,  7  Id. 
340;  Ihistan  v.  Leach,  53  Id.  202;  Harris  v. 
Shouiz.  1  Mon.  T.  212;  Fabian  v.  Collins,  3  Id. 
215;  Tiiolujime  Water  Co.  v.  Chapman,  8  Cal. 
302;  Bens'ey  y.  Mountain  Lake  W.  Co.,  13  Id. 
30G;  Siein  Canal  Co.  v.  Kern  Lland  Lriyat- 
in;;  Co.,  53  Id.  5G3;  Himes  v.  Johnson,  Gl  Id. 
25;);  Douijherty  v.  Hagqin,  Id.  305;  Wilcox  v. 
llausch,  04  Id.  4G1;  Lorenz  v.  Jacobs,  2  West 
Coast  Rep.  722;  and  a  preliminai-y  injunction  to 
jircvent  diversion  pendente  lite  may  be  granted: 
Johnson  v.  Sitpfrior  Court,  3  Id.  G77;  and  dam- 
ages for  the  loss  sustained  by  ))ast  diversions 
may  be  recovered:  Coker  v.  Simpson,  7  Cal.  340; 
Parke  V.  KiUiain,  8  Id.  77;  ('ran/  v.  Camp/xdl, 
24  Id.  G34;  McDonald  v.  Bear  RivrCo.,  15  Id. 
145;  Natoma  W.Co.y.  iI/cC3//,23Id.490:  Union 
W.  Co.  V.  Cr.n-y,  25  Id.  504;  llimes  v.  Johnson, 
Gl  Id.  250;  Dowjhcriy  v.  J/aijf/in,  Id.  305.  Cut 
pending  an  appeal,  the  supreme  court  has  no 
power  to  stay  the  operation  of  an  injunction  re- 
straining the  appellant  from  diverting  water 
from  a  stream :  Swt/i  v.  Sheppard,  1  West  Coast 
Rep.  133. 

Tlie  proceedings  may  be  instituted  by  one 
tenant  in  common  without  making  his  co-ten- 
antaparty:  J  Fanes  \.  John  son, QX  Cal.  250;  Lijile 
Creek  IF.  Co.  v.  Perdeiv,  3  West  Coast  Rep.  410. 
For  the  essential  averments  iu  an  action  l.y  a 
prior  appropriation,  see  Lorenz  'v.  Jacobs,  2 
West  Coast  Rep.  722. 

Appropriator's  right  in  ths  -water  after 
its  diverciou:  See  note  to  sec.  1412. 

Appropriator's  rights  a3  against  ths  gov- 
ernment.— Tlie  appropriation  of  water  on  the 
public  domain,  and  the  rights  thercbj'  ac- 
quired, are  good  as  against  the  government  and 
any  subsequent  grantee  thereof:  Farley  v.  S. 
r.  M.  tt-  /.  Co.,  58  Cal.  142;  Broder  v.  Natoma 
W.  Co.,  50  Id.  G21;  Ostjood  v.  El  Doralo 
Water  Co.,  56  Id.  571;  Lyfle  Creek  W.  Co.  v. 
Perdew,  1  West  Coast  Rep.  806.  And  see  the 
discussion  of  t'nis  jiarticular  brancli  of  the  sub- 
ject, and  of  the  questions  suggested  by  it,  in 
(Jould  on  Water  Rights,  sec.  240. 

Rights  of  appropriators  as  bstween  them- 
selvsa:  See  sec.  1414. 

Duty  to  supply  w^ater  to  all  inhabitants 
of  county:  See  "  Water  and  Canal  Corpora- 
tions," sees.  548  et  saq.,  and  the  statutes  in 


204 


Title  VIII. ] 


WATER  RKiHTS. 


§U11 


cote  to  sec.  £52.  Tl^at  v/atcr  and  canal  com- 
panies have  imposed  upon  tliem  a  public  duty 
to  supply  all  M"ho  are  ready  to  pay  for  the 
water,  s:;o  Price  v.  lllverskle  L.  <L\  I.  Co.,  50 
C;il.  4.'.1.  The  concurring  opinion  of  Jud;;e 
Myrick  gives  a  coniprehensive  stateii'.ent  of  the 
various  classes  of  laud-owntis  entitle. 1  lo  avail 
thni  clvc3  of  the  provisions  ( f  Ecction  552. 

Duty  to  licGp  ditches  in  repair,  eto The 

codo,  £;cction  551,  imposes  upon  canal  and  ditch 
corpoi-.-itionsthe  duty  to  build  and  keep  in  repair 
8uch  ljrid:;c3  as  the  board  of  supervisors  of  the 
county  may  require.  In  addition  to  this  statu- 
tory iluty,  there  is  demanded  of  all  appropria- 
tors  of  water  care  in  the  management  of  tlieir 
ditches,  tliat  injury  may  not  result  to  others. 
Wl)en  water  is  conducted  through  an  artilicial 
Wiitercourse  over  another's  land,  the  ditch- 
owner  must  keep  it  in  repair  so  as  not  to  injure 
that  other.  Ju;lge  Sanderson  states,  in  Rlcliard- 
eon  v.  Khr,  34  Cal.  03,  74,  in  speaking  of  injury 
occasioned  by  the  overflow  of  water  in  a  ravine 
which  had  been  adopted  as  part  of  the  de- 
fendant's line  of  ditches:  "He  is  bound  to  so 
use  hia  diteh  as  not  to  injure  the  plaintiff's 
land,  irrespective  of  the  question  as  to  \\  hich 
has  the  older  right  or  title.  He  is  bound 
to  keep  it  in  good  repair,  so  that  water 
will  not  overflow  or  break  through  its  banks 
and  destroy  or  damage  the  lands  of  other  par- 
ties, and  if  through  any  fault  or  neglect  of  his 
in  not  properly  managing  and  keeping  it  in  re- 
pair the  water  does  flow  or  break  through  the 
banks  of  tlie  ditch  and  injure  the  lands  of 
others,  either  by  washing  away  the  soil  or  by 
covering  the  soil  with  sand,  the  law  holds  him 
responsible."  This  doctrine  is  atlirmed  in 
Richard^^on  v.  Kier,  sujrra;  Wolf  v.  St.  Louis 
Water  Co.,  10  Id.  541;  Uobinxon  v.  Black  Dia- 
mond Coal  Co.,  CO  Id.  400;  Durst  v.  Ihish,  14 
Id.  81 ;  Camjibdl  v.  Bear  River  Co.,  35  Id.  079; 
Uafhciv.'i  V.  Kiu'^ell,  41  Id.  512. 

The  case  of  Richardson  v.  Kier,  34  Cal.  03, 
involving  the  responsibility  of  a  ditch-owner 
in  regard  to  a  ravine  used  as  a  part  of  the  ditch, 
qualities  the  rule  above  stated  to  this  extent: 
The  ditch-owner  is  to  be  understood  as  using 
the  ravine  only  to  the  capacity  of  his  ditch,  he 
is  not  liable  for  an  overflow,  so  L.r  as  it  may 
have  resulted  from  waters  not  discharged  into 
the  ravine  by  himself. 

The  owner  of  a  ditch  or  flume,  who  erects  a 
dam  above  mining  claims,  which  are  ai'terwai'ds 
damaged  by  the  breaking  of  the  dam,  is  not 
liable  for  t'.ic  injury  if  the  dam  was  constructed 
witli  reasf)nabl.;  skill,  and  no  negligence  is  shown 
in  its  repair  or  management:  Dverett  v.  Ili/- 
dranlic  Co.,  23  Cal.  225;  Tuolumne  Water  Co. 
V.  ColumhiaHc.  Water  Co.,  10  Id.  194;  Frder 
V.  Sears  Union  Water  Co.,  12  Id.  555;  Todd  v. 


Cochell,  17  III.  97;  nor  if  it  is  wholly  in  charge 
of  a  contractor:  Bomce  I  v.  Laird,  8  Id.  409; 
nor  it  i\  ditch  is  injured  without  iault  of  the 
owner,  as  by  burrowing  anim;. Is  or  falling  trees, 
is  he  liable  to  sul)SCi|Uent  appiopriaiors  or  loca- 
tors of  adjc^ining  -claims  damagctl  by  the  break- 
ing of  tlie  ditch:  Teniiey  v.  Miners'  Ditch  Co., 
7  Id.  335. 

If  an  artificial  ditcii  is  constructed  across  a 
natural  watercourse,  which  it  dams  up,  and 
which  in  a  time  of  flood  renders  it  necessary 
to  cut  the  embankment  of  the  ditch  to  preserve 
it  from  injur}',  the  owner  of  tlie  ditch  va  guilty 
of  negligence  if  he  cuts  it  where  tiiere  is  no 
natural  watercourse,  thereljy  turning  the  water 
upon  cultivated  lands;  such  an  injury,  he  can- 
not claim,  resulted  from  the  act  of  (tod:  Tur- 
ner V.  Tuolumne  Water  Co.,  '27>  Cal.  307. 

Proprietorahij)  in  difrh,  and  inability  of  legis- 
lature to  allov/  a  third  person  to  use  or  enlarge 
the  same  without  compensation:  Trippe  v. 
Overacl.er,  1  West  Coast  Rep.  352. 

Riparian  rlglita  aUscted  by  appropria- 
tion: See  sec.  1422. 

Transfer  of  right  of  appropriation. — 
Right  to  water  acquired  by  appropriation  may 
be  transferred  like  other  property:  McDonald 
v.  Bear  River  Co.,  13  Cal.  220.  A  person  who 
sells  his  interest  in  the  water  of  a  stream  to  be 
used  in  a  ditch  above  him  does  not  lose  hia 
prior  right  over  a  subsequent  appropriator  be- 
low to  any  water  remaining:  McDonald  v. 
Askew,  29  Id.  200.  Covenants  in  relation  to  the 
use  of  water,  when  run  with  the  land:  Weill  v. 
Baldwin,  1  West  Coast  Rep.  551. 

A  ditch,  when  completed,  is  not  a  mere  ease- 
ment or  appurtenance:  Reed  v.  Sji.'cer,  27  Cal. 
57;  Clarl:  v.  Willett,  35  Id.  534;  //art  v.  Plum, 
14  Id.  148;  Merrltt  v.  Jud  I,  Id.  59.  A  right  to 
appropriated  water  which  a  trespasser  on  land 
has  acquired  does  not  pass  to  a  purcliascr  from 
the  owner,  as  an  appurteurmt  to  the  land:  Smit/i 
V.  Lo'jan,  1  West  Coast  Rep.  331.  One  ditch 
cannot  be  appurtenant  to  anotiier  ditcii  and 
pass  by  grant  as  an  incident,  although  it  may 
pass  as  part  and  parcel  of  the  subject-matter: 
Doiniell  v.  llumphreys,  1  Mon.  T.  518;  Quirk 
v.  Falk,  47  Cal.  453;  see  l/iUKjariaa  /[ill  M. 
Co.  V.  Moses,  58  Id.  108.  It  can  be  sold  by 
deed  only:  Bradley  v.  IIarhnes!<.  23  Id.  09; 
Smith  v.  Cl/ara,  4:J  Iil.  371 ;  Uill  v.  Neumian, 
5  LI.  445;  Bark'ey  v.  Tieleke,  2  Jlon.  T.  59; 
Fabian  v.  Collins,  3  Id.  215.  JNIiaing  claims 
an  I  ditches  may  be  mortgaged:  IJnlm  W.  Co. 
V.  Marphr/s  F.  F.  Co.,  22  Cal.  023:  and  new 
ditcher  take  the  place  of  the  old  ones  when  in- 
tended to  employ  to  better  adva:itage  the 
mort'jaged  water  privileges:  J/uwj  iriuit  lldl 
G.  M.  Co.  V.  J/oxf.s,  53  Id.  1G3. 

Posting  notice:  Sees.  1415  et  seq. 


1411.    Appropriation  viiist  be  for  a  uspful  purpose. 

Sec.  1411.  The  appropriation  must  be  for  some  useful  or  beneficial  pui'pose, 
and  ^vIien  the  appropriator  or  his  successor  iu  interest  ceases  to  use  it  for  such 
a  purpose  the  right  ceases. 


Ar>2:3ropria;ion  must  be  for  a  useful  pur- 

po3D — The  doctrine  of  the  above  section  in 
tluj  particular  is  thus  formulated  by  Professor 
Pomornj',  1  West  Coast  Rep.  040:  "I;i  order  to 
make  a  v.  lid  appropriation  of  waters  upon  tlie 
pubiij  domain,  and  to  obtain  an  exclusive  right 
to  th;  water  thei'eby,  the  fundamental  doctrine 


made  with  a  bona  fide  present  tlesign  or  inten- 
tion of  appljdng  tlij  water  to  soma  immediate, 
useful,  or  beneficial  piirpose,  or  in  present  bma 
Jide  contemplation  of  a  future  application  of  it 
to  such  a  purpose  by  t!ie  p iriies  tliui  appro- 
pri.iting  or  claiming.  The  purpose  may  be 
minin ;,    milling,     manufacturin  ?,    in-igating, 


is  well  settled  that  the  appropriation  must  be    agricultural,  horticultural,  domestic,  or  other- 

205 


§  1412 


ACQUISITION  OF  PROPERTY. 


[Div.  II,  Part  IV, 


wise;  bnt  there  must  be  some  such  actual,  posi- 
tive, beueticial  purpose  existing  at  the  time,  or 
contein;ilateil  iii  tlie  future,  as  the  object  for 
which  the  water  is  to  be  utilized;  otherwise  no 
prior  and  exclusive  right  to  the  water  can  be 
accjuireil,  no  matter  liow  elaborate  and  complete 
may  be  the  physical  structures  by  which  the 
attempted  api)ropriation  is  effected:  Weanci'  v. 
Eurfka  Lake  Co.,  15  Cal.  271;  Maeris  v.  Bkk- 
ndl,  7  Id.  201;  Davu  v.  Oale,  32  Id.  2G;  J/c- 
Kivveyw  Sinitli,  21  Iil.  374;  Ortmaa  v.  Dixon, 
13  Id'.  33;  McDonald  v.  Bear  River  Co.,  Id. 
220;  Mr  Donald  v.  A^ikew,  29  Id.  230;  Gibson 
V.  Puchti,  33  Id.  310;  Dick  v.  Caldwell,  U 
Nev.  107;  Dick  v.  Bird,  Id.  IGI;  Gramt-r 
V.  Randall,  2  Utah,  248;  Munro  v.  Ivie, 
Id.  535;  Woolrnan  v.  Garringer,  1  Mon.  T. 
535.  Under  this  rule,  an  appropriation  for 
mere  purposes  of  speculation  is  nugatory: 
Weaver  v.  Eureka  Lake  Co.,  supra.  And  a  cli- 
version  of  water  solely  for  the  object  of  drain- 
age, without  any  bona  fide  intention  of  its  pres- 
ent or  future  iise  for  other  beneficial  purposes, 
does  not  constitutea  valid  appropriation:  Maeris 
V.  Bickni'H,  supra;  McK'niney  v.  Smith,  supra." 
So  also  S'icber  v.  Frink,  2  West  Coast  Hep.  208. 

Appropriation  must  be  evidenced  by 
pbysi cal  acts:  See  sec.  1416. 

Changing  use:  See  note  to  next  section. 

Abandonment— The  prior  right  to  the  use 
of  water  may  be  lost  by  abandonment:  Professor 
Pomeroy's  article,  2  West  Coast  Rep.  21)8; 
Davis  V.  Ga!e,  32  Cal.  26;  Dodge  v.  Marden,  7 


Or.  456.  But  it  is  not  an  abandonment  to  min» 
gle  the  waters  from  the  ditch  with  a  natural 
stream  so  that  they  ujay  Ijc  rLtahen  at  a  point 
lower  down  the  stream:  Untie  Cniiul  Co.  v. 
Vaughn,  11  Cal.  143;  sec.  1413.  But  one  who 
has  discharged  water  from  a  foreign  source  into 
a  stream  cannot  take  out  more  than  he  put  in: 
Wilcox  V.  J/ausch,  64  Cal.  401.  Nor  is  it  an 
abandonment  of  a  former  chum  for  an  apnro- 
pri.itor  who,  while  prosecuting  hij  woik  with 
diligence  under  the  first  notice,  [losts  a  sec- 
ond notice:  Osgood  v.  El  Dorado  Co.,  56  Id. 
571,  579.  The  fact  that  numerous  persons  use 
an  irrigating  ditch  constructed,  repaired,  and 
controlled  at  private  expen-'e,  and  that  their 
respective  rights  are  not  cL'arly  defined,  does 
not  show  a  dedication  to  the  ])ul)lic:  Cede 
V.  Sa/ford,  54  Id.  24.  Abandonment  from 
allowing  another  to  use  and  divert  I'.io  water 
for  many  years:  Smith  v.  Logan,  1  West  Coast 
Rep.  391  (Nev.);  Dorr  v.  Hammond,  Id.  357 
(Col.).  As  to  the  effect  of  nonuser,  see  Sieber  v. 
Frink,  2  Id.  98.  As  to  the  requisites  of  an  ad- 
verse user  necessary  to  ripon  iuto  a  right,  see 
same  cases;  Anaheim,  W.  Co.  v.  Semi-Tropic 
W.  Co.,  Gl  Cal.  185;  Santa  Ana  I.  Co.  v.  Semi^ 
Tropic  W.  Co.,  1  West  Coast  Rep.  487;  Feliz 
v.  Los  A  ngeles,  58  Cal.  73. 

For  abandonment  arising  from  failure  to 
prosecute  the  construction  of  the  ditches,  etc., 
to  completion,  see  note  to  section  14 1 G. 

Amount  of  property  appropriated:  See 
sec.  1415,  and  note. 


1412.   Point  of  diversion  marj  be  changed. 

Sec.  1412.  The  person  entitled  to  the  use  may  change  the  place  of  diversion, 
if  others  are  not  injured  by  such  change,  and  may  extend  the  ditch,  flume,  pipe, 
or  aqueduct  by  which  the  diversion  is  made  to  places  beyond  that  where  the 
first  use  was  made. 


Cliansing  use  and  place  of   diversion. 

"The  general  doctrine  is  settled  by  tlie  unani- 
mous coiisent  of  the  authorities, "  says  Professor 
Pomeroy,  2  West  Coast  Rep.  5,  "that  the 
prior  appropriator  is  entitled  to  the  exclusive 
use  of  the  water,  up  to  the  amount  embraced 
in  his  apiiropriation,  either  for  the  original  [lur- 
pose,  or  for  any  other  or  different  purpose,  pro- 
vided the  amount  is  not  thereby  increased,  with- 
out dimiimUon  or  material  alteration  in  quan- 
tity or  quality;  and  his  use  will,  to  that  extent 
and  for  such  purposes,  be  protected  against  all 
sabsequent  appropriators  or  claimants  using  or 
interfering  with  the  water,  both  alove  and 
below,  on  the  same  stream;  and  to  this  end  he 
may  obtain  all  proper  remedies  legal  and  equi- 
table: nines  V.  Johnson,  ol  Cal.  230;  Stein  Canal 
Co.  V.  Kirn  I.iland  I.  C.  Co.,  53  Id.  533;  Rey- 
nolds  V.  fJosmer,  51  Id.  205;  Gre'/orrj  v.  Nel.on, 
41  Id.  278;  C:ark  v.  Willelt,  30  Id.  524;  Dnvls 
V.  Gale,  32  Id.  2j;  McDonald  v.  A-nkew,  29  Id. 
*200;  Ulll  V.  Smith,  27  Id.  47G;  32  Id.  IGG; 
Rnplnj  V.  Welch,  23  M.  453;  Pho&nix  W.  Co.  v. 
Fletcher,  Id.  432;  Natoma  W.  Co.  v.  McC  >ii. 
Id.  490;  Bntte  Co.  v.  Morgan,  19  Id.  G99;  Klil  I 
V.  Laird,  15  Id.  IGl;  Kimball  v.  Gearhard,  12 
Id.  27;  Ortmin  v.  Dixon,  13  Id.  33;  B-ar 
River  Co.  v.  N.  Y.  M.  Co.,  8  Id.  327;  Ophlr 
Silver  M.  Co.  v.  Carpenter,  4  Nev.  531;  Burner 
V.  Sabron,  10  Id.  217;  S'rail  v.  Brown,  10  Id. 
317;  ApyleJoi.  V.  Paterson,  20  Wall.  515." 

If  t!iD  original  appropriation  was  for  a  saw- 
mill, t!io  water  m  .y  b3  u:3jd  for  a  g:-ist-:nill 
subsequenlly  erected:  McDonald  v.  Lear  River 


Co. ,  13  Cal.  220.  If  the  water  was  appropriated 
for  a  mining  claim,  which  is  worked  out  and 
abandoned,  the  owner  may  extend  his  ditcli  and 
use  the  same  quantity  of  water  at  other  points 
or  for  a  difierent  purpose:  Davis  v.  Gale,  32  Id. 
2G;  Woolrnan  v.  Garringer,  1  Mon.  T.  535;  or 
ceasing  to  use  it  hemayhold  it  for  sale:  Fabian  v. 
Collin-',  2  Id.  510.  The  miner  may  extend  his 
flume  on  his  own  claim  for  the  express  purpose 
of  preventing  a  subsequent  appropriator  below 
from  constructing  a  ditch  on  that  c'aim,  even 
thoug'.i  the  extension  may  not  bo  for  a  useful  pur- 
pose: C;7vv«  V. /'ne^a-s,  42  Cal.  'ii30;  McKinney  v. 
Smith,  21  Id.  374.  The  mere  change  in  the  use 
of  water  from  one  mining  locality  to  another  does 
not  forfeit  the  right:  Maerisv.  /HcknelL'ild.  2G1. 

Increasing  the  use. — Where  a  prior  appro- 
priator subsequently  enlarges  his  ditclies,  and 
diverts  a  larger  amount  of  water  than  thatorigi- 
nally  appropriated,  his  right  to  tlie  increased 
flow  is  taken  subject  to  the  rights  of  other  ap- 
propriators  which  attached  prior  tf>  the  enlarge- 
ment: Slehi'r  v.  Frlnk,  2  Wc^t  Coast  Rep.  93. 

Cliangiag  place  of  diveral^n. — A  person 
enticled  to  divert  a  given  quantity  of  water 
from  a  stream  may  take  it  at  any  point  on  the 
stream,  and  may  change  the  point  of  di\'ersion 
at  pleasure,  if  the  rights  of  others  be  not 
a'foeted  injuriously:  Kidlv,  L  lird.  15Cj1.  101; 
Bntte  T.  M.  Co.  v.  Morgan,  19  Id.  009;  Sibber 
V.  Frl'ik.  2  West  Coast  Rep.  93.  Thi!  riglit  to 
take  water  having  been  once aofjuired,  t!:e  :iian- 
ner  an  1  jilace  of  taking  it  caa;iot  be  (piestioued 
by  tliOoC  not  injured  thereby:  Id. 


2ca 


Title  VIII.] 


WATER  niGHTS. 


1413,  1414 


1413.  WuLir  may  he  /timed  in'o  naiiiral  channrlf!. 

Sec.  141o.     The  water  appropriate*!  may  be  turned  into  the  cliannel  of  another 

stream  and  mingled  with  its  water,  and  then  reclaimed;  hut  in  reclaiming  it, 

the  water  already  appropriated  hy  another  must  not  be  diminished. 

Usin^  r.atvrzA  stream  as  a  ditch — Tlie  where  one  using  the  bed  of  a  natural  water- 
principle  CiUuicliiLcd  by  t!iis  section  i.s  applied  course  v.'as  held  not  liable  for  the  overflow  of 
in  Butte  Co.  v.  W-.iKjhii,  II  Cal.  143.  i^na  Ji'lrli-  tlie  Itaiiks  of  the  stream,  it  not  being  shown 
ardnon  v.  Kkr,  '.A  Id.  G.'];  S.  C,  37  Id.  203,  that  Lis  waters  occasioac J  the  same. 

1414.  Flrd  ill  fi.me,/lrst  in  rigid. 

Skc.  1-iM.  As  between  appropriators,  the  one  fir-st  in  time  is  tlie  first  in 
right. 

"When  rjfjhtbos'^s:  See  sec.  1418. 

Iil-2li:;3  of  prior  app.opriato/. — A  general 
Btatement  of  tb;;  rijlit  of  a  prior  appropri.-itor 

will  be  found  ia  the  note  to  section  1412.     The  4  West  Coast  Hep.  530  (Xev.);  ami  see  cases  m 

waters  of  a  stream  which  are  not  embraced  in  this  note,  s/(//nr.     The  first  in  time  is  entitled  to 

the  a:i!Ount  of  cu  appropiiator's  claiai  may  l>e  use  and  enjoy  the  water  to  the  full  extent  of  hia 

appropriated  by  others,  either  above  <>r  below;  original  appropriation,  even  when  this  includes 

and  among  the  successive  appropriators  on  a  all  the  water  of  the  stream,  to  iiave  its  (jnality 

Btrcam,  each  ia  in  the  position  of  a  prior  one  to  unim;)aired,  so  as  not  to  def>,at  the  purpose  of 

all  who  arc  subsequent  to  himself:  Stein  Caial  sucli  appropriation,  and  to  remove  obstructions 

Co.  V.  Kern  Idaiid  I.  Co.,  53  Cal.  503;    Dro  ler  from  the  natural  channel:  Same  citations;  Shna 


eiioufth,  7  Id.  .'{24;  Dalton  v.  Bowl-er,  S  Id.  190; 
SduUiiiij  v.  RoniiiKj'r,  4  CjI.  103;  7'ho?-j)  v. 
Woo^mnu,  1  Mon.  T.  1G8;  'Slmp>iO)i  v.  ]ViUiam.% 


V.  Ndton  a  \V.  Co.,  5'J  Id.  G21 ;  Smith  v.  (/llara, 
43  Id.  371;  Ilio'ji"^  v.  Barker,  42  Id.  233;  .Vc- 
vada  ]V.  Co.  v.  Powell,  34  Id.  109;  ])av'»i  v. 
Gale,  32  Id.  2G;  /Idl  v.  Smith,  27  Id.  470; 
American  Co.  v.  Bradford,  Id.  301;  McKiiiney 
V.  Smith,  21  Id.  374;  Ortmnn  v.  Dixon,  13  Id. 
33;  Uidte  County  Co.  v.  Vaughn,  11  Id.  143; 
Kdli/  v.  Natom'i  W.  Co.,  G  Id'.  105;  Lohdell  v. 
Simjmon,  2  Nev.  274;  Proctor  v.  Jenninjs,  G  Id. 
83;  Barnes  v.  Sahron,  10  Id.  217.  The  sur|)lu3 
water  of  a  stream,  after  a  prior  appropriation, 
may  be  the  subject  of  a  uev/  .ippropriation,  and 


V.  Smith,  7  Cal.  143;  Oale  v.  Tuo'innue  \V.  Co., 
14  Id.  25;  Nevada  Water  Co.  v.  Pow-ll,  34  Id. 
103;  Baruea  v.  Sahron,  10  Nev.  217. 

He  may  apply  it  to  any  bcuolicial  use  with- 
out any  obligation  to  return  it  to  tlie  stream 
fro.n  which  he  took  it,  or  to  preserve  its  parity 
or  (piantity:  Union  Mill  Co.  v.  Ferri.f,  2  Saw. 
184;  J/ill  V.  Smith,  32  Cal.  IGO;  iJear  /?.  Co. 
V.  York  M.  Co.,  8  Id.  327;  Mokdumne UiU  Co. 
V.  Woodbury.  10  Id.  1S5. 

For  divertinj  the  -water,  a  -^nor  appropri- 
ator  has  his  remedy  to  preveuu  future  diiturb- 


the  second  appropriator  will  have  a  paramount  ance,  and  may  recover  for  past  los'ics:  See  the 

right  to  use  all  the  waters  which  are  not  re-  note  to  sec.  1410,  right  of  appropriator  in  the 

quired  for  the  spcciid  purposes  of  the  prior  ap-  water,  generally;  see  also  in  Frofes^orPomeroy'a 

propriator:    McKinney  v.  Smith,  21  Cal.  374;  article.  2  West  Coast  Rep.  219,  207. 

Brou-n    v.    MulUn,  2  West  Coast.    Rep.   133.  Use  of  water,  nature  of :  See  sec.  H 11,  and 


And  this  surplus  may  arise  either  from  an  aj 
propriation  of  a  part  of  the  water  steadily  or 
an  intermittent  appropriation  of  the  whole  or 
part  of  the  water  at  stated  interv^als.  The  rule 
as  to  the  rights  of  an  appropriator  of  the  sur- 
plus are  applical  le  alilce  to  either  case:  Smith 


uotn. 

Chanseof  use:  See  sec.  1412,  and  note. 

ILiglits  of  appropriators  as  agaiiiut  the 
government  and  its  grantees:  See  sec.  1410, 
and  note. 

E::ii2nt  of  use — The  amount  of  water  which 


V.  Wllara,  43  Id.  371;  Barnes  v.  Sahron,   10    an  appropriator  is  entitled  to  use  — tha^  is,  the 


Nev.  217. 

A  person  appropriating  a  water  right  on  a 
stream  already  appropriatsjd  acquires  a  right  to 
the  surplus  which  he  appropriates;  Cases  i.ifra 
in  tiiis  paragrapli;  Brown  v.  Mnllin,  2  West 
Coast  Rep.  13. J.  Tli  )se  who  hold  prior  rights, 
abo\e  or  boliw,  can  in  no  way  change  or  extend 
the  use  of  their  v\atjr  to  his  prejudice,  bat  are 
limited  to  tiie  rights  enjoyed  by  them  when  he 
secured  his  own:  Proctor  v.  Jenninq^i,  G  Nev. 
83;  L',,r/tes  v.  Sahron,  10  Id.  217;  Lohdell  v. 
Simimcn,  2  Id.  274. 

It  ia  a  geaeral  rub.!,  as  between  persons  who 
claim  t'.ie  v/atcr  of  a  stream  flowing  throug'i 
the  public  land  merely  by  the  prior  ap[)ropria- 
tioa  of  th^'  v/ater  itself,  or  by  a  prior  location 
upon  the  iaml,  that  he  has  the  best  right  who 
is  first  in  tiaie:  Bntte  Canal  Co.  v.  Vau;fhii,  11 
Cal.  143;  Orlmaav.  Dixon,  13  Id.  33;  SuUimn 
V.  Beardsiey,  55  1 1.  003;  Atchiion  v.  Peleroit, 
20  \vall.  5l»7;  I  iMou.  T.  531;  Ba>iey  v.  Gaia- 
(jher.  Id.  070;  Stafford  v.  llornbiicUe,  3  II.  43'); 
Lol)dell  V.  SimjMon,  2  Nev.  274;  Ophir  ■'^ilivr 
M.  Co.  V.  Carpenter,  4  Id.  531;  James  v.  GooJ- 


exteut  of  the  right  <irigiu;dly  aeriuirc'd  l*y  lain 
— is  a  question  of  fact  for  the  jury:  Xer  :du  W. 
Co.  V.  Powell,  3i  Cal.  109.  the  i-iglit  of  the 
prior  appropriator  in  tliis  respect  i3  limi.,ed  to 
the  amount  or  extent  of  his  actual  appropii- 
ation,  as  against  subsequent  a" ipropriatois  and 
c'.aiinauts,  and  lie  cannot,  after  t!ieir  subse- 
quent riglits  have  attachdl,  e'lange  the  place 
or  diversion,  or  his  use,  or  the  amo.int  of  his 
appropriation,  so  as  to  prejudice  them:  Id.; 
Ortman  v.  Dixon,  13  Id.  3:},  an  1  case.a  herein,  .su- 
pra; Sieber  v.  Frinlc,  2  \V'cst  Coajt  Rc]>.  03. 
The  extent  of  the  appropriation,  and  the 
amount  of  water  thereby  t.ikcn,  may  be  deter- 
mi.ieil  by  the  special  purpose  for  which  the 
appropriation  was  midj;  and  in  such  a  case 
the  appropriator  is  catiole  1  to  so  mueli  water 
(inl/  a3  ii  necessary  for  that  purp.)sc:  Xeoada 
W.  Co.  V.  Powell,  supra;  an  I  sje  Simpson  v. 
Willla  n.%  3  West  Coast  tlep.  :)M)  { Nev. ).  Yet  the 
rigiit  of  the  first  appropri  it  ir  is  noL  deteimined 
ijy  .1  c  )mparisoa  of  the  v.die  of  tlie  water  to  him 
aa  1  to  s  >i)r,equenb  loeat  tr.;:  H'ennr  v.  L'nreka 
Like  Co.,  15  Id.  271;  Fahiaa  v.  CoUina,  2Moa. 


207 


|§  1415,  1416 


ACQUISITION  OF  PROPERTY. 


[Div.  II,  Part  IV, 


T.  510.  If  he  is  entitled  to  all  the  water  of  the 
Btream  at  the  point  where  his  ilitcli  starts,  oth- 
ers cannot  complain  if  it  is  enlarged:  Janifn  v. 
Williains,  31  Cal.  "ill.  If  he  did  not  appropriate 
all  tlie  water  of  the  stream,  the  measure  of  his 
right  to  water  is  the  carrying;  capacity  of  his 
ditches  at  tiie  time  the  subsequent  appropri- 
ations were  made.  "  He  is  entitled  to  have 
the  water  undiminished  in  quantity,  so  as  to 
leave  sufficient  to  till  his  ditch  as  it  existed  at 
the  time  the  subsequent  appropriations  above 
him  were  made:  "  JJiar  River  Co.  v.  New  York 
21.  Co.,  8  Id.  .327.  In  Ophir  S.  M.  Co.  v.  Car- 
penter, G  Nev.  393,  the  rule  is  thus  formulated: 
"It  seems  that  the  quantity  of  water  approjiri- 
ated  is  to  be  measured  by  the  capacity  of  tiie 
ditch  or  flume  at  its  smallest  point — that  is,  at 
the  point  where  the  least  water  can  h"  carried 
through  it:  "  See  also  White  v.  Todd  Valley  W. 
Co.,  8  Id.  443;  Ili-jgins  v.  Barker,  42  Id.  2.33; 
Reynolds  v.  Ilosmer,  51  Id.  205;  Douijherty  v. 

1415.    Notice  of  appropriation. 

Sec.  1415.  A  person  desiring  to  appropriate  water  must  post  a  notice,  in 
■writing,  in  a  conspicuous  place  at  the  point  of  intended  diversion,  stating 
therein : 

1.  That  he  claims  the  water  there  flowing  to  the  extent  of  (giving  the  number) 
inches,  measured  under  a  four-inch  pressure; 

2.  The  purposes  for  which  he  claims  it,  and  the  place  of  intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size  of  the  flume, 
ditch,  pipe,  or  aqueduct  in  which  he  intends  to  divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is  posted,  be  recorded  in 
the  office  of  the  recorder  of  the  count}'  in  which  it  is  posted. 
Notije   of  appropriation. — No  particular    in  a  consnicious  place.     Notice  alone  of  an  in- 


ITarjrjln.  Gl  Id.  305;  Stein  Canal  Co.  v.  Ktm 
Island  Co.,  53  Id.  503.  But  it  seems  that  the 
imr])Ose  for  which  the  appropriation  was  in- 
tended, and  not  the  amount  actually  used  dur- 
ing the  first  or  second  year,  is  to  l)e  considered 
in  determining  the  extent  of  an  appropriator'a 
right  in  the  water:  Barnes  v.  Sahron,  10  Nev. 
217;  White  v.  Todd  V.  M.  Co.,  8  Cal.  443. 
And  where  a  person  is  allowed  to  use  water 
which  a  prior  appropriator  of  the  whole  stream 
claims,  such  permissive  use  cannot  grow  into  a 
right  when  the  prior  appropriator  has  occasion 
to  use  all  the  water:  Fcliz  v.  Lov  Angelei,  58  Id. 
73.  Here  the  whole  stream  was  claimed  for 
the  benefit  of  a  town.  See  also  in  note  to  sec. 
1411. 

No  limit  to  amoxmt  first  appropriator 
may  claim:  See  Professor  Pomeroy's  comments 
on  this  feature  of  the  system,  2  West  Coast  Rep. 
300. 


lorm  of  notice  is  required;  all  that  is  necessary 
is  that  it  sliould  by  suthcient  to  put  a  prudent 
man  on  inquiry:  Kimbnll  v.  Ge.arhart,  12  Cal. 
27;  and  to  this  end  its  language  must  be  lib.^r- 
ally  construed:  Osgood  v.  El  Dorado  Co.,  53 
Id.  571,  570.  Th  ^  usual  mode  of  giving  notice 
seems  to  be  by  posting  written  or  priatad  no- 
tices on  or  near  the  place  of  diversion;  the 
above  section  requires  that  the  notice  should  be 


teat  to  divert  water  of  a  stream  for  a  specified 
purpose  will  not  of  itself  constitute  an  appro- 
priation, bat  it  must  be  followed  by  the  cora- 
meuceraent  and  comp'.etion  of  works  for  the 
diversio:!  thereof:  Sec.  1410;  Thompson  v.  Lee, 
8  Cal.  275;  R ihimoii  v.  Imperial  S.  M.  Co..  5 
Nev.  44;  Columbia  M.  Co.  v.  Jloltie,  1  Men. 
T.  29G. 
Ezteut  of  uss:  See  note  to  sec.  1414. 


1416.    Diligence  in  appropriating. 

Sec.  141(1.  Within  sixty  days  after  the  notice  is  posted  the  claimant  must 
commence  the  excavation  or  construction  of  the  works  in  which  he  intends  to 
divert  the  water,  and  must  prosecute  the  work  diligently  and  uninterruptedly 
to  completion,  unless  temporarily  interrupted  by  snow  or  rain. 

Commenoement     and     completion    of    Whether  the  work  has  been  begun  and  prose- 


vrorli3. — After  the  notice  of  intention  to  ap- 
propriate water  is  given,  the  works  by  which 
the  appropriation  is  to  be  effected  must  be 
actually  commenced,  and  then  must  be  prose- 
cuteil  wiih  reasonable  diligence  unto  comple- 
tion, in  onlcr  to  pjrxect  the  exclusive  right  to 
the  use  of  the  water  which  is  obtained  thrau  di 
a  valid  a  >propriation:  Osjood  v.  El  Dorado 
Co.,  5G  Gil  571,  581;  Parke  v.  Kilhim,  8  Id. 
77;  Kimhi'l  v.  Gearhart,  12  Id.  37;  Weavrr  v. 
Eureka  Lake  Co.,  15  Id.  271;  Ophir  Silver  21. 
Co.  v.  Carpenter,  4  Nev.  534;  Woobnan  v. 
Oarringer,  1  Mon.  T.  535;  Sieber  v.  Frink,  2 
West  Coast  Rep.  93.  The  mere  act  of  dig- 
ging a  ditch  wich  an  intent  to  appropriate  will 
not  of  itself  give  a  right  to  the  water  of  the 
stream  if  the  notice  or  publication  of  intention 
be  not  given:  KimbaU  v.  Gearhart,  12  Cal.  27. 


cuted  with  diligence  is  a  question  of  fact  for 
the  jury:  Osgood  v.  El  Dorado  Co.,  supra; 
Weaver  v.  Eureka  Lake  Co.,  15  Id.  271:  Sieber 
V.  Frink,  2  West  Coast  Rep.  98;  Irwin  v.  Strait^ 
4  Id.  5S2.  No  unusual  or  extraordinary  exer- 
tions arc  necessary  in  prosecuting  the  work,  but 
it  must  be  carried  forward  with  diligence:  Ophir 
Silver  M.  Co.  v.  Carpenter,  4  Nev.  534;  Parke 
V.  Kilham,  S  Gil.  n.  In  determining  whether 
proper  diligence  has  been  employed,  it  is  proper 
to  consider  the  nature  of  the  climate  and  ol 
the  soil;  the  ditiiculty  of  obtaining  Libor,  tools, 
or  materials,  and  the  size  and  extent  of  the 
work,  are  proper  subjects  to  be  taken  into  con- 
sideration, but  not  the  pecuniary  circumstances 
of  the  parties:  Kimba'l  v.  Gearhart,  supra,  Ophir 
Silver  M.  Co.  v.  Carpenter,  .supra.  If  there  is 
great  delay  in  the  work,  It  is  not  excused  by 

2G8 


Title  VIII.]  WATER  EIGHTS.  §§  1417-1422 

matters  which  do  not  relate  directly  to  the  en-        Time  from  which  right  of  appropriatioa 

terprise.  such  as  tlie  illness  of  the  appropiiator,     becomes  vested:  See  sec.  1418. 
or  the  lack  of  means,  as  above  stated:  id. 

1417.  Completion  defined. 

Sec.  1417.  By  "  completion"  is  meant  conducting  the  waters  to  the  place  of 
intended  use. 

1418.  Doctrine  of  relation  applied. 

Sec.  1418.  By  a  compliance  with  the  above  rules  the  claimant's  right  to  the 
use  of  the  water  relates  back  to  the  time  the  notice  was  posted. 

Inception  of  appropriator's   right. —The  ing  sucli  time  hy  relation  to  the  time  when  tho 

rule   of    relation   as   detenniuin;^    tiie    time    at  fust  step  was  taken.     \Vlnn  the  work  necessary 

which  the  a[ipropiia tor's  rii^ht  becomes  vested,  to  complete  an  appropriation  of  running  water 

as  dependent    upon    his    compliance  with    the  is  not  [iiosecutcd  with   diligence,  the  nglit    to 

provisions  of   the  law,  is  thus  stated  in   Ophir  tlie  use  of  tlie  water  does  not  relate  back  to  the 

Silter  M.   Co.  v.  Carpenti'r,  4  Nev.  .5;>4:    "In  time  when  the  tii'st  step  was  taken  to  secure  it, 

the  appropriation  of  running  water  for  the  piir-  but   dates    from    the    time  wlien    the  work    is 

pose  of  ac(juiring  a  right  thereto,  if  any  woric  is  completed  or   the  appropriation    is  fully    per- 

necessary  to  be  done  to  complete  the  appropria-  fected."     Application  of  the  princi))le  of  thia 

tion,  the  law  gives  a  reasonable  time  in  which  section:  Sec  Sieber  v.  /''ri;;^,  "2  West  C'oast  Hep. 

to  do  such  work,  and  protects  the  rights  dur-  9S,  and  Irwin  v.  Strait,  4  Id.  582  (Ncv.). 

1419.  Forfeiture. 

Sec.  1419.     A  failure  to  comply  with  such  rules  deprives  the  claimants  of  the 

right  to  the  use  of  the  water  as  against  a  subsequent  claimant  who  complies 

therewith. 

Non-compliance  with  rules:  See  note  to  previous  section. 
Abandonment:  See  note  to  sec.  1411. 

1420.  liights  of  present  claimant. 

Sec.  1420.  Persons  who  have  heretofore  claimed  the  right  to  water,  and  who 
have  not  constructed  works  in  which  to  divert  it,  and  who  have  not  diverted  nor 
applied  it  to  some  useful  purpose,  must,  after  this  title  takes  effect,  and  within, 
twenty  days  thereafter,  proceed  as  in  this  title  provided,  or  their  right  ceases. 

1421.  Recorder  to  keep  hook  in  xuhich  to  record  notices. 

Sec  1421.  The  recorder  of  each  county  must  keep  a  book,  in  which  he  musk 
record  the  notices  provided  for  in  this  title. 

1422.  This  title  not  to  affect  rights  of  riparian  proprietors. 

Sec  1422.  The  rights  of  riparian  proprietors  are  not  affected  by  the  pro- 
visions of  this  title. 

Riparian  rights  not  affected. — See  the  con-  402;  note  to  ffenth  v.  WlUiami^,  4^  Am.  Dec. 
etructiun  of  this  section  in  Liix  v.  J/ni/'jiu,  4  20i);  note  to  Gardner  v.  Ni'ivhnnj/i,  7  Id.  526. 
"West  Coast  Itep.  250,  now  before  the  court  ou  That  a  riparian  owner  has  no  riglit  to  use  all 
a  rehearing.  tha  water  of  a  stream  for  irrigating  purposes,  re- 
Riparian  proprietors  have  a  usufruct  in  the  gardless  of  the  wants  of  others,  although  it  may 
Btream  as  it  passes  their  lands:  Pope  v.  Kiiivt'Di,  be  necessary  for  the  irrigation  of  his  land,  see 
64  Cal.  3;  t'rn;/kfo>i  v.  Evaiia,  53  Id.  55;  Ila'e  Learned  v.  Taiuieman,  3  West  Coast  lie  p.  153. 
V.  MiLea,  Id.  578;  Hanson  v.  Alri'ue,  42  Id.  A  grant  made  by  an  owner  of  land  of  a  right 
303;  and  this  right  attaches  to  undergrouml  to  divert  and  use  the  water  of  a  stream  border- 
currents  flowing  in  defined  channels:  llati.-ton  ing  upon  his  land  cannot  alTcct  the  rights  of  an 
v.  Mei'w.  supra;  Hale  v.  McLea,  supra.  For  adjacent  proprietor  to  the  use  of  his  due  pro- 
a  discussion  of  these  rights  in  general,  see  7i'//is  portion  of  the  water:  Anaheim  Water  Co.  V, 
v.  Tone,  58   Id.  289;  Gould  on  Waters,  358-  Semi- Tropic  Co.,  04  Cal.  185. 

An  Aet  to  promote  irriijation.  • 
[Approved  April  1,  1872;  1871-'2,  'J45.) 
Petition  to  nupervt/tors. 

SicTio.N  1.  Whenever  the  owners  of  any  body  of  lands  susceptible  of  one  modo  of  irrigation 
or  drainage  desire  to  irrigate  or  drain  tho  same,  they  may  present  to  tho  board  of  supervisors  of 
the  county  in  wliicb  the  lands  or  the  greater  portion  thereof  are  situated,  at  a  regular  meeting 
of  the  board,  a  petition  setting  fortli  tliat  they  desire  to  ado[)t  measures  to  irrigate  the  same,  tho 
description  of  the  lands  by  legal  subdivisions,  the  number  of  acres  in  the  whole  district,  and  the 
number  of  acres  in  each  tract,  witii  the  names  of  the  owners  thereof,  and  tlie  names  of  three  per- 
sona who  may  desire  to  serve  as  trustees  for  the  first  three  nioulhs. 

209 


§  1422  ACQUISITION  OF  PROPERTY.  [Div.  II,  Paut  IV, 

Ptiblicntion. 

Si;c.  2.  The  petition  must  be  verified  by  the  affidavit  of  one  of  the  petitioners,  and  must  h« 
published  for  four  weeks  next  preceding  the  liearing  thereof,  in  some  ne\v8i)aper  published  in  the 
county  in  which  the  lands  are  situated;  or  if  there  is  no  newspaper  publisheil  in  the  county, 
then  it  must  be  jjultlisiied  in  some  newspaper  having  a  general  circulation  in  the  county,  and  on 
affidavit  of  publication  must  be  filed  with  such  petition. 

Districls. 

Sec.  3.  Wlien  a  district  is  situated  partly  in  diflFerent  counties,  the  tmstees  must,  after  the 
petition  has  been  granted,  forward  a  copy  tliereof  to  the  clerk  of  the  board  of  supervisors  of  each 
of  the  counties  in  which  any  portion  of  the  district  may  lie,  and  the  board  to  whicli  the  same  is 
forwarded  must  not  allow  another  district  to  be  formed  within  such  district  unless  with  the  con- 
sent of  the  trustees  thereof. 

Approval  of  pptUion —  Trustees. 

Skc.  4.  If  the  board  of  supervisors  find  upon  the  hearing  of  the  petition  that  the  statements 
are  correct,  and  that  no  land  is  improperly  included  or  excepted  from  the  district,  tliey  must 
note  their  approval  on  the  petition,  which  ai)proval  must  be  signed  by  tlie  president  and  attested 
by  the  clerk;  and  from  and  after  the  approval  the  district  is  duly  formed,  and  the  persons 
named  in  the  petition  are  the  trustees  for  the  first  three  mouths,  and  until  their  successors  are 
appointed. 

liecord. 

Sec.  o.  The  petition  must  then  be  recorded  by  the  county  recorder  in  a  book  kept  for  the 
purpose. 

£y-laios. 

Sec.  6.  After  the  approval  of  the  petition,  the  petitioners  may  make  such  by-laws  as  they 
deem  necess;iry  for  future  appointment  of  trustees,  and  to  effect  the  works  of  irrigation  or  drain- 
age, keep  the  same  in  repair  and  operation,  and  for  the  control  and  management  thereof,  by  the 
votes  or  consent  of  a  majority  of  the  owners  of  the  lands  within  tiieir  districts. 

Record  ofby-biws. 

Sec.  7.  Tlie  l)y  laws  adopted  must  be  signed  by  persons  owning  a  majority  of  the  laud  within 
the  district,  and  must  be  recorded  by  the  county  recorder  in  the  same  book  and  immediately 
following  the  petition. 

Powern  of  trustees. 

Sec.  8.  The  board  thus  formed  have  power  to  elect  one  of  their  nnmber  president  thereof, 
and  to  employ  engineers  to  survey,  plan,  locate,  and  estimate  the  cost  of  t!ie  works  necessary 
for  the  iirigation,  the  water  rights  needed,  and  the  land  needed  for  right  cf  way,  including 
drains,  canals,  sluices,  water-gates,  embankments,  and  material  for  construction,  and  to  con- 
struct, maintain,  and  keep  in  repair  all  works  necessary  to  the  object  in  view. 

Reports. 

Sec.  9.  The  board  of  trustees  must  report  to  the  board  of  supervisors  of  the  county,  or  if  the 
district  is  in  more  than  one  county  then  to  the  Ijoanl  of  supervisors  of  each  county  in  wliich  the 
district  is  situated,  the  plans  of  the  work  and  estimates  of  the  costs,  together  with  estimates  of 
the  incidental  expenses  of  superintendence,  repairs,  etc. 

Assessments  for  tevefils. 

Sec.  10.  The  board  by  which  the  district  was  formed  must  appoint  three  commissioners,  dis- 
interested persons,  resident  of  the  county  in  which  the  district  or  some  part  thereof  is  situated, 
and  must  view  and  assess  upon  the  lands  situated  within  the  district  a  charge  proportionate  to 
the  whole  expense  and  to  the  benefits  which  will  result  from  such  works,  which  charge  must  bo 
collected  and  paid  into  the  county  treasury  as  hereinafter  provided,  and  must  be  paced  by  the 
treasurer  to  the  credit  of  the  district,  and  paid  out  for  the  work  of  irrigation  or  drainage  upon 
the  warrants  of  the  trustees,  approved  by  the  board  of  supervisors  of  the  county. 
Warrants. 

Sec.  11.  The  warrants  drawn  by  the  trustees  must,  after  they  are  approved  by  the  board  of 
supervisors,  be  presented  to  the  treasurer  of  the  county,  and  if  they  are  not  paid  on  presenta- 
tion, like  indorsement  must  be  made  thereon,  and  they  must  be  registered  in  like  manner  as 
county  warrants. 

Payments  ichere  district  in  two  counties. 

Sec.  12.  If  a  district  is  situated  partly  in  diflFerent  counties,  the  charge  must  be  paid  into 
the  treasury  of  the  county  in  which  the  particular  tract  may  be  situated. 

Further  assessm/'nts. 

Sec.  13.  If  the  original  assessment  is  insufficient  to  provide  for  the  complete  irrigation  or 
drainage  of  the  lands  of  the  district,  or  if  further  assessments  are  from  tiuic  to  time  ref|uired  to 
provide  for  tlie  protection,  maintenance,  and  repnir  of  the  works,  tlie  trustees  mnst  p:-esent  to 
the  board  of  supervisors  by  which  the  district  was  formed  a  statement  of  tlie  work  to  be  done 
and  its  estimated  cost,  and  the  board  must  make  an  order  directing  the  cmmission'-rs  who 
made  the  original  assessment,  or  other  cominissiouers  to  be  named  in  sncli  order,  to  assess  the 
amount  of  such  estimated  cost  as  a  charge  upon  the  lands  within  tlie  district,  which  assessment 
must  be  made  and  collected  in  the  same  manner  as  the  original  assessment. 

List  of  chanjes  assessed. 

Sec.  14.  The  commissioners  appointed  by  the  boaxd  of  supervisors  ma.>t  make  »  list  of  the 
charges  assessed  against  each  tract  of  land. 

270 


Title  VIII.]  WATER  RIGHTS.  §  1422 

List,  tchat  to  contain. 

Sec.  15.     The  list  must  contain: 

1.  A  deicriiition,  hy  legal  subdivisions  or  natural  boundaries,  of  each  tract  assessed; 

2.  Tlie  number  of  acres  in  eacli  tract; 

3.  The  namis  of  the  owners  of  each  tract,  if  known,  and  if  unknown,  that  fact; 

4.  The  amount  of  the  charge  assessed  against  each  tract. 
List  to  be  fled  ivith  treasurer. 

Sec.  16.     Tiie  list  so  made  must  be  filed  with  the  county  treJasurer  of  the  county,  or  if  the 
district  is  partly  situated  in  different  counties,  tiien  tlie  original  list  must  be  filed  in  the  county 
first  in  order  under  alphabetical  arranL^emcnt,  and  copies  tliereof,  certiiied  by  the  commissioner, 
must  be  filed  with  the  treasurer  of  each  of  the  other  counties. 
Charges,  when  constitute  liens. 

Six.  17.     From  and  after  the  filing  of  the  list,  or  certified  copy  thereof,  the  charges  assessed 
upon  any  ti-act  of  laud  within  the  county  constitutes  a  lieu  thereon. 
Payments. 

Stc.  IS.     Tlie  lists  thus  prepared  must  remain  in  the  office  of  the  treasury  for  tliirty  dayj,  or 
longer  if  ordercil  by  the  board  of  trustees,  and  daring  the  time  they  so  remuu  any  person  mav 
pay  the  amount  of  the  charge  against  any  tract  to  the  trea&urei-,  without  cost. 
Action  to  collect  charges. 

Sr.c.  19.  If  at  the  end  of  thirty  days,  or  of  the  longer  time  fixed  by  the  trastees,  all  of  the 
charges  have  not  been  paid,  the  treasurer  must  return  the  lists  to  the  district  attorney,  who  must 
at  once  proceed  by  civil  action  to  collect  such  charges. 

War/:. 

Si:c.  20.     The  work  must  be  executed  under  the  direction  and  in  the  manner  prescribed  by 
the  board  of  trustees. 
Accoiinfs. 

Sec.  21.     The  board  must  keep  accurate  accounts  of  all  expenditures,  which  accounts,  and 
all  contracts  that  may  be  made  by  them,  are  open  to  the  inspection  of  the  board  of  supervisors, 
and  every  person  interested. 
Propertif  man  ''^  arqiiired. 

Sec  21.     The  trustees  may  acquire,  by  purchase,  all  property  necessary  to  carry  out  and 
maintain  the  system  of  irrigation  or  drainage  provided  for. 
Condemiialion. 

Sec  22.     Tlie  trustees  may  acquire  by  condemnation: 

1.  The  liglit  to  the  use  of  any  running  water  not  already  used  for  culinary  or  domestic  pur- 
poses, or  for  irrigating,  milling,  or  mining  i)urposcs;' 

2.  The  right  ot  way  for  canals,  drains,  embankments,  and  other  work  necessary,  and  may 
take  materia.ls  for  the  construction,  maintenance,  and  repair  thereof,  from  lands  outside  of  as 
well  as  wiihiu  tiie  limits  of  the  district. 

Practice. 

Sec  2:5.     The  provisions  of  Title  VII.,  Part  III.,  of  the  Code  of  Civil  Procedure  are  applica- 
ble to,  ami  the  condemnation  herein  provided  for  must  be  made  thereunder. 
Irrigation  or  ilrainage  by  individual  owners. 

Sec  24.  U'iieuever  any  district  suscepiible  of  one  mode  of  irrigation  or  drainage  is  entirely 
owned  by  parties  who  desire  to  irrigate  or  drain  the  same,  and  to  manage  the  irrigation  or  drain- 
age without  the  intervention  of  trustees  or  the  establishment  of  by-laws,  they  may  ii!e  the  peti- 
tion pi  oviJed  for  in  sections  one  and  two,  and  must  state  therein  that  they  intend  to  undertake 
the  irri3'a,tion  (^r  drainage  on  their  own  responsibility. 
Privileges  of  oirners. 

Sec  2.").     If  llie  petition  is  granted,  the  owners  of  the  lands  have  all  the  rights,  immunities, 
and  privileges  granted  to  boards  of  trustees,  and  in  all  proceedings  the  names  of  the  owners  may 
be  used  insiead  of  the  names  of  trustees. 
Ifot  ap/ilirah/e  to  certain  counties. 

Sec.  20.  Tliis  act  shall  not  be  so  construed  as  applying  to  the  counties  of  Fresno,  Kern, 
Tulare,  and  Yolo. 

Sec  27.  This  act,  and  the  provisions  of  the  title  of  the  Code  of  Civil  Procedure  herein 
referred  to,  so  far  as  proceedings  under  tiiis  act  are  to  be  had,  shall  be  in  force  from  and  after 
the  passage  of  this  act. 

An  Act  authorizing  the  boards  of  supervisors  of  the  counties  in  which  wafer  is  sold  for  the  purpose 
of  irrigation  tojix  the  rates  at  rchh-li  icater  shall  be  sold. 
[Approved  March  20,  1880;  1880,  10  (Ban.  ed.  09).] 
Supervisors  tofx  rates. 

Sectio.n  1.  Tlio  boards  of  supervisors  of  the  several  counties  of  this  state  in  wluch  water  is 
appropriated,  furnished,  and  sold  principally  for  the  purposes  of  irrigation,  arc  hereby  author- 
ized and  required  to  fix  the  maximum  rates  at  which  such  water  shall  he  furnished  and  sold,  at 
a  meeting  to  be  held  in  the  month  of  February  of  each  year;  provided,  that  i;i  the  year  cigliteen 
hundred  ami  eiglity  such  rates  shall  be  fixed  at  the  first  meeting  after  the  passage  of  this  act. 
The  rates  so  fixed  and  established  sliall  be  in  force  from  and  after  the  lirst  day  of  July,  after 
the  date  of  fixing  said  rates,  and  siiali  continue  1:1  force  for  the  period  of  one  j'ear;  provided, 
that  nothing  in  this  section  shall  apply  to  water  furnished  within  the  limits  of  any  incorporated 
city  and  county,  city,  or  town. 

271 


§  1422  ACQUISITION  OF  PROPERTY.  [Div.  U,  Part  IV, 

Forfeiture  of  franchise. 

Sec.  2.     Any  person,  company,  or  corporation  collecting  rates  for  water  furnished  for  irriga- 
tion in  any  county  in  this  state  iu  excess  of  the  I'ates  as  provided  in  section  one  of  this  act 
shall  forfeit  for  the  pulilic  use  tlie  fi-ani:hise  an  I  water- works  of  sucii  person,  company,  or  cor- 
poration to  tlie  County  in  which  such  excessive  rates  were  cliarged. 
Action  to  evforcoforfnlnre. 

Sec.  3.  Upon  alK<Iavit  being  made  hy  any  interested  party,  setting  forth  that  any  such  com- 
pany, person,  or  corporn*-ion  has  charged  r;ites  for  v.'ater  furnished  for  irrigating  purposes  in 
excess  of  the  rates  estaolialied  hy  the  board  of  supervisors,  tlie  said  board  of  supervisors  shall 
cause  the  district  attorney  to  commence  an  aciion  in  the  superior  court  of  the  county,  wi  hin 
thirty  days  from  the  receipt  by  thtin  of  such  alhdavit,  to  enforce  the  foi'feiturc  of  the  franchise 
and  water-works  of  such  person,  company,  or  corporation. 
To  compel  the  pe.rformaace  of  the  duties  of  snpervi-tors. 

Sec.  4.     If  the  l^oard  of  supervisors  fail  or  neglect  to  fix  the  rates,  as  provided  in  section  one 
of  this  act,  or  it  the  board  of  supervisors  fail  or  neglect  to  commence  the  action  provided  for 
in  section  three  of  this  act,  as  therein  provided,  any  interested  person  may  commence  proceed- 
ings to  compel  the  performance  of  such  duties. 
Control  <f  use  of  loater  prohibited. 

Sec.  5.     No  person,  company,  or  corporation  selling  water  for  irrigation  shall  be  permitted 
to  exercise  any  control  as  to  the  use  of  the  water  after  its  delivery  to  the  purchaser. 

Sec.  6.     This  act  shall  take  effect  immediately. 

An  Act  to  regulate  and  control  the  sale,  rental,  and  distribution  of  appropriated  toater  in  fhissfafCf 

other  than  in  any  cifi/,  city  and  county,  or  town  therein,  and  to  secure  the  rights  of  way  for  the 

conveyance  of  such  water  to  the  places  of  use. 

[Approved  March  12,  18S5;  1835,  03.] 
Appropriated  ivater  a  public  use. 

Section  1.  The  use  of  all  water  now  appropriated,  or  that  may  hereafter  be  appropriated, 
for  irrigation,  sale,  rental,  or  distribution,  is  a  public  use,  and  the  right  to  col'ect  rates  or  com- 
pensation lor  use  of  sucli  water  is  a  franchise,  and  except  when  so  furnished  to  any  cl^y,  city 
and  count}',  or  town,  or  the  inhabitants  thereof,  shall  be  regulated  and  controlled  in  t!ic  coun- 
ties of  this  state  by  the  several  boards  of  supervisors  thereof,  iu  the  manner  prescribed  ia 
this  act. 
Supervisors  to  fix  maximum  rates. 

Sec.  2.  The  sevci-al  boards  of  supervisors  of  this  state,  on  petition  and  notice  as  proviled  in 
section  three  of  tiiis  act,  are  hereby  autho;'ized  antl  rcriuircd  to  fix  and  regulate  the  maximum 
rates  at  which  any  person,  company,  association,  or  corporation,  having  or  to  have  appropriated 
water  for  sale,  rental,  or  distribution  iu  each  of  such  counties,  may  and  shall  sell,  rent,  or  dis- 
tribute the  same. 
Petition  to  fix  mater  rates. 

Sec.  3.  Whenever  a  petition  of  not  less  than  twenty-five  inhabitants,  who  are  tax-payers  of 
any  county  of  tliis  state,  shell  in  Avriting  petition  the  board  of  supervisors  thereof,  to  be  filed 
with  the  clerk  of  said  boai-d,  to  regulate  and  control  the  rates  and  compensation  to  be  collected 
by  any  person,  co  npany,  association,  or  corporation,  for  the  sale,  rental,  or  distribution  of  any 
appropriated  water  to  any  of  the  inhabitants  of  such  county,  and  shall  in  such  petition  specify 
the  persons,  comi)anies,  iissociatioiis,  or  corporations,  or  any  one  or  more  of  them,  whose  water 
rates  are  therein  petitioned  to  be  regulated  or  controlled,  the  clerk  of  such  board  shall  innnedi- 
ately  cause  such  petition,  together  with  a  notice  of  the  time  and  place  of  hearing  thereof,  to  be 
published  in  one  or  more  newspapers  published  in  such  county;  r.nd  if  no  ncwspa)icr  be  pub- 
lished therein,  then  shall  cause  copies  of  such  petiiion  ami  notice  to  Ije  posted  in  not  less  than 
three  public  places  in  such  counties,  and  such  publication  and  notice  shall  bo  for  not  less  t'lan 
four  weeks  next  before  the  hearing  of  said  petition  by  said  board;  such  notice  to  be  attached  to 
said  petition  sluill  specify  a  day  of  the  next  regular  term  of  tlie  session  of  the  said  board,  not 
less  tiian  thirty  days  after  the  lii'st  publication  or  posting  tlicreof,  for  the  hearing  of  said  peti- 
tion, which  shall  imp\rt  notice  to  all  such  persons,  companies,  associations,  and  corporationa 
mentioned  in  sucii  i)ctitiou,  and  all  persons  interested  in  the  matters  of  such  petition  and  notice. 
Such  board  miy  also  tausc  citations  to  issue  to  any  person  or  persons  within  such  county,  to 
attend  and  give  evidence  at  the  hearing  of  such  petition,  and  may  compel  such  attendance  by 
attachment. 
Supervisors  to  rxfimnte  value  of  property  and  expenses. 

Sec.  4.  At  the  hearing  of  said  petition  the  board  of  supervisors  shall  estimate,  as  near  as 
may  bo,  the  value  of  the  canals,  ditches,  (lumcs,  water-chutes,  and  all  other  property  actually 
used  and  useful  to  the  ap[)ropriation  and  furnishing  of  such  water,  belonging  to  and  pos.-.essed 
by  each  person,  association,  company,  or  corporation  whose  franchise  shall  Ijc  so  regul.itcd  and 
controlled;  and  shall  in  like  manner  estimate  as  to  eacli  of  such  persons,  companies,  associations, 
and  corporations,  tlicir  annual  reasonable  expenses,  including  the  cost  of  repairs,  manageuient, 
and  operating  such  works;  and  for  the  purpose  of  such  ascertainment  may  require  the  attend- 
ance of  parsons  to  give  evidence,  and  the  production  of  papers,  liooks,  and  accounts,  and  may 
compel  t'le  attendance  of  such  persons  and  the  production  of  papers,  books,  and  accounts,  by 
attachments,  if  wifcldu  their  respective  counties. 
Different  rates  vxay  be  establ'slied. 

Sec.  5.     In  tlic  re  julation  and  control  of  such  water  rates  for  each  of  such  persons,  companies, 
•ssociations,  and  corporations,  such  board  of  suparvisora  may  establish  dilTereut  rates  at  which 

27;! 


Title  VIII.]  WATER  EIGHTS.  §  1422 

water  may  and  shall  be  sold,  rented,  or  distributed,  as  the  case  may  be;  and  may  also  e.«.tablish 
different  rates  and  compensation  for  such  water  so  to  be  furnished  for  the  several  different  uses, 
such  as  mining,  irrigating,  mechanical,  manufacturing,  and  domestic,  for  which  such  water  shall 
be  supplied  to  such  inhabitants,  but  such  rates  as  to  each  class  sliall  be  equal  and  uniform.  Said 
boards  of  supervisors,  in  fixing  sucii  rates,  shall,  as  near  as  may  be,  so  adjust  them  that  the  net 
annual  receipts  and  profits  thereof  to  the  said  persons,  companies,  associations,  and  corpoi-ations 
80  furnisliiug  such  water  to  such  inhaliitants  shidl  be  not  less  than  six  nor  more  than  eigliteen 
per  cent  ujiou  the  said  value  of  the  canals,  ditclies,  flumes,  chutes,  and  all  other  property  actu- 
ally used  and  ii-seful  to  the  appropriation  and  furnishing  of  sucli  water  of  each  of  such  persons, 
companies,  associations,  and  corporations;  but  in  estimating  such  net  receipts  and  profits,  the 
cost  of  any  extensions,  enlargements,  or  otlier  permanent  improvements  of  such  water  rights  or 
water-works  shall  not  be  included  as  part  of  the  said  expenses  of  management,  repairs,  and  operat- 
ing of  such  works,  but  when  accomplished,  may  and  shall  be  included  in  the  present  cost  and 
cash  value  of  such  work.  In  lixing  said  rates,  witjiin  tiie  limits  aforesaid,  at  wiiich  water  sliall 
be  so  furnished  as  to  each  of  such  persons,  compiinies,  associations,  and  corporations,  eacli  of 
Baid  iioard  of  supervisors  may  likewise  take  into  estimation  any  and  all  other  facts,  circumstances, 
and  conditions  pertinent  thereto,  to  the  end  and  purpose  that  saiil  rates  shall  be  equal,  reason- 
able, and  just,  botli  to  such  persons,  eom:ianies,  associations,  and  corporations,  and  to  said 
inhabitants.  The  said  rates,  when  so  fixed  by  such  ijoanl,  shall  be  binding  and  conclusive  for 
not  less  than  one  year  next  after  their  establishment,  and  nntil  established  anew  or  abrogated 
by  such  board  of  supervisors,  as  liereinafter  provided.  An  I  until  such  rates  shall  be  so  estab- 
lished, or  after  they  shall  have  been  abrogated  by  such  l>oard  of  supervisors,  as  in  this  act 
provided,  the  actual  rates  established  and  collected  by  each  of  the  ])ersons,  companies,  associa- 
tions, ami  corporations  now  furnishing,  or  that  shall  hereafter  furnish  appropriated  waters  for 
Bale,  rental,  or  distribution  to  ihe  inliabitants  of  any  of  the  counties  of  thia  state,  shall  be  deemed 
and  accepted  as  the  legally  established  rates  tliereof. 

Hates  way  be  changed. 

Sec.  6.  At  any  time  after  the  establishment  of  such  water  rates  by  any  board  of  supervisors 
of  this  state,  the  same  may  be  established  anew,  or  abrogated  in  whole  or  in  part  by  such  board, 
to  take  effect  not  less  than  one  year  next  after  such  first  establishment,  but  subject  to  said  limi- 
tation of  one  year,  to  take  elfect  immediately  in  the  following  manner:  Upon  the  wi-itten  peti- 
tion of  inhabitants  as  hereinbefore  provided,  or  upon  the  written  petition  of  any  of  the  persons, 
companies,  associations,  or  corporations,  the  rates  and  compensations  of  whose  appropriated 
waters  have  already  been  fixed  and  regulated,  and  are  still  subject  to  such  regulation  hy  any 
board  of  supervisors  of  this  state,  as  in  tliis  act  provided;  and  upon  the  like  publication  or  post- 
ing of  such  petition  and  notice,  and  for  the  bke  period  of  time  as  hereinbefore  pi'ovided,  such 
board  of  supervisors  shall  proceed  anew,  in  the  mmner  hereinbefore  provided,  to  fix  ami  estab- 
lish the  water  rates  for  such  person,  company,  association,  or  corporation,  or  any  number  of 
them,  in  the  same  manner  as  if  such  rates  had  not  been  previously  established,  and  may,  upon 
the  petition  of  such  inhabitants,  but  not  otherwise,  abrogate  any  and  all  existing  rates  thereto- 
fore established  by  such  board.  All  water  rates,  wlien  fixed  and  established  as  iierein  provided, 
shall  be  in  foi-ce  and  effect  until  established  anew  or  abrogated,  as  provided  in  this  act. 

Record  of  rates. 

Sec.  7.  Each  board  of  supervisors  of  this  state,  when  fixing  and  establishing,  or  fixing  and 
establishing  anew,  or  abolisliing,  any  pre\iously  established  water  rates,  as  h<'reinl)efore  pro- 
vided, shall  cause  a  record  to  be  made  thereof  in  the  records  of  such  board,  and  cause  tht;  same 
to  be  published  or  posted  in  the  manner  and  for  the  time  required  for  the  publication  or  posting 
of  said  petitions  and  notices. 

Eaten  vot  to  exceed  those  Jixed  by  nupervisors. 

Sec.  8.  Any  and  all  persons,  companies,  associations,  or  corporations,  furnisliiug  for  sale, 
rental,  or  distribution  any  appropriated  waters  to  the  inhabitants  of  any  county  or  counties  of 
this  state  (other  than  to  the  inhaliitants  of  any  city,  city  and  county,  or  town  therein),  shall  so 
sell,  rent,  or  distribute  such  waters  at  rates  not  exceeding  the  estaljlished  rates  fixed  and  regu- 
lated therefor  by  the  Loanls  of  supervisors  of  such  counties,  or  as  fixed  and  established  by  such 
person,  company,  association,  or  corporation,  as  provided  in  this  act. 

Actual  dama'jes  to  be  recovered  for  exces!<ive  ratcK. 

Skc.  y.  If  any  person,  company,  association,  or  corporation,  whose  water  rates  for  any 
county  of  this  state  have  been  fixed  and  regulated  by  a  boanl  of  supervisors,  as  in  this  act  pro- 
vided, and  while  such  rates  are  in  force,  shall  co.lect  for  any  appropriate<l  water  fuiniislied  to 
any  inhabitant  of  such  county  water  rates  in  excess  of  such  established  rates,  shall  lie  liable,  in 
an  action  by  any  such  inliabitant  so  aggrieved,  to  a  recovery  of  the  whole  rate  .so  collected, 
together  with  actual  damages  sustained  Ijy  such  inhabitants,  with  costs  of  suit. 
Water  companies  to  sell  tcater  upon,  tender  of  rates. 

Sec.  10.  Every  person,  com[)any,  associition.  and  corporation,  having  in  any  county  in  the 
rotate  (other  than  in  any  city,  city  and  county,  or  town  therein)  appropriated  waters  for  sale, 
rental,  or  distriltution,  to  the  inhabitants  of  such  county,  upon  doniand  therefor,  and  ten<ler  in 
money,  of  such  estalilished  water  rates,  shall  lie  obliged  to  sell,  rent,  or  distribute  such  water  to 
Buch  inhabitants  at  the  established  rates  legulated  and  fixed  thorefbr,  as  in  this  act  provided, 
whether  so  fixed  by  the  board  of  supervisors  or  otherwise,  to  the  extent  of  the  actual  supply  of 
Bucii  appropriated  waters  of  such  pi^rson,  company,  association,  or  corporation,  for  sncli  pur- 
poses. If  any  jjcrson,  company,  association,  or  corporation,  having  water  for  such  use,  shall 
refuse  compliance  with  such  demand,  or  shall  neglect,  fir  the  perioil  of  five  days  after  such 
demand,  to  comply  therewith  to  the  extent  of  his  or  its  reasonable  ability  so  to  do,  shall  bo 

Civ.  Code— 18  273 


S  1422  ACQUISITION  OF  PROPERTY.  [Div.  II,  Paet  IV. 

liable  in  damages  to  the  extent  of  the  actual  injury  sustained  by  the  person  or  party  making 
such  demand  and  tender,  to  be  recovered,  with  costs. 
Eminent  domntn. 

Sec.  11.  Whenever  any  person,  company,  association,  or  corporation  shall  have  acquired 
the  right  to  appropriated  water,  or  shall  have  acquired  the  right  to  appropriate  such  water  in 
this  state,  such  person,  company,  association,  or  corporation  may  proceed  to  condemn  the  lands 
and  premises  necessary  to  such  right  of  way,  under  the  provisions  of  Title  VII.  of  Part  III. 
of  the  Code  of  Civil  Procedure  of  this  state,  and  amendments  made  and  to  be  made  thereto;  and 
all  the  provisions  of  said  code,  so  far  as  the  same  can  be  made  applicable,  relating  to  the  con- 
demnation and  taking  of  property  for  public  uses,  shall  be  applicable  to  the  provisions  of  thia 
act. 

8eo.  12.    This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

274 


TITLE   X,    Part    IV,    Division    II    (New). 

(In  effect  from  and  after  July  1,  1909.     Stats.  lOOO,  Chap.  225.) 
Mining  Claims. 

142G.  Mining   Claims;    How   Located. 

1426a.  Boundaries. 

142Gb.  Recordation. 

142GC.  Placer   Claims;    How    Located. 

1426d.  Recordation. 

1426e.  Tunnel    Rights;    How   Located. 

1426f.  Boundaries. 

1426g.  Recordation. 

1426h.  Defective   Location;   How  Remedied. 

14261.  When    Survey   and    Certificate    Part   of    Record. 

1  i26j.  Mill  Site;   Location  of. 

1426k.  Recordation. 

14261.  Improvements. 

1426m.  Value   of    Improvements;    How    Established. 

1426n.  Recordation    Fee. 

14260.  Notice   of    Delinquency;    How   Given. 

1  i26p.  Record   of    Location   as    Evidence. 

142Gq.  Certified  Copies  of  Records  as   Evidence. 

1426r.  Construction. 

1426s.  Disqualification    for    Failure    to    Perform    Develop- 
ment work. 

1426.  Mining  Claims;  How  Located.  Any  person,  a  citi- 
•  o."  tlie  United  States,  or  who  has  declared  his  intention 
i<j  ijecd^iie  sucli,  wlio  discovers  a  vein  or  lode  of  quartz,  or 
other  rocK.  in  place,  bearinj?  gold,  silver,  cinnabar,  lead,  tin, 
copper,  or  other  valuable  deposit,  may  locate  a  claim  upon 
Kuch  vein  or  lode,  by  defining  the'  boundaries  of  the  claim, 
in  tlie  manner  hereinafter  described,  and  by  posting  a  notice 
of  such  location,  at  the  point  of  discovery,  which  notice  must 
contain:  First — The  name  of  the  lode  or  claim.  Second — 
'Plw  name--  Of  the  locator  or  locators.  Third — The  number  of 
linear  feet  claimed  in  length  along  the  course  of  the  vein, 
wach  way  fronrv  the  point  of  discovery,  with  the  width  on  each 
side  of  the.f-eTitcr  of  the  x?laim,  and  the  general  course  of  the 
•vtilii  or.lottevas  near  a;s  may  be.  Fourth — The  date  of  loca- 
tion.    Fiftli — Such  a  description  of  the  claim  by  reference  to 


some  natural  object,  or  permanent  monument,  as  will  Identify 
the  claim  located. 

1436a.  Boundaries.  The  locator  must  define  the  boun- 
daries of  his  claim  so  that  they  may  be  readily  traced,  and  in 
no  case  shall  the  claim  extend  more  than  fifteen  hundred  feet 
along  the  course  of  the  vein  or  lode,  nor  more  than  three 
hundred  feet  on  either  side  thereof,  measured  from  the  cent- 
er line  of  the  vein  at  the  surface. 

1426b.  Recordation  of.  Within  thirty  days  after  the  post- 
ing of  his  notice  of  location  upon  a  lode  mining  claim,  the  lo- 
cator shall  record  a  true  copy  thereof  in  the  office  of  the 
county  recorder  of  the  county  in  which  such  claim  is  situated, 
for  which  service  the  county  recorder  shall  receive  a  fee  of 
one  dollar. 

1426c.  Placer  Claims;  How  Located.  The  location  of  a 
placer  claim  sliall  be  made  in  tlie  following  manner:  By  post- 
ing thereon,  upon  a  tree,  rock  in  place,  stone,  post  or  monu- 
ment, a  notice  of  location,  containing  the  name  of  the  claim, 
name  of  locator  or  locators,  date  of  location,  number  of  feet 
or  acieage  claimed,  such  a  description  of  the  claim  by  refer- 
ence to  some  natural  object  or  permanent  monument  as  will 
identify  the  claim  located,  and  by  marking  the  boundaries 
so  that  they  may  be  readily  traced;  provided,  that  where  the 
United  States  survey  has  been  extended  over  the  land  em- 
brafccd  in  the  location,  the  claim  may  be  taken  by  legal  sub- 
divisions and  no  other  reference  than  those  of  said  survey 
sliall  be  required  and  the  boundaries  of  a  claim  so  located 
and  described  need  not  be  staked  or  monumented.  The  de- 
scription by  legal  subdivisions  shall  be  deemed  the  equivalent 
of  marking. 

1426d.  Recordation  of.  Within  thirty  days  after  the  post- 
ing of  tlie  notice  of  location  of  a  placer  claim,  the  locator, 
shall  record  a  true  copy  thereof  in  the  office  of  the  county! 
recorder  of  the  county  in  which  such  claim  is  situated,  fori 
which  service  the  recorder  shall  receive  a  fee  of  one  dollar. 

1426e.  Tunnel  Right;  How  Located.  The  locator  of  a 
tunnel  right  or  location,  shall  locate  his  tunnel  right  or  loca- 
tion by  posting  a  notice  of  location  at  tlie  face  or  point  of 
commencement  of  the  tunnel,  which  must  contain:  First — 
The  name  of  the  locator  or  locators.  Second — The  date  of 
the  location.  Third — The  proposed  course  or  direction  of  the 
tunnel.  Fourth — A  description  of  the  tunnel,  with  reference 
to  some  natural  object  or  permanent  monument  as  shall 
identify  the  claim  or  tunnel  right. 


l-126f.  Boundaries.  The  boundary  lines  of  the  tunnel 
shall  he  estahUslied  by  stakes  or  monuments  placed  along 
the  lines  at  an  interval  of  not  more  than  six  hundred  feet 
from  the  face  or  point  of  commencement  of  the  tunnel  to  the 
terminus  of  three  thousand  feet  therefrom. 

1426g.  Recordation  of.  Within  thirty  days  after  the  post- 
ing the  notice  of  location  of  the  tunnel  right  or  location,  the 
locator  shall  record  a  true  copy  thereof  in  the  office  of  the 
county  recorder  of  the  county  in  which  such  claim  Is  situ- 
ated, for  which  service  the  recorder  shall  receive  a  fee  of  one 
dollar. 

1426h.  Defective  Location;  How  Remedied.  If  at  any 
time  the  locator  of  any  mining  claim  horetofure  or  hereafter 
located,  or  his  assigns,  shall  apprehend  that  his  original  lo- 
cation notice  was  defective,  erroneous,  or  that  the  reqiiire- 
ments  of  the  law  had  not  been  complied  with  before  filing; 
or  in  case  the  original  notice  was  made  prior  to  the  passage 
of  this  act,  and  he  shall  be  desirous  of  securing"  cue  benefit  of 
this  act,  such  locator,  or  his  assigns,  may  file  an  additional 
notice,  subject  to  the  provisions  of  this  act;  provided,  that 
such  amended  location  notice  does  not  interfere  with  the 
existing  rights  of  others  at  the  time  of  posting  and  filing  such 
amended  location  notice,  and  no  such  amended  location  no- 
tice or  the  record  thereof,  shall  preclude  the  claimant,  or 
claimants  from  proving  any  such  title  as  he  or  they  may  have 
held   under  previous  locations. 

14361.  V/hen  Survey  and  Certificate  P.irt  of  Record. 
Where  a  locator,  or  his  assigns,  has  the  boundaries  and  cor- 
ners of  his  claim  established  by  a  United  States  deputy  min- 
ora! survey,  or  a  licensed  surveyor  of  this  state,  and  his  claim 
connected  with  the  corner  of  the  public  or  minor  surveys  of 
an  established  initial  point,  and  incorporates  into  the  record 
of  the  claim,  the  field  notes  of  such  survey,  and  attaches  to 
and  files  with  such  location  notice,  a  certificate  of  the  sur- 
veyor, setting  forth:  First,  that  said  suivey  was  actually 
made  by  him,  giving  the  date  thereof;  Second,  the  name  of 
the  claim  surveyed  and  the  location  thereof;  Third,  that  the 
description  incorporated  in  the  declaratory  statement  is  suffi- 
cient to  identify;  such  survey  and  certificate  becomes  a  part 
of  the  record,  and  such  record  is  prima  facie  evidence  of  the 
facts   therein  contained. 

1426J.  IVlill  Site;  How  Located.  The  proprietor  of  a  vein 
or  lode  claim  or  mine,  or  the  owner  of  a  quartz  mill  or  re- 
duction  works,    or    any   person   qualified   by    the    laws   of   the 


T'nited  States,  may  locate,  not  more  than  five  acres  of  non- 
mineral  land  as  a  mill  site.  Such  location  shall  be  made  in 
the  same  manner  as  hereinbefore  required  for  locating  placer 
cluims. 

l-iSGk.  Recordation.  The  locator  of  a  mill  site  claim  or 
location  shall,  within  thirty  days  from  the  date  of  his  loca- 
tion, record  a  true  copy  of  his  location  notice  with  the  county 
recorder  of  the  county  in  which  such  location  is  situated,  for 
which  service  the  lecorder  shall  receive  a  fee  of  one  dollar. 

14261.  Improvements.  The  amount  of  work  done  or  im- 
provements made  during  each  year  to  hold  possession  of  a 
mining-  claim  shall  be  that  prescribed  by  the  laws  of  the 
United   States,    to-wit:     One  hundred   dollars   annually. 

143em.  Value  of  Improvements;  How  Established.  When- 
ever mine  owner,  company,  or  corporation  shall  have  per- 
formed the  labor  and  made  the  improvements  reciuired  by 
law  upon  any  mining  claim,  the  person  in  Whose  behalf  such 
labor  was  performed  or  improvements  made,  or  some  one  in 
his  behalf,  shall  within  thirty  days  after  the  time  limited 
for  performing  such  labor  or  making  such  improvements 
make  and  have  recorded  by  the  county  recorder,  in  books 
kept  for  that  purpose,  in  the  county  in  which  such  mining 
claim  is  situated,  an  affidavit  setting  forth  the  value  of  labor 
or  improvements  made,  the  name  of  the  claim,  and  the  name 
of  the  owner  or  claimant  of  said  claim  at  whose  expense 
the  same  was  made  or  performed.  Such  affidavit,  or  a  copy 
thereof,  duly  certified  by  the  county  recorder,  shall  be  prima 
facie  evidence  of  the  performance  of  such  labor  or  the  mak- 
ing of  such   improvements,   or  both. 

1426n.  Recordation  Fee.  For  recording  the  affidavit  here- 
in riKiuired,  the  county  recorder  shall  receive  a  fee  of  fifty 
cents. 

14260.  Notice  of  Delinquency;  How  Given.  Whenever  a 
co-owner  or  co-owners  of  a  mining  claim  shall  give  to  a  de- 
linniient  co-owner  or  co-owners  the  notice  in  writing  or 
notice  by  publication  provided  for  in  section  2.324,  Revised 
Statutes  of  the  United  States,  an  affidavit  of  the  person 
giving  such  notice,  stating  the  time,  place,  manner  of  ser- 
vice, and  by  whom  and  upon  whom  such  service  was  made, 
shall  bo  attached  to  a  true  copy  of  such  notice,  and  such 
notice  and  affidavit  must  be  recorded  in  the  office  of  the 
county  recorder,  in  books  kept  for  that  purpose,  in  the 
county  in  which  the  claim  is  situated,  within  ninety  days, 
after  the  giving  of  sucli  notice;   for  the  recording  of  which 


said  recorder  shall  receive  the  same  fees  as  are  now  al- 
lowed by  law  for  recording  deeds;  or  if  such  notice  >s 
given  by  publication  in  a  newspaper,  there  shall  be  at- 
tached to  a  printed  copy  of  sucli  notice  an  affidavit  of  the 
printer  or  his  foreman,  or  principal  clerk  of  such  paper,  stat- 
ing the  date  of  the  first,  last  and  each  insertion  of  such  no- 
tice tiierein,  and  where  the  newspaper  was  published  during 
that  time,  and  the  name  of  such  newspaper.  Such  affidavit 
and  notice  shall  be  recorded  as  aforesaid,  within  one  hun- 
dred and  eighty  days  after  the  first  publication  thereof.  The 
original  of  such  notice  and  affidavit,  or  a  duly  certified  copy 
of  the  record  thereof,  shall  be  prima  facie  evidence  that  the 
delinciuent  mentioned  in  section  2324  has  failed  or  refused  to 
contribute  his  proportion  of  the  expenditure  required  by  that 
section,  and  of  the  service  of  publication  of  said  notice;  pro- 
vided, the  writing  or  affidavit  hereinafter  provided  for  is  not 
of  record.  If  such  delinquent  shall,  within  the  ninety  days 
required  by  section  2324,  aforesaid,  contribute  to  his  co-owner 
or  co-owners,  his  proportion  of  such  expenditures,  and  also 
all  costs  of  service  of  the  notice  required  by  this  section, 
whether  incurred  for  publication  charges,  or  otherwise,  such 
co-owner  or  co-owners  shall  sign  and  deliver  to  the  delin- 
quent or  delinquents  a  writing,  stating  that  the  delinquent 
or  delinciuents  by  name  has  within  the  time  required  by  sec- 
tion 2324  aforesaid,  contributed  his  share  for  the  year , 

upon  tlie   mine,  and  further  stating  therein  the  dis- 

tiitt,  county  and  state  wherein  the  same  is  situated,  and  the 
book  and  page  where  the  location  notice  is  recorded,  if  said 
mine  was  located  under  the  provisions  of  this  act;  such  writ- 
ing shall  be  recorded  in  the  office  of  the  county  recorder  of 
said  county,  for  which  he  shall  receive  the  same  fees  as  are 
now  allowed  by  law  for  recording  deeds.  If  such  co-owner 
or  co-owners  shall  fail  to  sign  and  deliver  such  writing  to 
the  delinquent  or  delinquents  within  twenty  days  after  such 
rontribution,  the  co-owner  or  co-owners  so  failing  as  afore- 
said shall  be  liable  to  the  penalty  of  one  bundled  dollars  to 
]n-  locovered  by  any  person  for  the  use  of  the  delinquent  or 
(lelinfiuents  in  any  court  of  competent  jurisdiction.  If  such 
co-owner  or  co-owners  fail  to  deliver  such  writing  within  said 
twenty  days,  the  delinquent,  with  two  disinterested  persons 
having  personal  knowledge  of  such  contribution,  may  make 
affidavit  setting  forth  in  what  manner,  the  amount  of,  to 
whom,  and  upon  what  mine,  such  contribution  was  made. 
Such  affidavit,  or  a  record  thereof,  in  the  office  of  the  county 


recorder,  of  the  county  in  which  such  mine  is  situated,  sliall 
be  prima  facio  evidence  of  sucli  contribution. 

1426p.  Record  of  Location  as  Evidence.  Tlie  record  of 
any  location  of  a  mining  claim,  mill  site  or  tunnel  right,  in 
the  office  of  the  county  recorder,  as  herein  provided  shall  be 
received  in  evidence,  and  have  the  same  force  and  effect  in 
tlie  courts  of  the  state  as  the  original  notice. 

1436q.  Certified  Copies  of  Records  as  Evidence.  Copies 
of  the  records  of  all  instruments  required  to  be  recorded  by 
the  provisions  of  tliis  act,  duly  certified  by  the  recorder,  in 
whose  custody  such  records  are,  may  be  read  in  evidence, 
under  the  same  circumstances  and  rules  as  aro  now,  or  may 
be  hereafter  provided  by  law,  for  using  copies  of  instruments 
relating  to  real  estate,  duly  executed  or  acknowledged  or 
proved   and   recorded. 

1426r.  Construction  Existing;  Mining  Districts  and  Regu- 
lations Not  Affected.  The  provisions  of  this  act  shall  not  in 
any  manner  be  construed  as  affecting  or  abolishing  any  min- 
ing district  or  the  rules  and  regulations  thereof  within  the 
state  of  California. 

1436s.  Disqualification  for  Failure  to  Perform  Develop- 
ment Work.  The  failure  or  neglect  of  any  locator  of  a  min- 
ing claim  to  perform  development  work  of  the  character,  in 
the  manner  and  within  the  time  reciuired  by  the  laws  of  the 
T'nited  States,  shall  disqualify  such  locators  from  relocating 
the  ground  embraced  in  the  original  location  or  mining  claim 
or  any  part  thereof  under  the  mining  laws,  within  three  years 
after  the  date  of  his  original  location  and  any  attempted  re- 
location thereof  by  any  of  the  original  locators  shall  render 
sucli  location  void. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  with  this  act, 
are  hereby  repealed.  Civ.  Code,  1909. 


Title  II,  Chap.  III.] 


COXDITIOXAL  OBLIGATIONS. 


f§  1435-1439 


1435.    Conditions,  kinds  <f. 

Sec.  1435.     Conditions  may  be  precedent,  concun-eut,  or  subsequent. 


Conditions    concurrent:    See    sec.    1437, 

Conditions  subsequent:  Seesec.  14r>8,  iw/ra. 
Sec  1  Wliait.  on  Coiit.,  o.  17,  sees.  545  et  seq., 
where  the  subject  is  treated. 


Conditions  of  oivnership:  See  sees.  707, 
70S.  a>df. 

Conditional  legacies:  See  ante,,  sees.  1345, 
1340. 

Conditions  precedent:  See  next  section. 

1436.    Conditions  precedent. 

Sec.  143G.  A  condition  precedent  is  one  which  is  to  be  performed  before 
some  right  dependent  thereon  accrues,  or  some  act  dependent  thereon  is  per- 
formed. 


See  sees.  707,  708,  ante. 

Esamples  of  conditions  precedent — An 

offer  to  iierform  certain  services  provided  tiie 
other  certain  named  conditions:  Northam  v. 
Gordoti,  46  Cal.  582;  a  resolve  of  the  directors 
of  a  mining  corporation  to  sell  the  mine  of  the 
proposed  vendees  will  pay  at  a  time  fixed  a 
cei'tain  sum:  Gordon  v.  Sican,  43  Iil.  5G5. 
Making  the  paynient  of  a  promissory  note  de- 
pendent upon  the  profits  of  the  maker's  mines: 
yVolf  V.  A/arsh,  54  Id.  228;  promise  by  con- 
tractors to  pay  employees  only  where  the  latter 
cannot  after  due  diligence  collect  the  money 


from  the  o\vners:  Bachman  v.  JSIeypr,  49  Id. 
220;  builder's  agreement  to  pay  employees  on 
the  sale  of  the  vessel  built:  WiUisltm  v.  Perkina, 
51  Id.  5.J4. 

Couits  are  disinclined  to  construe  the  stipu- 
lations in  a  contract  to  do  certain  things  within 
a  given  time,  in  consideration  of  the  payment 
of  money  by  tlie  other,  as  conditions  precedent, 
unless  compelled  to  do  so  by  the  express  lan- 
guaije  of  the  contract:  Front  St.  M.  <t  O,  U.  Co. 
V.  Ihiller,  50  Cal.  574. 

Uulav/ful  condition  precedent :  See  sec. 
709,  ante. 


1437.    Conditions  concurrent. 

Sec.  1437.     Conditions  concurrent  are  those  which  are  mutually  dependent, 
and  are  to  be  performed  at  the  same  time. 


Bemichamp  v.  Archer,  53  Id.  431.  The  obliga- 
tions of  the  parties  to  an  agreement  for  the  sale 
of  lands  are  mutual  and  dependent,  and  neither 
party  can  jiut  the  other  in  default  except  by 
tendering  a  performance  on  his  part:  Uii'j/andfr 
V.  Ho'/erl  41  Cal.  420;  Bohall  v.  Dilttr,  Id.  532; 
Kelli/'v.  Mack,  45  Id.  303. 


Concurrent  conditions. — Payment  by  a 
third  person,  on  condition  of  the  release  of  the 
debtor,  are  concurrent  conditions:  S.  S.  <£••  L.  S. 
V.  //iWre^A,  53  Cal.  723.  Where  promises  are 
dependent,  neither  party  can  maintain  an  ac- 
tion without  showing  performance  or  an  offer 
to  perform:  Osborne  v.  Elliott,  1  Id.  337;  pay- 
ment on  delivery:  Fruit  v.  Phelps,  4  Id.  282; 

1438.  Conditions  subsequent. 

Sec,  1438.  A  condition  subsequent  is  one  referring  to  a  future  event,  upon 
the  happening  of  which  the  obligation  becomes  no  longer  binding  upon  the 
other  party,  if  he  chooses  to  avail  himself  of  the  condition. 

Conditions  subsequent. — Sale  of  land  to  51G;  signing  composition  agreement  on  con- 
become  void  on  the  non-confinnation  of  the  dition:  J/at/ee  v.  A'osi,  49Id.  141;  seeaJiie,  sees, 
grant  to  the  vendor:  Frisbie  v.  Moore,  51  Cal.     707,  70S. 

1439.  Performance,  etc.,  of  conditions,  when  essential. 

Sec  143U.  Before  any  party  to  an  obligation  can  require  another  party  to 
perform  any  act  under  it,  he  must  fulfill  all  conditions  precedent  thereto 
imposed  upon  himself;  and  must  be  able  and  offer  to  fulfill  all  conditions  con- 
current so  imposed  upon  him  on  the  like  fulfillment  by  the  other  party,  except 
as  provided  by  the  next  section. 

Condition  precedent  must  be  perf  Drmed 
before  tlie  party  bound  to  fulfill  it  can  demand 
performance  by  the  other:  See  citations  above 
under  sec.  143lj;  Corman  v.  Conuiit,  10  Cal.  254; 
Brannaii  v.  Memk,  Id.  95;  Dermott  v.  Joii€n,  2 
Wall.  1 ;  School  Trustees  v.  Bennett,  27  N.  J, 
L.  513;  Coitus  v.  Delaporle,  115  Mass.  159; 
Wdi<rd  v.  Morse,  32  Pa.  St,  506;  Durlainl  v. 
Pitcairn.  51  Ind.  426;  Jiu^sted  v.  Crai<i,  30  N. 
Y.  221;  Fri'deubnrij  v.    Turner,  37  Mich.   402. 

Prevention  of  performance  is  equivalent    ^  „  _ 

fco  periorniance  by  the  other:  Wolfw  Marsh,  54     and  iu:iy  maintain  an  action  for  the  default  of 
Cal.  228;  see  ;(0.sil,  sees.  1511  et  seq.  the  otiinr,  even  if  it  is  not  certain  which  is 

Performance  of  concurrent  conditions. —  obliged  to  do  the  first  act:  Piatt  on  Covenants, 
One  party  seeking  to  charge  the  other  must  be    71,    And  generally  as  to  the  performance  of  con- 

277 


able  and  offer  to  fulfill  all  concurrent  condi- 
tions: See  Ernst  v.  Cuinmintjs,  55  Cal.  179; 
Barron  v.  Fr!nk.  30  Id.  486;  Osborne  v.  Elliott, 

1  Id.  337;  Peo/>le  v.  Jackson,  24  Id.  632;  Beecher 
V.  Conradl,  13  N.  Y.  108;  Dunham  v.  Pettee,  8 
Id.  508;  Lester  v.  Jewetl,  11  Id.  453;  Bedding- 
ton  V.  Chase,  3t  Cal.  666;  Salmon  v.  Ilajfrnan, 

2  Id.  138.  When  one  party  offers  to  fulfill  his 
part  in  a  concurrent  obligation  and  the  other 
refuses  or  neglects  to  perform  his  part,  he  who 
is  ready  and  offers  has  fulfilled  his  engagement. 


§§  1440-1449  OBLIGATIONS  IN  GENERAL.  [Div.  Ill,  Part  I, 

ditionsprececlent  and  what  they  are,  see  Dudley  Benftley  v.  AfwUl,  12  Id.  231;  Oihhons  v.  Srott, 

V.  Thoraaii,2'^C\x[.'iQo;  Middletonv.  BalluKjall,  15  Id.  2S4;  Palmer  w   Vance,  13  Iil.  5r)3;  Fol- 

1  III.  44G;  /Irauii.du  v.  Mesick,  10  Id.  9o;  C'ft//-  mm  v.  Bartlett,  2  Id.  163;  Vanre  v.  Diii'jley,  14 

Inn  V.  Y/alker,  10  Id.  450;  Mesick  v.  Sunderland,  Id.  53.     Concurrent  and  dependent  conditions: 

G  id.  297;  Kiiikead  v.  Shreve,  17  Id.  275;  Smith  See  6'//ti^/t  v.  B.  d-  M.  Ji.  B.,  6  Allen,  262. 
V.  Gompton,  6  Id.  24;  Bogers  v.  Cody,  8  Id.  324; 

1440.  When  performance,  etc.,  excused. 

Sec.  1440.  If  a  party  to  an  obligation  gives  notice  to  another,  before  tbe 
latter  is  in  default,  that  he  will  not  perform  the  same  upon  his  part,  and  does 
not  retract  such  notice  before  the  time  at  which  performance  upon  his  part  is 
due,  such  other  party  is  entitled  to  eufoi'ce  the  obligation  without  previously 
performing  or  offering  to  perform  any  conditions  upon  his  part  in  favor  of  the 
former  party. 

Refusal  by  one  party  to  perform,  when  iff's  failure  to  perform:  Brooklyn  Life  Ins.  Co. 

not  retracted  before  the  time  for  performance,  v.  Bledsoe,  52  Ala.  53S;  and  see  Cojjiii  v.  Uey' 

excuses  performance  by  the  other:    Bunie.  v.  nolds,  21  Minn.  456;  Simmons  v.  Green,  35  Ohio 

Koop,  48  N.  Y.  225;  Riiffkhi  v.  Baird,  73  N.  C.  St.  104. 

283;  Sii'linjs  v.  Goodyear  Dental  Co.,  30  Mich.         Refusal  to  acoept  p3rformanoe  before  the 

313;  Ilaiiics  v.  Tucker,  50  N.  II.  307,  312.  time  to  perform  is  equivalent  to  an  ofTer  of  per- 

The  act  relied  upon  as  a  waiver  of  perform-  formance  and  refusal:  Sec.  1515,  post, 
ance  must  be  the  proxiuiate  cause  of  the  plaiut- 

1441.  Impossible  or  unlawful  conditions  void. 

Sec.  1441.  A  condition  in  a  contract,  the  fulfillment  of  which  is  impossible 
or  unlawful  within  the  meaning  of  the  article  on  the  object  of  contracts,  or 
which  is  repugnant  to  the  nature  of  the  interest  created  by  the  contract,  is  void. 

Object  of  contracts:  See  sees.  1595,  pos<,  et  ing  to  the   promisor  a  profit;    the   promisor 

seq.                             ^  sold  I  he  mines,  thus  rendering  the  performance 

Unlawful  conditions:  See  sees.  709,  ante,  of   the   condition  precedent   impossil)lc.     The 

et  seq.  ol)li2;ation   to   pay   thereby   became    absolute: 

Conditions,  when  impossible,  within  the  Wolfw  Marsh,  54  Cal.  22S;  so,  Booth  v.  S,>uy- 

meaning  of  al)Ove  section:  See  sees.  1595,  post,  ten  D-njcd  Co.,  60  N.  Y.  4b7,  401;  WhUaker  v. 

et  seq.     The  destruction  of  that  upon  the  con-  Uawley,  25  Kan.  674,  GSO;  Prhe.  v.  Pepper,  13 

tinned  existence  of  which  the  performance  of  Bash,  42;  Walker  v.  Tucker,  70  Iil.  527,  543; 

the  condition   depends,  excuses   non-perform-  Leopold  v.  Salkey,   89  Id.   412,  419;  Wells  v. 

ance.     Thus,  where  one  agreed  to  pay  a  sum  Cainan,  107  Mass.  514. 
of  money  conditioned  upon  certain  mines  yield- 

1442.  Conditions  involving  forfeiture,  how  construed. 

Sec.  1442.  A  condition  involving  a  forfeiture  must  be  strictly  interpreted 
against  the  party  for  whose  benefit  it  is  created. 


CHAPTER  IV. 
ALTERNATIVE  OBLIGATIONS. 

1448.  Who  has  the  right  of  sdedion. 

Sec  1448.  If  an  obligation  requires  the  performance  of  one  of  two  acts,  in 
the  alternative,  the  party  required  to  perform  has  the  right  of  selection,  unless 
it  is  otherwise  provided  by  the  terms  of  the  obligation. 

Alternative  obligations:  See  2  Whart.  on  Gout.  019. 

1449.  Right  (f  selection,  hoio  lost. 

Sec.  1449.     If  the  party  having  the  right  of  selection  between  alternative  acta 

does  not  give  notice  of  his  selection  to  the  other  party  within  the  time,  if  any, 

fixed  by  the  obligation  for  that  purpose,  or  if  none  is  so  fixed  before  the  time 

at  which  the  obligation  ought  to  be  performed,  the  right  of  selection  passes  to 

the  other  partj'. 

^    See  also  Beu-rick  v.  Goldstone,  48  CaL  554,  wliere  a  p  irty  lost  his  elecUon  by  not  cxercisina 
it  on  the  day  named. 

278 


Title  III.]  TRANSFER  OF  OBLIGATIONS.  §§  1450-1460 

1450.  Alternatives  indivisible. 

Sec.  1450.  The  part}'  having  the  right  of  selection  between  alternative  acta 
must  select  one  of  them  in  its  entirety,  and  cannot  select  part  of  one  and  part 
of  another  without  the  consent  of  the  other  party. 

1451.  Nullity  of  one  of  alternative  obligations. 

Sec.  1451.  If  one  of  the  alternative  acts  required  by  an  obligation  is  such  as 
the  law  will  not  enforce,  or  becomes  unlawful,  or  impossible  of  performance, 
the  obligation  is  to  be  interpreted  as  though  the  other  stood  alone. 


TITLE  III. 

TRANSFER  OF  OBLIGATIONS. 

1457.  Burden  of  obligation  not  transferable. 

Sec  1457.     The  burden  of  an  obligation  may  be  transferred  with  the  consent 

of  the  party  entitled  to  its  benefit,  but  not  otherwise,  except  as  provided  by 

Bection  fourteen  hundred  and  sixty-six. 

Transferring  the  burden  of  obligation. —  accept  the  service  from  a  third  person,  and  to 

•'This  is  as  true  of  coveumits  ruaiiiu,^  with  the  release  hiin  therefrom:  Robson  v.  Drummond, 

land  as  of  any  othur  obligations.     The  original  2  Barn.  &  Adol.  30."?.     It  is  not  meant  by  tiiis 

oov-en.intor  remains  liable  t'>  tlie  covenantee,  section  to  imply  that  a  thi.d  person  cannot 

notwithstanding  that  tin;  land  passes  into  other  assume  the  oWliuations  of  a  contract  between 

Lands:  J/ou-iC  v.  Burr,  2\   l>arb.  52.5;  iJamh  v.  other  parties,  Imt  only  tliat  he  cannot  i&'ieve  a 

Jlofman,  3  E.  D.  Smith,  361;  Port  v.  Jnckson,  party  thereto  from  his  obli^'ations  withouc  the 

17  Johns.  2."9,  479;  Jackson  v.  Brownson,  7  Id.  consent  of  the  creditcr:"  Code  commissioners' 

227.     So  wiiere  one  has  agreed  to   perform  a  note, 
service,  he  cannot  compel  the  other  party  to 

1458.  Bights  arising  out  of  obligation  transferable. 

Sec.  1458.     A  right  arising  out  of  an  obligation  is  the  property  of  the  person 
to  whom  it  is  due,  and  may  be  ti'ansf erred  as  such. 
Assignment  of  things  iu  action:    See  sees.  953,  954,  ante. 

1459.  Non-negotiable  instruments  may  be  transferred. 

Sec.  1459.  A  non-negotiable  written  contract  for  the  payment  of  money  or 
personal  property  may  be  transferred  by  indorsement,  in  like  manner  with  nego- 
tiable instruments.  Such  indorsement  shall  transfer  all  the  rights  of  the 
assignor  under  the  instrument  to  the  assignee,  subject  to  all  equities  and 
defeases  existing  in  favor  of  the  maker  at  the  time  of  the  indorsement. 

Negotiable  instruments,  w^hat  are:    See  favor  of  the  maker  at  the  time  of  tlie  indorse- 

secs.  30S7,  ;'0s7,  tt  seq.  ment:  Id.;  Brown  v.  Witts,    57   Id.   304;    Code 

Non-negotiable  instruments  are  assignable  Civ.  Proc,  sec.  3GS.     The  assignee  of  a  non- 

by  indorsement  in  like  manner  with  negotiable  negotiable  instrument  indorsed  in  blank  may  fill 

instruments:  Lui-aa  v.  Pico.   .55  Cal.    126;  but  up  the  blank  in  favor  of  himself:  Lnca.'iv.  Pico, 

subject  to  all  equities  and  defenses  existing  iu  supra;  Poorman  v.  Mills  <fc  Co.,  35  Cal.  118. 

1460.  Covenants  running  with  land,  what. 

Sec  14G0.  Certain  covenants,  contained  in  grants  of  estates  in  real  property, 
are  appurtenant  to  such  estates,  and  pass  with  them,  so  as  to  bind  the  assigns 
of  the  coveuantor  and  to  vest  in  the  assigns  of  the  covenantee,  in  the  same  man- 
ner as  if  the}'  had  personally  entered  into  them.  Such  covenants  are  said  toruu 
with  the  land. 

Implied  covenants:  See  nv(e,  sec.  1113.  ctimhercd  the  land  are  personal,  and  do  not  run 

Covenants    runiii.:g    with   land:    See  the  with  tlie  lantl:    Lawrence  v.    Mout'/om^ry,  37 

Buccfcd  ng    sections   of    this    title,    especially  Cal.  I8.S.     So  also  a  covenant  as  to  the  quan- 

sec-.  14U2,  14(34.  and  notes.  tity  of  land  in  the  tract  conveyed:  Salmon  v. 

Cownaids  tliat  liie  yranior  has  not  sold  or  in-  Vallcjo,  4i  Id.  481. 

279 


«§  1481-1  to?  OBLIGATIONS  IN  GENERAL.  [Div.  HI,  Part  I, 

1461.  What  cove-nanla  run  with  land. 

Sec.  14G1.  The  only  covenants  which  run  -with  the  land  are  those  specified 
iu  this  title,  aud  those  which  are  incidental  thereto. 

1462.  Same. 

Sec.  1402.  Every  covenant  contained  in  a  grant  of  an  estate  in  real  property, 
■which  is  made  for  the  direct  benefit  of  the  property,  or  some  part  of  it  then  iu 
existence,  runs  with  the  land. 

Covenants  running  with  land  are,  in  gen-  lots  owned  by  grantor  should  be  built  in  a  par- 

eral,  those  uiiioli  are  luaile  tor  tlie  direct  l>ei)e-  ticiiLir  maimer:   Wi>ijield  v.    Ili-nniiifj,  21  N.  J. 

fit  of  t!ic  land,  or  of  some  part  of  it:  See  Lajfan  E.|.  ISS;  and  see  Tyler  on  Laud.  &  Ten.,  sees. 

V.  Najlee,  9  Cal.  662;  thus,  covenants  fur  the  2G0  et  sei|.,  and  sees.  444  et  seq. ;   1    Waslib. 

addition  of  some   new  thing  to  the  laud:  See  on    Il'^al    Prop.    sees.    32(5  et  seq.;     1    Smith's 

sec.     1464;    to    maintain    fences:    Broimoii    v.  Lead.  Cas.  ] '.19,  note  to  Spencer's  Ca-'<p;  see  also 

C'nffin,  108  Mass.    175;  Eistcr  v.   Little.   Miami  the  discussion  of  the  princip'es  involved,   in 

H.  /'.  Co.,  14  01iio  St.  48;  not  to  carry  on  a  par-  2\'orman  v.   W'elU,  17  Wend.  191. 
t\c\\\i\.v  tvii<\e.:iiiie  St.  Andreio'x  Chunk  Appeal,        Etfeot   of  txausfers   generally:   See  a/iie, 

67  Pa.  St.  512;  Barron  v.  Richard,  8  Pai-e,  331 ;  sees.  10S3  et  seq. 
S.  C,  3  Edw.  Ch.  9G;  that  houses  ou  adjacent 

1463.  Same. 

Sec.  liGS.  The  last  section  includes  covenants  "  of  warranty,"  "  for  quiet 
enjoyment,"  or  for  further  assurance  on  the  part  of  a  grantor,  and  covenants 
for  the  payment  of  rent,  or  of  taxes  or  assessments  upon  the  land,  on  the  part 

of  a  grantee. 

Covenants  running  with  the  land.—!.  On  Reran,  24  Gratt.  42;  Hurd  v.  Curtis,  19  Pick. 

the  part  of  the  ijiaiitor  of  warranty:  Blackwdl  459. 

V.  Aikhisoii,   14  Cal.  470;    IVeail  v.  Larkin,  54  2.  On  th"  part  of  the  grantee. — To  pay  rent: 

111.    489;  liiiuhkopf  v.    Farmers'  etc.   Co.,  58  Van  Rensselaer  v.  Denlson,  35  N.  Y.  393;    Van 

Barb.   36;  covenant  of    non-claim    in    a  deed  Rensselaer  v.  Smith,  27  Barb.  104;  Worthimjton 

amounts  to  the  ordinary  covenant  of  warranty:  v.  llewes,  19  Ohio  St.  66;  to  pay  taxes  orassess- 

Gee  V.  Mocre,  14  Cal.  472;  Smjdam  v.  Jones,  meiiison  land:  Rostv.  Kearney,  2 '^.  Y.  394. 

25  Am.    Dec.  552;   covenants  of   quiet  enjoy-  Damages  for  the  breach  of  the  above  cov- 

ment  and  further  assurance:  McGary  v.   Has-  enants:  See  sec.  .3304,  po-tt. 

tin>/s,  39  Id.  3G0:  /had  v.  Ainidnn,  4  Hill,  345;  Letter  of  real  property  to  secure  quiet  pos- 

Clai/comb  v.  Munyer,  51  111.  373;  Burtnera  v.  session  of  tlie  hirer:  See  sec.  1927,  post. 

1464.  Whal  covenants  ran  with  land  when  a^sign.'i  are  named.  ' 
Sec.  14G4.     A  covenant  for  the  addition  of  some  new  thing  to  real  property, 

or  for  the  direct  benefit  of  some  part  of  the  property  not  then  in  existence  or 
annexed  thereto,  when  contained  in  a  grant  of  an  estate  in  such  property,  and 
made  by  the  covenantor  expressly  for  his  assigns  or  to  the  assigns  of  the  cove- 
nantee, runs  with  land  so  far  only  as  the  assigns  thus  mentioned  are  concerned. 
See  ante,  sec.  1462. 

1465.  Who  are  bound  by  covenants. 

Sec.  14G5.  A  covenant  running  with  the  land  binds  those  only  who  acquire 
the  whole  estate  of  the  covenantor  in  some  part  of  the  property. 

14G6.    Who  are  not. 

Sec.  14CG.  No  one,  merely  by  reason  of  having  acquired  an  estate  subject  to 
a  covenant  running  with  the  land,  is  liable  for  a  breach  of  the  covenant  before 
he  acquired  the  estate,  or  after  he  has  parted  with  it  or  ceased  to  enjoy  its 
benefits. 

1467.    Apportionment  o/  covenants. 

Sec  14G7.  "Where  several  persons,  holding  by  several  titles,  are  subject  to 
the  burden  or  entitled  to  the  benefit  of  a  covenant  running  with  the  land,  it 
must  be  apportioned  among  them  according  to  the  value  of  the  property  sub- 
ject to  it  held  by  them  respectively,  if  such  value  can  be  ascertained,  and  if  not, 
then  according  to  their  respective  interests  in  point  of  quantity. 

280 


Title  IV,  Chap.  L]  PERFORMANCE.  §§  1473-1478 

TITLE   IV. 

EXTINCTION  OF  OBLIGATIONS. 

Chapter  I.     Perform  vnce 1473 

II.     Offer  of  Performance 1485 

III.  Preventiox  of  Performance  or  Offer 1'^  1. 

IV.  AccouD  AND  Satisfaction 1521 

V.     Novation 1530 

VL     Release 1  '341 

CHAPTER   I. 
PERFORMANCE 

1473.  Obligation  exdnguiftJied  by  performance. 

Sec.  1473.  Full  perlormaace  of  an  obligation  by  the  par.y  whose  duty  it  is 
to  perform  it,  or  by  any  other  person  on  his  behalf,  and  with  his  asstsnt,  if 

accepted  by  the  creditor,  extinguishes  it. 

"  Perfoi-maiice  by  a  third  person,  without  Simpson  v.  Egjinqton,  10  Exch.  84.'5;  James  v. 

autlmrity  ffoMi  the  d'-btof,  does  I'ot  extinguish  Ikuucs,    12  C.   B.   791;    see  P/iillips  v.   Bfrijcr, 

the  (k'ht:  Mulhr  \.  Eho,  14N.Y.  GO-j;  Dunleh  8  Barb.  527;  see  particularly,  Myprs  v.  South 

V. //a//.'«/>-r/.-,  IQWcn.l.  408;  Bfeallc'i/ v.  il  hile,  F.  U.   W.  Co.,   14   Cal.  208;   see   also   note   to 

4  Pai.i^e,  0J)5.     But   by   any   other   [lerson   on  sec.  1478,  pout:"  Coiiinii^sioners*  note, 
behalf  of  t'le  debtor,  and  with  his  assent:  See         Eii'ect  of  jiayment  by  a  stranger  is  discussed 

Kemp  V.  /Jail.'*,  10  ICxch.  607;  Jones  v.  Broad-  in  Neely  \.  Jones,  1(3  W.  Va.  C25. 
hu,>'t,  9  C.  B.  173;  B,'Uhaw  v.  Bush,  11  Id.  191; 

1474.  Performance  by  one  of  several  joint  debtors. 

Sec.  1474.  Performance  of  an  obligation  by  one  of  seYeral  persons  who 
are  jointly  liable  under  it  extinguishes  the  liabili'"y  of  all. 

1475.  Performance  to  one  of  joint  creditors. 

Sec.  1475.  An  obligation  in  favor  of  several  persons  is  extinguished  by  per- 
formance rendered  to  any  of  them,  except  in  the  case  of  a  deposit  made  by 
owners  in  common,  or  in  joint  ownership,  which  is  regulated  by  the  title  oa 
deposit. 

1476.  Effect  of  directions  by  creditors. 

Sec  147G.     If  a  creditor,  or  any  one  of  two  or  more  joint  creditors,  at  any 

time  directs  the  debtor  to  perform  his  obligation  in  a  particular  manner,  the 

obligation  is  extinguished  by  performance  in  that  manner,  even  though  the 

creditor  does  not  receive  the  benefit  of  such  performance. 

Payment  transmitted  in  the  manner  directed  Lithgoiv,  3  Mass.  249;  Jlforfjnn  v.  Blchard'ion, 
by   tlie  creditor  is  at  his   risk:    Wakefield   v.     13  Allen,  410;  (raniey  v.  V/o«;e,  9  Gray,  404. 

1477.  Partial  performance. 

Sec  1477.  A  partial  performance  of  an  indivisible  obligation  extinguishes  a 
corresponding  proportion  thereof,  if  the  benefit  of  such  performance  is  volun- 
tarily retained  by  the  creditor,  but  not  otherwise.  If  such  partial  performance 
is  of  such  a  nature  that  the  creditor  cannot  avoid  retaining  it  without  injuring 
his  own  property,  his  retention  thereof  is  not  presumed  to  be  voluntary. 

]  478.    Payment,  what. 

Sec  1478.     Performance  of  an  obligation  for  the  delivery  of  money  only  is 

c>dled  payment. 

Payment. — "  Where  money  is  delivered  l>y  payment  unless  it  is  shown  to  be  intended  as  a 
one  jiarty  t<>  another,  and  credited  on  account  loan.  But  sucii  is  not  the  case  with  (other) 
b>  him  who  received  it,  it  will  be  considered  a     personal    property,    even   though   a   value   be 

281 


§1479 


OBLIGATIONS  IN  GENERAL. 


Piv.  Ill,  Part  I, 


affixerl  tliereto:  Norton  v.  Larro,  30  C.il.  126. 
So  far  as  extiiiguisliiiig  obligations  for  the  de- 
livery of  money,  payment  and  performance 
have  the  ^ame  meiuung,  so  that  under  this 
peetinn  it  may  not  be  improper  to  note  the 
lea<ling  California  cases  which  involve,  not  the 
definition  of  the  word  '  payment,'  l)ut  rather, 
wliat  operates  as  a  performance  of  the  obli- 
gation to  pay  money,  or  in  other  words, 
what  constitutes  a  payment.  And  tliese 
cases  have  not  always  maintained  the  distinc- 
tion made  in  this  section,  that  a  payment  is 
made  by  the  delivery  of  money  only,  but  pay- 
ment and  performance  are  often  used  in  them 
as  synonymous  terms.  In  Smith  v.  Harper,  5 
III.  .SJil,  it  Avas  held  that  where  a  note  was 
delivered  to  the  maker,  long  before  it  became 
due,  ui)On  his  giving  the  holder  an  order  on 
the  indorsers,  which  was  dishonored,  and 
thereupon  it  was  returned  to  the  holder,  it  did 
iiiit  operate  as  a  payment.  Giving  a  note  does 
not  extinguish  the  debt;  it  only  has  the  effect 
to  suspend  the  right  of  recovery  until  the  ina- 
tuiityof  the  note:  Brewster  v.  Bours,  8  Id. 501; 
Smith  v.Oicenn,  21  Id.  11;  IlirjijiuH  v.  W'ortcU, 
18  Id.  330;  Wdch  v.  AlUnrjion,  23  Id.  322. 
Wliere  a  creditor  received  on  account  of  his 
dbtabillof  exchange  drawn  in  his  favor  by 
t!ie  debtor  upon  a  third  ]jerson,  it  operates  but 
as  a  conditional  payment.  If,  however,  the 
creditor  fails  to  present  it  to  the  drawee  for 
acceptance  or  payment,  as  required  by  the 
rules  of  commercial  law,  it  becomes  tliereby 
an  actual  charge  against  him.  and  operates  pro 
tnito  as  a  satisfaction  of  his  demand:  Brown 
V.  Croiihe,  21  Id.  3SG.  Such  undoubtedly 
would  be  the  case  with  a  bank  check  not  pre- 
Bent;'d  for  payment  within  a  reasonable  time: 
See  Mhiturn  v.  Fuher,  4  Id.  33;  McMillan  v. 
Bichanlx,  9  Id.  3G.3.  In  Bhod('>^  v.  Iliiichleit, 
G  Id.  283,  where  the  defendant,  being  indebted 
to  the  plaintiff,  a  banking  firm,  made  a  pay- 


ment on  account,  in  the  bank,  to  one  of  the 
plaintiff's  clerks,  and  on  a  subsequent  day 
agreed  to  lend  to  the  clerk  the  amount  thus 
paid,  who  took  the  money  and  used  it,  and  tha 
amount  thus  paid  was  never  credited  to  the 
defendant  on  the  books  of  tiie  plaintiff,  it  waa 
held  that  the  amount  paid  by  the  defendant, 
in  the  usual  way  of  business,  was  a  legal  i)ay- 
ment,  and  that  the  defendant  lost  all  control 
over  it.  If  the  defendant  is  liable  for  >  ha 
amount  advanced  (by  plaintiff)  to  the  clerk,  it 
must  be  in  an  action  for  thus  advancing  it,  and 
not  in  an  action  on  the  original  indebtedness  of 
the  defendant.  In  Griffith  v.  Grogan,  12  Id. 
314,  a  part  payment  by  one  of  two  joint  debt- 
ors will  not  discharge  such  debtor  from  the 
payment  of  the  balance.  His  obligation  is  to 
pay  the  whole,  n(jt  a  proportionate  share.  An 
assignment  of  a  joint  and  several  negotiable 
promissory  note  by  the  payee  to  one  of  the 
makers  before  its  maturity  amounts  to  pay- 
ment, and  the  right  of  action  against  the 
makers  is  not  revived  by  a  subsequent  assign- 
ment to  a  third  person  after  maturity.  If  the 
subsequent  assignment,  however,  was  made  to 
an  innocent  person  before  maturity,  a  right  of 
action  would  exist  in  his  favor  against  the 
makers:  Gordon  v.  Wanfiey,  21  Id.  77.  For 
other  cases  deciding  what  did  and  what  did 
not  constitute  a  payment,  see  Cook  v.  Diirin, 
22  Id.  157;  Lodfje  v.  Tiirman,  24  Id.  385; 
GrifUlh  V.  Grorjan,  12  Id.  317;  Colton  v.  Scarry, 
22  Id.  49G;  'Mount  v.  Chapman,  9  Id.  294; 
McCahe.  v.  Grejj,  20  Id.  509;  Mulford  v.  Extn- 
dillo,  23  Id.  94;  Gurj  v.  Du  Uprey,  IG  Id.  195, 
and  cases  there  cited.  And  for  evi  lence  of 
payment,  see  Smith  v.  Ihirper,  5  Id.  329,  and 
compare  with  Banks  v.  J\rarshd!!,  23  Id.  223; 
see  also  Morrill  v.  Morrill,  26  Id.  283.  See, 
further,  'Accord  and  Satisfaction,'  and  'Set- 
offs,' or  'Counter-claims:'"  Commissioners' 
note. 


1479.   Application  of  act  by  way  of  performance  or  extinctions  of  obligation. 

Sec.  1479.  Where  a  debtor,  under  several  obligations  to  another,  does  an 
act,  by  way  of  performance,  in  whole  or  in  part,  which  is  equally  applicable  to 
two  or  more  of  such  obligations,  such  performance  must  be  applied  as  follows: 

1.  If,  at  the  time  of  performance,  the  intention  or  desire  of  the  debtor  that 
such  performance  should  be  applied  to  the  extinction  of  any  particular  obliga- 
tion be  manifested  to  the  creditor,  it  must  be  so  applied; 

2.  If  no  such  application  be  then  made,  the  creditor,  within  a  reasonable 
time  after  such  j)erformance,  ma.y  apply  it  toward  the  extinction  of  any  obliga- 
tion, performance  of  which  was  due  to  him  from  the  debtor  at  the  time  of  such 
performance;  except  that  if  similar  obligations  were  due  to  him,  both  individu- 
ally and  as  a  trustee,  he  must,  unless  otherwise  directed  by  the  debtor,  apply 
the  performance  to  the  extinction  of  all  such  obligations  in  equal  proportion; 
and  an  application  once  made  by  the  creditor  cannot  be  rescinded  without  the 
consent  of  the  debtor; 

3.  If  neither  party  makes  such  application  within  the  time  prescribed  herein, 
the  performance  must  be  applied  to  the  extinction  of  obligations  in  the  following 
order;  and  if  there  be  more  than  one  obligation  of  a  particular  class,  to  the 
extinction  of  all  in  that  class  ratably: 

1.  Of  interest  due  at  the  time  of  the  performance; 

2.  Of  principal  due  at  that  time; 

3.  Of  the  obligation  earliest  iu  date  of  maturity; 

£32 


Title  IV,  Chap.  II.] 


OFFER  OR  PERFORMANCE. 


81487 


4.  Of  an  obligation  not  secured  by  a 

5.  Of  an  obligation  secured  by  a  lien 
approved  March  30,  1874;  Amendments 

"  This  subject  is  usually  treated  exclu- 
sively with  reteieiice  to  (laymeiits  of  money, 
wliicli  have,  indeed,  furnished  all  the  cases  upon 
which  decisions  have  been  reported.  Obvi- 
ously, however,  the  same  principles  are  equally 
applicable  to  all  classes  of  contracts;  as,  for 
example,  where  one  has  agreed,  at  various 
times,  to  deliver  parcels  of  merchandise  of  tiie 
eamj  species,  such  as  wheat,  flour,  fruit,"  etc.: 
Coininissiouers'  observation. 

Aoplicatiou    of    payments Subd.    1, 

Dsbtor'3  prefereuce. — The  debtor  may.  at  or 
before  the  time  of  payment,  direct  its  applica- 
tion, and  if  the  creditor  receives  the  money, 
he  is  bound  by  the  direction:  Wf7idt  v.  Rosx, 

33  Cal.  G50;  CardiiieU  v.  O'Dotvd,  43  Id.  586; 
Clarke  v.  Scoti,  45  Id.  8G;  Youmam  v.  I/eari', 

34  Mich.  401;  McDonell  v.  Montrjomery,  20 
Ala.  313;  WhUahir  v.  Oroover,  54  Ga.  174; 
C'hampenos  v.  Fort,  45  Miss.  355;  Stone  v.  Sey- 
mour, 15  Wend.  19;  Munger  on  Application  of 
Payments,  11.  Tliis  direction  may  be  made 
verbally,  even  where  the  payments  are  to 
be  anplied  to  one  of  two  promissory  notes: 
Clarke  v.  Scott,  45  Cal.  86.  If  after  having 
directed  the  application  of  the  payment  the 
debtor  takes  up  notes  to  which  the  creditor  had 
applied  tlie  payments  contrary  to  the  direc- 
tions, yet  will  such  acquiescence  bind  the 
debtor:'  Canline/l  v.  O'Doml,  43  Id.  586. 

Tlie  debtor  loses  tlie  right  to  make  tlie  ap- 
plic.atiiin  if  he  does  not  exercise  it  at  the  time 
of  payment:  Bank  of  Nnvburgh  v.  Bi'jler,  83  N, 
Y.  51,  G;],  G4;  Bell  v.  Raddiff,  32  Ark.  645,  665; 
Pr/mrone  v.  Aiulerson,  24  Pa.  St.  215. 

Subd.  2.  Applioation  by  creditor.— If  tlie 
debtor  omits  to  direct  to  which  indeljtedness 
the  payment  shall  be  applied,  the  creditor  may 
apply  it  to  any  debt  then  due:  Wemlt  v.  A'o.ss', 
33  Cal.  650;  Van  Norden  v.  Buckley,  5  Id.  233; 
JJaynes  v.  Waite,  14  Id.  447;  Bean  v.  Brown, 


lien  or  collateral  undertaking; 
or  collateral  undertaking,  [Amendment, 
1873^,  239;  took  effect  Julxj  1,  1874. 1 
54  N.  H.  395;  KiUorln  v.  Bacon,  57  Ga.  497l 
Crisler  v.  McCoy,  33  Miss.  445;  Kiiitj  v.  An- 
drews, 33  Ind.  429;  Ilouxird  v.  McCall,  21 
Gratt.  205;  S/imt/ue  v.  Jlazenwinkle,  53  111. 
419;  Munger  on  Application  of  Payments,  32. 
When  the  creditor  has  tjnce  made  the  applica- 
tion, he  cannot  change  it  without  the  consent  ol 
the  debtor:  Wendt  v.  A'ovs,  33  Cal.  650.  Thfl 
creditor  cannot  split  the  payment  and  apply  i* 
in  part  to  seveial  demands:  Aycrw  Haicknin,  19 
Vt.  20;   Ulackiiiaii  v,  Leonard,  15  La.  Ann.  59. 

The  institution  of  suit  on  one  of  two  claims 
evidences  his  design  to  apply  the  payment  to 
the  other:   /iay/.e.s  v.  Waile,  14  Cal.  447. 

When  the  creditor  holds  two  claims,  one  in- 
dividually, the  other  in  a  fiduciary  capacity, 
the  unajiplied  payment  must  be  applied  to  the 
claiLus  ratably:  Wetidt  v.  A'o.ss,  33  Cal.  650. 

Subd.  3.  Application  by  law.— Where 
neither  creditor  nor  debtor  has  made  applica- 
tion, the  law  makes  it  fur  them:  1.  To  the  ex- 
tinguishment of  interest,  and  then  the  principal: 
Backus  V.  Minor,  3  Cal.  231;  Peopfe  v.  Xew 
York,  r)  Cow.  .331;  //earn  v.  Cutherlh,  10  Tex. 
216;  Lrt.sA  v.  Ed'ierton,  13  Minn.  210;  Moore  v. 
Kijl  78  Pa.  St.  9(3;  Fallz  v.  Dav'.%  20Gratfc.  903; 
2.  To  the  extinguishment  of  obligations  earliest" 
in  maturity:  Smdh  v.  Lloyd,  11  Leigh,  512; 
Chirk  V.  Kniijhf,  31  Vt.  701;  Pickeriw/  v.  Day, 
2  Del.  Ch.  333;  Wortkley  v.  Enm-r>^on,  116" 
Mass.  374;  Lanndon  v.  Bowe'i,  46  Vt.  512; 
Cushiwi  V.  Wymaii,  44  Me.  121;  and,  3.  To 
an  obligation  not  secured  rather  than  to  one 
whicli  is:  Lonqdon  v.  Bowen,  46  Vt.  512:  J>e(tn 
V.  Brotcn,  54  N.  H.  395;  Pierce  v.  Sweet,  33  Pa. 
St.  151;  Maihi-wa  v.  Switzler,  40  Mo.  301;  Gtw- 
ton  V.  Barney,  1 1  Ohio  St.  506. 

For  a  valuable  collection  and  arrangement  of 
the  decisions  upon  this  topic,  see  Benjamin 
on  Sales,  4th  Am.  ed.,  sees.  1103  et  seq.,  auJ 
note. 


CHAPTER  n. 

OFFER  OF  PERFORMANCE, 

1485.    Obligation  extinguished  by  offer  of  performance. 

Sec.  1485.  An  obligation  is  extinguished  by  an  offer  of  performance,  mado 
in  conformity  to  the  rules  herein  prescribed,  and  with  intent  to  extinguish  tho 
obligation. 

Oiler  of  performance,  generally. — "This  so  clearly  settled,  and  this  chapter  may  have 
section  must  be  taken  in  connection  with  the  the  effect  to  modify  the  law  as  contained  in  the. 
succeeding  sections  of  this  chapter.  When  decisions  of  our  supreme  court:  See  Redding- 
thus  taken,  the  law  as  laid  down'  is  to  the  ef-  ton  v.  Chntte,  .34  Cal.  666;  Perre  v.  Ca>ilro,  14 
feet:  1.  That  a  dcl>t  payable  in  specific  articles  Id.  519;  and  compare  these  cases  with  Hayes 
may  lie  discharged  by  a  tender  of  those  articles  v.  JosepM,  26  Id.  535;  Lamott  v.  Butler,  IS  Id. 
"    ~"        "  32;  6'«;iac  V.  /l/;af/ie,  25  Id.  502;  and  see,  par- 

ticularly, Ketchum  V.  Crippen,  37  Id.  223, 
where  the  effect  of  a  tender  is  discussed,  but 
not  decided,  and  Perre  v.  Castro,  snp'U,  is 
commented  on  disapprovingly;  see  also  Oaven 
V.  Ihu/aii,  15  Id.  20S.  But  whether  the  rules 
as  laid  down  in  this  and  succeeding  sections 
have  or  have  not  heretofore  been  the  law  ia 
tills  state  wuh  respect  to  all  obligations  other 
than  for  the  payment  of  money,  they  certainly 
have  not  been  so  until  now  in  any  state  with 


at  the  proper  time  and  place;  2.  That  the  arti 
cles  must  be  set  apart  and  designated  so  as  to 
enable  the  creditor  to  distinguish  them  from 
others;  3.  The  tender  umst  be  of  all  the  arti- 
cles, and  not  a  tender  of  a  portion  only;  4. 
Tender  must  lie  made  by  the  debtor,  or  with 
his  assent;  5.  The  tender  must  be  to  the  cred- 
itor, or  in  his  absence,  then  as  authorized  by 
this  chapter;  6.  Tlie  property  so  tendered  vests 
in  the  ci-editor  and  is  at  his  risk.  ♦  »  * 
It  this  state  the  rule  has  not,  perhaps,  been 

283 


§§  ilS(J-i48d 


OBLIGATIONS  IN  GENERAL. 


[Div.  Ill,  Part  1, 


respect  id  pecuniary  obligations.  The  debtor 
lias  bad,  lu.Tutofore,  no  power  to  nd  himself  of 
tile  (lei.t  without  the  consent  of  the  creilitor: 
See  Dixon  v.  Clarke,  5  C.  B.  ;}G.)-;577;  \y<iUfcU 
\\  Alkhuoii,  3  Bin<:.  2!J0;  KorinijIU  v.  Cad;/, 
2.3  Bai-b.  400;  21  N.  Y.  343;  and  a  tender  iiaa  only 
operated  to  stop  interest:  JJiddeii  v.  Jor^laii, 
39  Cal.  Gl,  and  California   ca^es  cited  above. 


See  further,  on  this  subject,  sec.  l.WO,  y;o'<^.,  and 
note:"    From  the  note  of  the  commissioners. 

Tender  of  payment:  See  sees.  1500,  1504, 
ivfra. 

Tender  of  article  passes  title:  Sec.  1502, 
intra;   and  see  sic.  1504. 

Duties  oi  person  making  tender:  See  sec. 
1504. 


1486.    OJ'r.r  of  partial  performance. 

Sec.  148G.     Au  offer  of  partial  performance  is  of  no  effect. 

Tender  of  part  p^ym^^t  is  not  good: 
Wrl'ikt  V.  Bchre.iiJf,  39  N.  J.  L.  413;  Sauuuern 
V.  Froxl,  \(i  Am.  Dec.  304;  Trul^e  v.  Sta!e,  20 
Id.  4(j.'j.  Tender  of  the  principal  and  accrued 
interest  at  tlie  stipulated  rate  is  good:  Patter- 
son V.  Sharp,  41  Cal.  1.33. 

Tender  after  suit  brought  must  include  costs: 
£atoii  V.  IVellM,  22  Hun,  123;  Wrpjht  v.  lieh- 
revt-s  39  N.  J.  L.   413;  but  not  if  the  debtor 


knew  nothing  of  the  suit:  ITor^TcU  v.  Bremer, 
11  Me.  253.  See  as  to  this  last  proposition  a 
diiierent  view  maintained  in  Wri(jlU\.  Behrtii.i, 
Siipri. 

On  a  contract  for  tl)e  sale  of  an  interest  in  a 
partncrshi[>,  together  \vith  certain  realty,  a  ten- 
der of  a  bdl  ot  sale  for  the  ioniier  alone  is  not 
butiicient:  Plalh  v.  Kdziiiulier,  52  Cal.  491. 


1487.    Bij  whom  to  he  made. 

Sec.  1487.     An  offer  of  performance  must  be  made  by  the  debtor,  or  by  some 
person  on  bis  bebalf  and  with  his  assent. 


Tender,  by  •whom  may  be  made. — A  per- 
Bon  having  no  interest  in  the  transaction  can- 
not make  a  tender  without  authority,  or  the 
consent  of  the  creditor,  so  as  to  be  binding  in 
the  latter:  Mahler  v.  N^ewbancr,  32  Cal.  IGS. 
Whether  the  mere  fact  that  the  creditor  knew 
on  whose  behalf  the  tender  was  made  would 
alter  the  case,  see  same  decision. 


As  a  general  ride,  the  tender  must  be  made 
by  the  debtor  or  by  his  legal  represKntat:ve: 
McL)oii'/a/d  v.  Donpherli/,  1 1  Ga.  570.  See 
the  contrary  rule  in  Louisiana:  Stalf  v.  IHUbnry, 
29  La.  Ann.  787.  St-e  the  elTect  of  payment  hy 
a  stranger  discussed  in  Neclij  v.  Jones,  10  W. 
Va.  C25. 


1483.    Offer  of  performance,  to  whom,  and  where  to  he  made. 

Sec.  1488.  An  offer  of  performance  must  be  made  to  the  creditor,  or  to  any 
one  of  two  or  more  joint  creditors,  or  to  a  person  authorized  by  one  or  more  of 
them  to  receive  or  collect  what  is  due  under  the  oblig'ation,  if  such  creditor  or 
authorized  person  is  present  at  the  place  where  the  offer  may  be  made;  and  if 
not,  wherever  the  creditor  may  be  found.  [Amendment,  approved  Marcli  30, 
1874;  Amendments  1873-4,  240;  look  effect  July  1,  1874.] 

See  next  section. 

1489.  Where  offer  may  he  made. 

Sec  1489.  In  the  absence  of  an  express  provision  to  the  contrary,  an  offer 
of  performance  may  be  made,  at  the  option  of  the  debtor: 

1.  At  any  place  appointed  by  the  creditor;  or, 

2.  Wherever  the  person  to  whom  the  offer  ought  to  be  made  can  be  found;  or, 

3.  If  such  person  cannot,  with  reasonable  diligence,  be  found  within  this 
state,  and  within  a  reasonable  distance  from  his  residence  or  place  of  business, 
or  if  he  evades  the  debtor,  then  at  his  residence  or  place  of  business,  if  the 
same  can,  with  reasonable  diligence,  be  found  within  the  state;  or, 

4.  If  this  cannot  be  done,  then  at  any  place  within  this  state; 
Delivery  of  personalty:    See  pofit,   sees, 


'17.''3  et  seq. 

"Where  the  time  and  place  of  perform- 
•  «n'je  are  tixed  by  tiie  terms  of  the  contract,  or 
\)y  subsequent  agreement,  the  creditor  must 
jnake  his  oli'er  in  accordance  therewith,  and 
without  demand:  Wi<j(jin  v.  l\'i(/f/in,  43  N.  H. 
tCl,  5(i7;  'LohdAl  v.  I/o/ikim,  7  Cow.  51(3; 
■  iiooilwin  V.  J/c'hrook,  4  Wend.  380;  /Ji'aii  v. 
Iji.iipxon,  KrMe.  49;  While  v.  Perloy,  15  Id.  110; 
SriUh  V.  LootniH,  7  Conn.  110. 


The  provision  here  made  in  the  third  subdi- 
vision, for  a  tender  at  the  residence  or  place  of 
business  of  a  creditor  who  cinnot  bi;  found 
"  within  a  reasonable  distance  from  lii«  loi- 
denee  or  place  of  business,"  is  said  by  the  ef>de 
commissioners  to  be  "perhaps  nev.-,"  eiting 
Snulh  V.  Smith,  25  Wend.  405.  This  section  H 
also  said  by  the  commissioners  to  provide  for 
tliat  class  of  persons  who  do  business  within, 
but  reside  witliout,  the  state. 


2S4 


Title  IV,  Chap.  II.] 


OFFER  OF  PERFORMANCE. 


§§  1490-1493 


1490.  When  ofet  must  be  made. 

Sec.  1490.  "Where  an  obligation  fixes  a  time  for  its  performance,  an  offer  of 
performance  must  be  made  at  tbat  time  within  reasonable  hours,  and  not  before 
nor  afterwards. 


day  at  which  a  tender  generally  may  be  made, 
see  J/nll  v.  ]V/uUi>-r,  10  11.  I.  5:50.  534.  The 
sufficiency  of  a  tender  of  a  sum  of  money  after 
sundown  was  admitted  in  McClarty  v.  Go/cey. 
31  Iowa,  505. 


Time  of  perf orniance. — The  ofTer  should  be 
made  at  a  rea.sonable  hour:  Cronivgerv.  Vrodcer, 
62  N.  y.  151,  where  a  tender  of  wool  after  ten 
o'clock  at  night  was  held  bad.  For  a  review 
of  the  decisions  bearing  upon  the  hour  of  the 

1491.   Same. 

Sec.  1491.  "Where  an  obligation  does  not  fix  the  time  for  its  performance, 
an  offer  of  perfonnance  irnxj  be  made  at  any  time  before  the  debtor,  upon  a 
reasonable  demand,  has  refused  to  perform. 


"Wliere  no  time  is  limited,  the  party  has 
until  a  demand  of  performance  is  made:  Hits- 
eellv.  Ornuibee,  lOVt.  274;  Story  on  Cont.  1411; 
Vance  v.  liloomer,  20  Wend.  19(i;  Rice  v. 
Churchill,  2  Uenio,  145. 

In  Brewian  v.  Ford,  46  Cal.  7,  on  a  contract 
for  the  conveyance  of  land,  the  court  .said  that 
the  law  would  imply  that  where  no  time  of 


performance  was  lixed,  the  contract  was  to  bo 
performed  immediately,  or,  at  most,  within  a 
reasonable  time. 

That  tile  time  of  performance  may  be.  ex» 
tended  \>y  parol,  see  Luckhirt  v.  Oijdeiit,  30 
Cal.  547;  Wa>i;je7ihri7n  v.  Graham,  3'J  Idi  169. 

See  po.^t,  sec.   I75G,  as  to  giving  r^tice  of. 
time  of  delivery  ou  sales  of  personaiiy. 


1492.    Compensation  after  delay  in  performance. 

Sec.  1492.  "Where  delay  in  performance  is  capable  of  exact  and  ; entire  com- 
pensation, and  time  has  not  been  expressly  declared  to  be  of  the  essence  of  the- 
obligation,  an  offer  of  performance,  accompanied  with  an  offer  of  such  com- 
pensation, may  be  made  at  any  time  after  it  is  due,  but  without  prejudice  to  any 
rights  acquired  by  the  creditor,  or  by  any  other  person,  in  tlie-mean  time. 

Object  of  section. — " 'Where  delay  in  per-     it  clearly  ought  to  be  allowed  before  any  liti- 


formaiice  is  capalde  of  exact  and  entire  com- 
pensation, and  time  has  not  been  expressly 
declared  to  he  of  the  essence  of  the  obliga 
tion.'  This  clause  obviates  the  difficulties 
which  constantly  arise  in  determining  whether 
time  is  of  tlie  essence  of  a  contract  or  not. 
The  provision  that  *an  offer  of  performance, 
accompanied  with  an  offer  of  such  compensa- 
tion, may  be  made  at  any  time  after  it  is  due,' 
is  also  new.  But  as  such  tender  is  permitted 
by  statute  after  an  action  has  been  commenced, 


gation  is  had,  to  stop  ijifcerest  and  avoid  costs. 
Undoubtedly  it  is  not  allowed  by  the  connuoa 
law:  Poole  v.  Tumhrid'je,  2,Mee.  &  \V.  223; 
Hume  V.  Peploe,  8.  East,  IGS;  but  the  judges 
acknowledged  the  haidship  of  the  law  on  this 
point.  In  Connecticut  this  rule  has  become 
law  through  usage:  Tracy  v.  Strong,  2  Conn. 
65!):"  Commissioners'  note. 

Time  aa  tlie^  essence  of  a  contract:  Se» 
Ponieroy's  Specif.  l\rf.  Cont.,  sec.  370,  for  a. 
consideration  of  this  subject. 


1493.  Offer  to  be  made  in  good  faith. 

Sec.  1493.     An  offer  of  performance  must  "be  made  in  good  faith,  and  in  such 
manner  as  is  most  likely,  under  the  circumstances,  to  benefit  the  creditor. 
Must  be  in  good  faith:  Fisk  v.  II olden,  17  Tex.  408. 

1494.  Conditional  offer. 

Sec.  1494.     An  offer  of  performance  must  be  free  from  any  conditions  which 
the  creditor  is  not  bound,  on  his  part,  to  perform. 


Tender  must  be  unconditional:  HrooUyn 
Bank  V.  Deijraiiv},  23  Wend.  342;  Wood  v. 
Hitclicoctc,  20  Id.  47;  Eddy  v.  0' 1 1  arc,  14  Id. 
221;  A'o.se  v.  Duncan,  49"liid.  2r.9;  Flake  v. 
Nuse,  61  'J'ex.  98;  Tamp/dn-i  v.  Bade,  11  Neb. 
147. 

If  the  creditor  accepts  the  conditional  tender, 
he  is  presumed  to  have  acquiesced  in  the  con- 


ditions:  Hall  V.  ITohlen,  116  Mass.  172,  176; 
Adams  v.  Helm,  55  Mo.  4GS,  471. 

Tlie  f>frer  of  performance  upon  condition  of 
the  surrender  of  a  receipt  is  valid:  See  sec.  1499, 
iiifr'i;  Storey  v.  Krewsoit,  55  Ind.  397;  or  upoa. 
the  perfonuoiice  uf  a  uuuditiou,  precedent:  Sec. 
1498. 


1495.    Ability  and  willingness  essential. 

Sec.  1495.     An  offer  of  performance  is  of  no  effect  if  the  person  making  it  ia 
not  able  and  willing  to  perform  according  to  the  offer. 

So  also  Englander  v.  Rogers,  41  Cal.  420. 

285 


|§  1490-1503  OBLIGATIONS  IN  GENERAL.  Prv.  HI,  Paet  I, 

1496.  Production  of  (king  to  be  delivered  not  necessary. 

Sec.  149G.    The  thing  to  be  delivered,  if  any,  need  not  in  any  case  be  actually 
produced  upon  an  offer  of  performance  unless  the  offer  is  accepted. 
See  Englander  v.  Sogers,  41  Cal.  420. 

1497.  Thing  offered  to  he  kept  separate. 

Sec.  1497.  A  thing,  when  offered  by  way  of  performance,  must  not  be  mixed 
with  other  things  from  which  it  cannot  be  separated  immediately  and  without 
difficulty. 

Vendor  of  personalty  must  put  In  coudi-  Crocker,  62  N.  Y.  151;  Chirli  v.  lidlxr,  11  Met. 

tlon  for  delivery:  Sec.  175;i,  fioxt.  186;  Dnocav.  Lorkliart,  1  Tex.  535;  Leballisler 

S3paration  of  articles. — The  articles  ten-  v.  Xash,  24  Mo.  316;  GUman  v.  Moore,  14  Vt. 

dereil  must  be  separated  and  set  a[)art  from  45;  Bates  v.  CkurchiU,  32  Me.  31. 
other  articles  of  the  same  kind:  Croninger  v. 

1498.  Performance  of  condition  precedent. 

Sec.  1498.  When  a  debtor  is  entitled  to  the  performance  of  a  condition  pre- 
cedent to  or  concurrent  with  performance  on  his  part,  he  may  make  his  offer 
to  depend  upon  the  due  performance  of  such  condition. 

Tender   upon   condition,   on  wliich    the        Conditions  precedent:  See  antet  sec  1439, 
debtor  has  a  right  to  insist,  does  not  vitiate     and  note, 
the  tender:  Wheelock  v.  Tanner,  39  N.  Y.  4S1. 

.1499.   Written  receipts. 

Sec.  1499.     A  debtor  has  a  right  to  require  from  his  creditor  a  written  receipt 

/for  any  property  delivered  in  performance  of  his  obligation. 

So  also  Code  Civ.  Proc.,  sec.  2075.  Wood  v.  Tllf.chcock,  20  Wend.  47;  Sanfnrd  v. 

"This  is  a  new  provision:"  Commissioners'  Bidkley,  30  Conn.  344;  Thayer  y.  Brarkett,  12 

•note.  Mass.  450;  IloUon  v.  Drown,  18  Vt.  224. 

Demanding  a  receipt  as  a  condition  of  per-         '1  he   rule   of    the    section   is   recognized    in 

forniance  vitiates  the  tender,  as  a  general  rule:  Storey  v.  Krewson,  55  Ind.  307. 

.1500,    Extinction  of  pecuniary  obligation. 

Sec  1500.     An  obligation  for  the  payment  of  money  is  extinguished  by  a  due 

offer  of  payment,  if  the  amount  is  immediately  deposited  in  the  name  of  the 

creditor,  in  some  bank  of  deposit  within  this  state  of  good  repute,  and  notice 

thereof  is  given  to  the  creditor. 

"This  is  contrary  to  the  former  la'wupon  been  the  law,  in  substance,  in  Louisiana  and 

this  subject,   whicli  made  a  tendt-r  operative  France.     It  would  seem  to  be  all  that  creditors 

only  so  far  as  to  stop  interest.     The  same  rule  can  reasonably  ask.     Tlie  common  law  compels 

has  been  applied  to  obligations  for  the  ilelivery  a  debtor  to  keei>  the  money  whicli  he  owes  at 

of  deeds  and  other  instruments:  Z^'-oo^-'t//* /ia/i^  his  own  risk.     This  is  oltfu  an  inconvpuience, 

y.  Deijraiiw,  23  Wend.  312;  but  this  has  been  and  soinetiuies  a  positive  loss  to  him:  See  note 

-wisely  overruled:  Des  Arta  y.  Ij('<i'jHt,  16N.Y.  to  sec.  1485:"  Commissioners' note. 
682.     The  provisions  of  this  section  have  long         Tender  stopping  interest:  See  sec.  1504. 

1501.  Objections  to  mode  of  offer. 

Sec.  1501.  All  objections  to  the  mode  of  an  offer  of  performance,  which  the 
creditor  has  an  opportunity  to  state  at  the  time  to  the  person  making  the  offer, 
and  which  could  be  then  obviated  by  him,  are  waived  by  the  creditor  if  not 
then  stated. 

Similar  provision,  although  more  specific  in  its  requirements:  Code  Civ.  Proc.,  sec.  2076. 

1502.  Title  to  thuig  offered. 

Sec.  1502.  The  title  to  a  thing  duly  offered  in  performance  of  an  obligation 
■passes  to  the  creditor,  if  the  debtor  at  the  time  signifies  his  intention  to  that 
effect. 

1503.  Custody  of  thing  offered. 

Seo.  1503.  The  person  offering  a  thing,  other  than  money,  by  way  of  per- 
formance, must,  if  he  means  to  treat  it  as  belonging  to  the  creditor,  retain  it  as 

280 


Title  IV,  Chap.  HI.]    PREVENTION  OF  PERFORMxiNCE  OR  OFFER.         §§  1504-1511 

a  depositary  f <  r  hire,  until  the  creditor  accepts  it,  or  until  he  has  given  reason- 
able notice  to  the  creditor  that  he  will  retain  it  no  lunger,  and  if  with  reason- 
able diligence  he  can  find  a  suitable  depositaiy  therefor,  until  he  has  deposited 
it  with  such  person. 

Depositary  for  hire:  See  sec.  1852,  post. 

1504.  Effect  of  off er  on  acveHsories  of  obUgafion. 

Slc.  I'^O-i.  An  offer  of  payment  or  other  performance,  duly  made,  though  the 
title  to  the  thing  offered  be  not  transferred  to  the  creditor,  stops  the  running  of 
interest  on  the  obligation,  and  has  the  same  effect  upon  all  ita  incidents  as  a 
performance  thereof. 

Tender  stops  nuiuing  of  interest:  Hid'  Tender  bars  costs:  Code  Civ.   Proc,  sec. 

den  v.  Jordan,  39  Cat.  CI;  Pa/lerfon  v.  Sharp,  lO^W. 

411(1.  I3.{;  //immelmmmv.  Fitz/iutriric,  i>0  id.  Tender,   •whether    discharges    Ifen:    See 

CjO;  l\or!ri<]hl  y.  Cwlij.  21   N.    Y.  3iJG;    Wood-  Pierre  v.  Caxiro,  14  Cal.  530;  U immtlmntin  v. 

rvffv.  Trapnall,  12  Ark.  040;  Ilayfs  v.  Thorn,  FUzpa'rirJ:,  50  M.  050. 

28  N.  II.  380.     Tender  kept  good  entitles  tlie  Requisites  of  a  valid  tender:  See  an  arti- 

pluiutiffto  judgment  for  the  amount  tendered,  cle  by  J.  H.  Lind,  in  17  Am.  Law  Reg.  745. 

and    the   defendant   judgment   for   his  costs:  Effect  of  offer  in  ■writing  is  the  same  as 

C'urin-  V.  AfiadiP,  25  (_'al.  502.  tender:  See  Code  Civ.  Proc,  sec.  2074. 

Tender  transfers  title:  See  sec.  1502,  supra. 

1505.  Creditor's  retention  of  thing  which  he  refuses  to  accept. 

Skc.  1o05.  If  anything  is  given  to  a  creditor  by  way  of  performance  whicli 
he  refuses  to  accept  as  such,  he  is  not  bound  to  return  it  without  demand;  but 
if  he  retains  it,  he  is  a  gratuitous  depositary  thereof. 

Gratultoua  depositary:  See  sees.  1844,  post,  et  seq. 


CHAPTEU  m. 

PREVENTION  OF  PERFORMANCE  OR  OFFER, 

1511.   What  excuses  performance,  etc. 

Skc.  1511.  The  want  of  performance  of  an  obligation,  or  of  an  offer  of  per- 
formance, in  whole  or  in  part,  or  any  delay  therein,  is  excused  by  the  following 
causes,  to  the  extent  to  which  they  operate: 

1.  When  such  performance  or  offer  is  prevented  or  delayed  by  the  act  of  the 
creditor,  or  by  the  operation  of  law,  even  though  there  may  have  been  a  stijDU- 
lation  that  this  shall  not  be  an  excuse; 

2.  "When  it  is  prevented  or  delayed  by  an  irresistible,  superhuman  cause,  or 
by  the  act  of  public  enemies  of  this  state  or  of  the  United  States,  unless  the 
parties  have  expressly  agreed  to  the  contrary;  or, 

3.  When  the  debtor  is  induced  not  to  make  it,  by  any  act  of  the  creditor 
intended  or  naturally  tending  to  have  that  effect,  done  at  or  before  the  time  at 
which  such  performance  or  offer  may  be  made,  and  not  rescinded  before  that 
time. 

Want    of    performance    escoused. — Pre-  •would  have  received  upon  a  fall  performance: 

venlion    of  performance    by   one  ]>ar(y   seems  Cox  v.  McLawjhlin,  52  Id.  £91. 

to    be    regarded    by    the    code    in    snine    in-  Prevention  by  one  party  excuses  performance 

Btances  as  equivalent  to  performance  as  to  the  by  the  other:   Ket'hum  v.  ZeilsdorJ',  2G  Wis. 

otlier;    See    sec.    1512,    infrt.      In     Wolf   v.  blG;  United  States  v.  Peck,  \02  \J.  H.  Gi;  Kinga- 

Marsh,  54  Cal.  228,  the  debtor  by  his  act  made  leij  v.  Brooklyn,  78  N.  Y.  200,  212;  I/awley  v. 

it  impossible  for  the  contingency   to  happen  .5/7)i7/(,45  Ind.  183,202;  Di'ld'-n  v.Woodmansfe, 

njx)u    which    his   promise    to    pay   depcndeil,  81  111.  25;  2  Benjamin  on  Sales,  5th  Am.  ed.. 

There  his  promise  was  maile  absolute.     Where  743,  in  note.     Want  of  performance  whicli  was 

a  contractor  agreed  to  do  work  under  a  contract  brought  about  by  the  act  of  the  party  enti- 

providing  for  the  payment  of  money  to  him  in  tied  to  performance  cannot  be  complained  of: 

installments,  the  mere  failure  to  pay  these  in-  IIou;ih/on  v.  .Stele,  58  Cal.  421;    Tucker  v.  Ed' 

■tallments  does  not  entitle  the  contractor  to  tc^rn/.s,  2  West  Coast  liep.  400  (Col.), 

abandon  the  work  and  sue  for  the  benefits  he  Subd.    2.      See  the  maxiin,  section    3526, 

287 


81 1512-lSa  OBLIGATIONS  IN  GENERAL.  [Drv.  IH,  1'akt  I, 

"  No  man  is  responsible  for  that  which  no  man  God:  PolacJc  v,  Pioche,  35  Cal.  416.     See  th« 

can  control."  meaning  of  this  expression  discussed  in  Whart, 

Act  of  God. — Those  acta  are  to  be  regarded  on  Neg.,  sees.  114,  553;  1  Whart.  ou  Contracts, 

in  a  legal  sense  as  the  acts  of  God  which  do  not  sees.  303  et  seq. 

happen  through  human  agency,  snch  as  storms,  Pul die  enemy. — Who  is,  and  what  interfer- 

liglitiiings,  tempests.     The  elements   are   the  ence  will  excuse  performance:  See  1  Whart.  on 

means  through  which  God  acts,  and  "damages  Contracts,  sees.  319  et  seq. 
by  the  elements  "  are  damages  by  the  act  of 

1512.  Performance  when  prevented  by  creditor. 

Sec.  1512.  If  the  performance  of  an  obligation  be  prevented  by  tbe  creditor, 
the  debtor  is  entitled  to  all  the  benefits  which  he  would  have  obtained  if  it  had 
been  performed  by  both  parties.  [Amendment,  approved  March  30, 1874;  Am,end' 
merits  1873-4,  240;  took  effect  July  1,  1874.] 

Prevention  by  creditor:  See  supra,  note  to  sec.  1511. 

1513.  Dissuasion  by  creditor. 

Section  151.3  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  240;  took 
eflfect  July  1,  1874. 

1514.  Same. 

Sec.  1514.  If  the  performance  of  an  obligation  is  prevented  by  any  cause 
excusing  performance,  other  than  the  act  of  the  creditor,  the  debtor  is  entitled 
to  a  ratable  proportion  of  the  consideration  to  which  he  would  have  been  entitled 
upon  full  performance,  according  to  the  benefit  which  the  creditor  receives  from 
the  actual  performance. 

1515.  Effect  of  refusal  to  accept  performance  before  q^er. 

Sec.  1515.  A  refusal  by  a  creditor  to  accept  performance,  made  before  an 
offer  thereof,  is  equivalent  to  an  offer  and  refusal,  unless,  before  performance  ia 
actually  due,  he  gives  notice  to  the  debtor  of  his  willingness  to  accept  it. 

See  Mescrole  v.  Archer,  3  Bosw.  376-382;  Refusal  to  perform  entitles  the  other  party 
North  V.  Pepper,  21  Wend.  C38;  Travers  v.  to  enforce  the  obligation  without  performanca 
Ualstead,  23  Id.  06.  on  his  part:  See  sec.  1440,  ante. 


CHAPTER  IV. 

ACCORD  AND  SATISFACTION. 
1521.   Accord,  what. 

Sec.  1521.  An  accord  is  an  agreement  to  accept,  in  extinction  of  an  obliga- 
tion, something  different  from  or  less  than  that  to  which  the  person  agreeing 
to  accept  is  entitled.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  240;  took  effect  July  1,  1874.] 

Accord  emd  satisfaction.— Formerly  part  hard  v.  Lirjhte,  13  Abb.  Pr.   101;  Ifarri'^on  v. 

payment  of  a  money  demand  without  a  release  Wilcox,  2  Johns.  448;  Dcderick  v.  Leman,  9  Id. 

under  seal  did  not  work  a  release.     This  con-  333;  Scoll  v.  I/nnt,   2  How.  Pr.   58;  Down  v. 

dition  of    the  law  and   its   present  aspect  is  Hatcher,     10    Ad.    &    El.     121;     T/iomnn    v. 

thus  stated  in  the  commissioners'  note  to  sec.  y/^a^Aorj;,  2  Barn.  &  Cress.  477;  Fitcliw.  Sutton, 

15J4,  post:  5  East,  2:)0;  Cumber  v.  Wane,  1  Stra.  426.    This 

"  Before  the  passage  of  the  act  of  1863  (see  rule  of  the  common  law  was  not  founded  upoa 

Stats.    1868,    31),   the    rule  of    law  was    tliat  natural  justice,  nor  can  it  be  supported  upon 

payment  of   an   amount   less   than  that  of  a  any  other  than  technical  grounds.     An  agree- 

liquidated  debt  then  payable  was  not  a  satis-  ment  to  accept  a  barrel  of  flour  in  satisfaction 

faction  thereof,  though  accepted  as  such:  Dp-  of  a  debt  of  one  thousand  dollars  was  valid, 

land  V.  Ilcl't,  27  Csxl.  Gl\;  P/emmiv.  McVahlU,  and  if  the  flour  was  delivered  tbe  debt  was 

21   Id.  122;  but  see  also  (ra?'a«  v.  Annan,  L.  satisfied.     So  a  relea&e  under  seal,  without  any 

<f;  Co..  2  Id.  494.     Such  also  is  yet  the  settled  consideration,  extinguished  the  debt.     But  an 

law  in  many  of  the  states:  Palmeri^ton  v.  //«c-  agreement  to  accept  nine  hundred  and  ninety- 

ford,  4  Donio,  163;  Neary  v.  Do'<twi-k,  2  Hilt,  nhie   dollars   in  satisfaction   of  the   debt   was 

514;  soe  Evrmx  V.  Powii,  1  Exch,  601;    IVU/dii-  unavailing,  and  the  obligation  to  pay  the  other 

son   V.    /Ji/ers.    1    Ad.    &    El.    100;    Brjokt   v.  dollar  was  unimpaired.     In  Pennsylvania  th» 

White,  3  Met,  280;  Ooodnou)  v.  Smith,  IS  Pick,  rule  has  been  disavowed  for  over  thirty  years 

414;  Smith  v.  Brown,  3  Hawks,  580;   Von  Oer-  past:  AliUiJcen  v.  Brown,  1  Uawle,  391.     It  has 

288 


Title  IV,  Chap.  V.] 


NOVATION. 


§§  1522-1530 


charges  the  debt  as  to  all:  Barrett  v.  li.  Ii.,4c% 
N.  Y.  G2S;  Evans  v.  Pirjg,  3  Coldw.  395.  But 
see  sec.  1543,  post. 

Substituting  a  new  obligation  for  the  existing 
one  is  a  novation:  See  post,  sec.  1530  et  seq. 

Parol  evidence  is  admissible  in  support  of  a 
defense  to  an  action  on  a  promissory  note  to 
prove  an  executed  jfarol  agreement  in  the 
nature  of  an  accord  ami  satisfaction:  Trcadweli 
V.  } iimmdmann,  50  Cal.  9. 

Compronjises:  See  -post,  sec.  1G05,  in  note. 

Payment  by  note:  See  the  cases  collated 
in  tlic  note  to  2  Benjamin  on  Sales,  4th  Am. 
ed.,  9o9  et  seq. 

Order  ou  tliird  person,  effect  of:  See  sec. 
1533,  post. 


been  abolished  in  Maine  by  statute:  Laws  1831, 
c.  213.  The  section  given  above  is  substan- 
tially the  law  of  1SG7-8." 

Must  b3  esecuted. — Accord  without  satis- 
faction is  no  bar  to  an  action;  to  make  the  plea 
of  accord  a  good  plea,  it  must  show  that  the 
accord  lias  hejn  executed:  Simmons  v.  Hamil- 
ton, 5G  Cal.  493;  Noe  v.  Clirlstij,  51  N.  Y.  279; 
Goo  I  rich  V.  Stanley,  24  Conn.  013;  Cus/iinrj  v. 
Wi/rnan,  4t  Me.  121;  Smith's  Lead.  Cas.,  7th 
Ain.  ed.,  GJl;  Yoiaig  v.  Fivjett,  1  Lea,  444. 
'  The  iact  that  the  creditor  at  first  objected 
ma'.ces  no  (liiTcrence,  if  he  finally  accepts  the  set- 
tlement: Roach  V.  Oilmer,  3West  Coast  Rep.  258 
(Utah). 

•  Accord  and  satisfaction  b}'  one  of  several 
joint  debtors  with  the  common  creditor  dis- 

1522.  Effect  of  accord. 

Sec.  1522.     Tbougli  the  parties  to  an  accord  are  bound  to  execute  it,  yet  it 
does  not  extinguisli  the  obligation  until  it  is  fully  executed. 
Until  satisfaction,  the   accord   is   a  mere    man,  44  Me.  121;   Wfiite  v.  Gray,  63  Id.  579; 

negotiation  pending,  from  which  the  creditor     Simmow^  v.  C'la7'k,5ii  111.  OG;  Oocrton  v.  Connor, 
may  withdraw  his  acceptance:  Cashing  v.   Wy-    50  Tex.  113. 

1523.  Satisfaction,  what. 

Sec.  1523.     Acceptance,  by  the  creditor,  of  the  consideration  of  an  accord 

extinguishes  the  obligation,  and  is  called  satiof action. 

See  Kiqira,  note  to  sec.  1521;  see  next  action. 
Withdravyins  acceptance:  See  sec.  1522,  and  note. 

1524.  Pari  performance  in  satisfaction. 

Sec.  1524.  Part  performance  of  an  obligation,  either  before  or  after  a  breach 
thereof,  when  expressly  accepted  by  the  creditor  in  writing,  in  satisfaction,  or 
rendered  in  pursuance  of  an  agreement  in  writing,  for  that  purpose,  though, 
without  any  new  consideration,  extinguishes  the  obligation.  \Amendmeiit,  ap- 
proved  March  30,  1874;  Amendments  1873-4,  241;  took  effect  July  1,  1874.  | 

Part  performance  as  an  extinguishment  of  it  has  been  expressly  accepted  by  the  creditor, 

an  obligation:  See  «(/(?'a,  note  to  sec.  1521.  or  he  lias  agreed   in    writing  to  accept   it   ia 

An  unssecuted  agreement  does  not  ex-  satisfaction    of    the    obligation:    Simvw?i8   v. 

tinguish  the  obligation  of  joint  debtors,  unless  ilamilton,  50  Cal.  493,  495. 


CHAPTER  V. 

NOVATION. 
1530.   Novation,  what. 

Sec.  1530.     Novation  is  the  substitution  of  a  new  obligation  for  an  existing* 
one. 
Novation:  Section  cited  generally  in  Canney    liability,  the  novation   is   complete:   Wch-h  v. 


V.  S.  r.  ( :  n.  /.•.,  G3  Cal.  502.  Tlie  promise  to 
pay  the  deltt  of  one's  creditor  in  consideration 
of  the  release  of  such  creditor  from  his  indebt- 
edness is  not  a  promise  within  the  statute  of 
frauds  ie(|uiicd  to  be  in  writing:  Wcl'h  v. 
Kenny,  49  Id.  49.  Tiie  release  of  one's  debtor 
in  consideration  of  another's  assuming  tlie  obli- 
gation is  a  buliicicnt  consideration  to  support  tiie 
latter's  promi.sc:  Jjnrringer  v.   ll'art/en,  12  Id. 


Kenny,  49  I<1.  49;  Ca'vo  v.  Davies,  73  N.  Y. 
211;  Dhigddein  v.  A*.  /?.,  37  Id.  575;  Shaffer  v. 
McKa/ina,  24  Kan.  22;  Rogers  v.  Go-inell,  53 
iMo.  5S9. 

Whether  it  is  essential  that  the  substituted 
creditor  shall  at  the  lime  of  the  agrccnient  to 
substitute  agree  to  accept  the  new  debtor  and 
discliarge  the  original  dc1)tor,  or  wlictlier  ids 
subsequent  acceptance  will   bo  sutiicient,  and' 


311.     So  taking  a  note  and  mortgage  from  one     maybe  evidenced  by  liis  instituting  proceed 


of  two  j<iint  and  several  debtors,  in  discliarge 
of  the  original  indebtedness,  ojicrates  as  a  nova- 
tion: Farmers'  Nat.  B'k  v.  Sluvcr,  58  Id.  3S7. 
The  most  common  form  of  novation  is  where  a 
pureha.ser,  as  part  consideration,  agrees  to  pay 
BOine  debt  wliich  tlie  seller  owes.  If  all  tlie 
parties  consent,  and  the  seller  is  released  from 

Civ.  CoDB— 19  21 


liiist  tlie  new  debtor,  see  McLaren  v. 
//ntchnison,  22  Cal.  187;  Lewis  v.  Corlllaw',  21 
Id.  178,  adopting  the  latter  view,  and  comment- 
ing upon  McLaren  v.  Hutchinson,  18  Id.  SO; 
see  also  sec.  1532,  infra. 

In  case  of  the  substitution  of  a  new  debtor 
the  creditor's  action  is  properly  brought  in  hia 


S§  1531-1543  OBLIGATIONS  IN  GENERAL.  [Div.  Ill,  Part  L 

own  name:   Wirjrjins  v.  McDonald,  18  Cal.  12S.  release,  that   the  plaintiff  prove  the  release: 

It  is  essential  iii  an  action  against  one  who  liad  Gy'e  v.  Slioenhar,  23  Id.  538. 

promised  to  pay  the  amount  of  another's  debt  Ri^ht  to  sue  on  contract  made  for  one'a 

to  the  plaintiff,  in  consideration  of  that  other's  benefit:  See  post,  sec.  1559. 

1531.  Modes  of  novation. 

Sec.  1531.     Novation  is  made: 

1.  By  the  substitution  of  a  new  obligation  between  the  same  parties,  with 
intent  to  extinguish  the  old  obligation; 

2.  Ey  the  substitution  of  a  new  debtor  in  place  of  the  old  one,  with  intent 
to  release  the  latter;  or, 

3.  By  the  substitution  of  a  new  creditor  in  place  of  the  old  one,  with  intent 
to  transfer  the  rights  of  the  latter  to  the  former. 

1532.  Novation  a  contract. 

Sec.  1532.  Novation  is  made  by  contract,  and  is  subject  to  all  the  rules  con- 
cerning contracts  in  general. 

11533.    Novation,  right  to  rei^cind  contract  of. 

Sec.  1533.  AVhen  the  obligation  of  a  third  person,  or  an  order  upon  such 
iperson,  is  accepted  in  satisfaction,  the  creditor  may  rescind  such  acceptance 
;if  the  debtor  prevents  such  person  from  complying  with  the  order,  or  from 
i fulfilling  the  obligation;  or  if,  at  the  time  the  obligation  or  order  is  received, 
!  such  :p arson  is  insolvent,  and  this  fact  is  unknown  to  the  creditor;  or  if,  before 
the  creditor  can  with  reasonable  diligence  present  the  order  to  the  person  upon 
-whom  it  is  given,  he  becomes  insolvent.  [Amendment,  approved  March  30, 
1874;  AmendmenlH  1873-4,  241;  took  effect  July  1,  1874.] 

Payment  by  note:  See  2  Benjamin  on  Sales,  the  latter  section  it  is  stated  that  the  acceptance 
4th  Am.  cd.,  939  etseq.,  note.  of  such   paper  operates  only  as  a  conditional 

Ne2;otiable  paper  as  satisfaction:    See,     novation,  as  a  general  rule. 
,»generully,  2  Whart.  onCont.,  sees.  853,  S57;  in 

CHAPTER  VI. 

RELEASE. 
^1541.    Obligation  extinguished  by  release. 

Sec  1541.  An  obligation  is  extinguished  by  a  release  therefrom  given  to  the 
'  debtor  by  the  creditor,  upon  a  new  consideration,  or  in  writing,  with  or  without 
:  new  consideration. 

Writing  imports  a  consideration:    Sec.     assigned  by  him  to  the  parties  -whose  property 

1G14.  I'Ost.  he  lias  wrongfiiUy  sold,  and  who  in  considera- 

Non  payment   of  the   consideration   for     tion  of  the  assignment  release  the  sheriff.    The 

■the  lelcase  does  not  affect  the  iii.stniment  as  a     indemnity  stdl  liolds  good:  J/c/Je^/t  v.  ilic/w^yrf, 

valid  release:  Pa!<je  v.  <rXeal,  12  Cal.  4S3.  57  Cal.  49. 

Release.— The  above  section  dues  nt)t  apply  As  to  the  necessity  of  delivering  a  written 
80  as  to  release  the  sureties  <ju  an  indemnity  release  in  order  to  make  it  effe(:tive,  see  Clark 
given  to  a  sheriff  ou  a  levy  of  execution  and    v.  Childs,  4  West  Coast  Hep.  376. 

1542.    General  release,  not  to  extend  to  certain  claims. 

Sec  1542.  A  general  release  does  not  extend  to  claims  which  the  creditor 
•  does  not  know  or  suspect  to  exist  in  his  favor  at  the  time  of  executing  the 
.  release,  which  if  known  by  him  must  have  materially  affected  his  settlement 

with  the  debtor.     [Amendme)d,  approved  March  30,  1874;  Amendments  1873-4, 
;  241;  look  effect  July  1,  1874.] 

'■  1543.    Release  of  several  joint  debtors. 

Sec  1543.  A  release  of  one  of  two  or  more  joint  debtors  does  not  extinguish 
the  obligations  of  any  of  the  others,  unless  they  are  mere  guarantors;  nor  does 
it  affect  their  right  to  contribution  from  him. 

290 


Part  II,  Titlk  I,  Chap.  I.] 


DEFINITION". 


§§  1549,  1550 


Release  of  one  joint  debtor. — "This  pro- 
vision is  new:  See  Conu-ll  v.  Manteii,  So  Barb. 
157;  Bruuson  v.  Fitzhugh.  1  Hill  (N.  Y.),  185; 
J/pifm-iu  V.  Dunlop,  1  Barb.  185;  Parsons  v. 
Uwj/i't, 9  I'aige, 591 ;  Calitkill  Bank  v.  Mexxnifjer, 
9Cow.  .S7:  Bowlfy  v.  Stoddard,  7  Johns.  207.  A 
release  may  be  so  drawn  as  to  disciiarge  one  only 
of  se'"eral  joint  debtors.  As  the  intention  of 
the  en  ditiir  is  evident  enough  from  the  form  of 
the  lel  a  e,  the  justice  of  thij  provi-iion  can 
hardly  be  di&puted."  In  Raimom  v.  Farrish,  4 
Cal.  ;)SG,  and  Arrnstronfj  v.  Il'iyward,  G  Id.  18.3, 
a  release  of  one  joint  debtor  operated  as  a  release 
of  the  others.  But  this  latter  case  affords  illus- 
tration of  the  coinmissiouers'  statement  that  a 
release  may  be  so  drawn  as  to  discharge  but  one 
debtor. 

Part  payment  by  a  joint  debtor  does  not  re- 


lease him  from  liability  as  to  the  residue;  hia 
obligation  extends  to  the  entire  indebtedness: 
Griffith  V.  Grofjan,  12  Cal.  .317. 

Releasing  a  stockholder  from  all  liability  dis- 
charges other  stockholders  and  the  corporation 
to  the  same  extent:  Prince  v.  Lynch,  38  Cal. 
52S. 

Release  of  one  partner:  In  North  Ins.  Co. 
V.  Porter,  G3  Cal.  157,  the  creditor  released  two 
members  of  a  partnership,  expressly  sti[iu'atiiig 
that  the  defendant,  the  remaining  partner, 
should  not  be  released.  The  court  examined 
the  above  section  somewhat,  but  in  connection 
with  the  express  reservation  that  the  defendant 
should  not  be  discharged. 

Guarantor's  liability  discharged:  See  seo. 
2819,  7^o.s^ 

Rights  of  sureties:  See  post,  sec.  2S44, 


PAET  n. 

CONTRACTS. 

TnuE  I.    Natxtee  of  a  Contract ^ 1549 

II.     Manner  of  Creating  Contracts 1G19 

III.  Interpretation  of  Contracts 1G35 

IV.  Unlawful  Contracts „ .' 1GG7 

V.     Extinction  of  Contracts *.......- ♦....-  1G82 

TITLE   I. 

NATUEE  OF  A  CONTRACT. 

Chapter  I.     BErrNrnoN » 1549 

II.     Parties - 1556 

III.     Consent 15G5 

IV.     Object 1595 

V.     Consideration  ..,.., 1G05 


1549. 

Stc. 


CHAPTER  I. 

DEFINITION. 
Contract,  what. 
1549.    A  contract  is  an  agreement  to  do  or  not  to  do  a  certain  thing. 


1550.    Ex!<pniial  elements  of  contract. 

Sec  1550.     It  is  essential  to  the  existence  of  a  contract  that  there  should  be: 

1.  Parties  capable  of  contracting; 

2.  Their  consent; 

3.  A  lawful  object;  and, 

4.  A  sufficient  cause  of  consideration. 


Parties:  See  sees.  15.56  et  scq.;  and  see  ante, 
as  to  minors  and  persons  of  unsotind  mind,  sees. 
33  «t  Ke(|.:  Harris  v.  Harris,  64  Cal.  109. 

Consent:  See  sees.  156.'>etseq. 

Object  of  the  contract:  S-e  sec.  1595. 
"  Thtt  word   'object'  has  been  selected,  after 


much  reflection,  as  a  more  correct  word  for  the 
purpose  liere  intended,  than  '  subject '  or  *  sub- 
ject-matter:'" Note  in  draught  oif  code. 

Unlawful  contracts:  See  sec.  16G7,  post. 

Consideration:  See  sees.  1605  et  seq., />oa<. 


291 


§§  1556-1567  CONTRACTS.  [Div.  Ill,  Paet  n, 

CHAPTER  II. 

PARTIES. 

1556.  Who  may  contract. 

Sec.  1556.     All  persons  are  capable  of  contracting-,  except  minora,  persons  of 

unsound  mind,  and  persons  deprived  of  civil  rights. 

Contracts  of  infants:  See  an/!e,  sees.  :i3etseq.        Contracts  of  married  'women:  See  ante, 
Contracts  of  persons  of  unsound  mind:    sees.  158,  159,  107. 
See  ante,  sees.  38  et  seq. 

1557.  URnors,  etc. 

Sec  1557.     Minors  and  persons  of  unsound  mind  have  only  such  capacity  as 
is  defined  by  Part  I.  of  Division  First  of  this  code. 
See  ante,  sees.  33  et  seq. 

1558.  Identification  of  parties  necessary. 

Sec  1558.  It  is  essential  to  the  validity  of  a  contract,  not  only  that  the  par- 
ties should  exist,  but  that  it  should  be  possible  to  identify  them. 

1559.  When  contract  for  benefit  of  third  person  may  he  enforced. 

Sec  1539.     A  contract,  made  expressly  for  the  benefit  of  a  third  person,  may 

be  enforced  by  him  at  any  time  before  the  parties  thereto  rescind  it. 

One  in  vrhose  favor  a  contract  is  made  12  Iil.  300;  see  also  Pomeroy  on  Remedies,  sec. 
may  maintain  au  action  tliereon.  This  is  now  139,  and  the  colleetion  of  cases  in  2  Wlmrt.  on 
tlie  generally  accepted  doctrine  iu  America:  Cont.,  sees.  785  et  seq. ,  and  notes. 
Alasoii  V.  Hall,  30  Ala.  COl;  Burroics  v.  Hob-  For  a  consideration  of  the  principles  an- 
eri'son,  7  lov^a,  J 01;  Anlhovy  v.  lltrmau,  14  nonnced  in  the  above  section,  see  the  discus- 
Kan.  407;  Hobhlns  v.  Ayres,  10  Mo.  542;  sion  in  McLaren  v.  U ntchuinon,  22  Cal.  187, 
Jtu-kxon  V.  Smith,  52  N.  H.  11;  Jonlin  v.  N.  J.  and  the  cases  there  referred  to — wliero  the  doc- 
Car  S/>riiifj  Co.,  3G  N.  J.  L.  145;  JJel.  <t  //.  trine  of  novation  was  involved,  and  tlie  right 
Canal  Co.  v.  Woitclfster  Bank,  4  Denio,  99;  of  a  creditor  to  sue  ids  debtor's  debtor  by  rea- 
Glcn  V.  //o/'C  etc.  Inn,  Co.,  56  N.  Y.  381;  son  of  the  latter's  promise,  to  which  the  plaint- 
liarker  v.  Bradley,  42  Id.  319;  JJol^jh  v.  IVhite,  iff  was  not  a  party. 

CHAPTER  III 

CONSENT. 

1565.  Essentials  of  con.tent. 

Sec.  15G5.     The  consent  of  the  parties  to  a  contract  must  be! 

1.  Free; 

2.  Mutual;  and, 

3.  Communicated  by  each  to  the  other. 

Consent,  when  not  free,  and  effect:  Sees.  Consent,  how  commimicated:  See  r7)/ra, 
15  )G,  15!i7,  infra.  sees.  1581  ut  seq. 

Consent,  w^heu  not  mutual:  See  see.  1580. 

1566.  Consent,  when  voidable. 

Sec  15GG.  A  consent  which  is  not  free  is  nevertheless  not  absolutely  void, 
but  may  be  rescinded  by  the  parties,  iu  the  manner  jjrescribed  by  the  chapter 
on  rescission. 

Rescission  of  contracts:  See  pout,  sees.  1C88  et  seq. 

1567.  Apparent  consent,  when  not  free. 

Sec  15(57.    Au  apparent  consent  is  not  real  or  free  when  obtained  through; 

1.  Duress; 

2.  Menace; 

3.  Fraud; 

4.  Undue  influence;  or, 

5.  Mistake. 

292 


Title  I,  Ciiap.  III.] 


CONSENT. 


§§  15GS-1570 


"  Menice  has  usually  been  classed  with  du- 
ress, ;ui<l  wi  1  he  fciuud  to  be  treated  under  th;tt 
head  in  t'lo  digest.  It  is,  liowever,  clearly  a 
sep;!rito  branch  of  the  subject.  Accident  and 
surpr  :o  are  included  under  the  head  of  mis- 
take: "  Commissioners'  note. 


Duress  defined:  Sec.  15(59. 
r.^enace  dcfiued:  Sec.  1570. 
Fraud  defined:  Sec.  1.571. 
Undue  influence  defined:  Sec.  1575. 
Mistake  defined:  Sees.  loHi,  1577. 


1563.    When  deemed  to  have  been  obtained  by  fraud,  etc. 

Sec.  15G8.  Consent  is  deemed  to  have  been  obtained  through  one  of  the 
causes  mentioned  in  the  last  section  only  when  it  would  not  have  been  given 
had  such  cause  not  existed. 

15G9.    Duress,  what. 

Sr.c.  15G9.     Duress  consists  in: 

1.  Unlawful  confinement  of  the  person  of  the  party,  or  of  the  husband  or  wife 
of  such  party,  or  of  an  ancestor,  descendant,  or  adopted  child  of  such  party, 
huisband,  or  wife; 

2.  Unlawful  detention  of  the  property  of  any  such  person;  or, 

3.  Confinement  of  such  person,  lawful  in  form,  but  fraudulently  obtained,  or 
fraudulently  made  unjustly  harassing  or  oppressive. 

DurG33.   Subd.  1.  Unlawful  confinement.     Mee.  &  W.  645.     This  distinction  is  denied  by 

O.ie   uhii   has  been  uniav\fully  arrested,   and     the  American  authorities,  as  a  general  nilc,  as  ia 

asserted  Ijy  Ewell  in  a  note  in  21  Am.  L.  Reg., 
N.  S.,  115,  117.  It  is  considered,  and  recent 
cases  cited,  in  1  Whart.  on  Cont.,  sec.  149. 

See  the  subject  treated  of,  also,  in  note  to 
IJatler  v.  Grcevlee,  20  Am.  Dec.  ."74  et  se(|. 

Duress  of  goods,  where  one  is  compelled  to 
submit  to  an  illegal  exaction  in  order  to  re- 
cover them,  or  prevent  tlicir  being  sold,  as  for 
taxes:  See  Mefk^  v.  MrClure,  49  Cal.  G-ilj; 
WiUsv.  Auxtln,  53  Id.  152;  Merri'lv.  Aiis/in, 
Id.  379;  7>e  Frnnery  v.  Austin,  Id.  380;  1 
Wiiart   on  Cont.,  sec.  149. 

£jubd.  3.  Using  unlawful  process  to  es- 
tort  consent  avoids  the  contract:  /?/<har<l.ion 
V.  Dnurcw,  3  N.  IT.  508;  Osh  ni  v.  Rohhins,  .36 
N.  Y.  3o5;  Phclpii  v.  Zasrhkvj,  34  Te.\.  371; 
Bab'r  V.  Morton,  12  Wall.  l.JO. 

Sue  2  Pomcroy's  Ei^.  Jar. ,  sec.  950,  for  a  state- 
ment regarding  the  remedy  ia  equity  in  caaea 
of  duress. 


vrhile  i  uprisoned  executes  a  contract  by  reason 
thei'eof,  or  pays  money  for  his  release,  may 
£ul;S((|ueiitly  avoid  tlie  contract,  or  recover  the 
m(  uey  in  a.'isiimpsU  for  money  had  and  received: 
IFa/j  //x  V.  IJa/rd,  4  Am.  Dec.  170;  Brooks  v. 
UerryhW,  20  Ind.  97;  liichfinl-oii  v.  Duncan,  3 
N.  li.  508;  Sto"fn-y.  Lat>'haw,  2  Watts,  1G7; 
I iackett  V.  K'nuj,  6  Allen,  58;  Ureih  v.  Ulanrh- 
anl,  22  Id.  ?,'.)3;'  IVallbridric  v.  A  mold,  21  Id.  424. 

Tlic  unlawful  imju-isonment  of  an  adopted 
chiKl  as  ilurcss  is  said  liy  the  code  connnission- 
ers  to  be  a  "  new  provision,  but  in  accordance 
with  the  title  on  adoption: "  See  ante,  sees.  221 
et  sef). 

Subd.  2.  Unlawful  detention  of  property. 
The  rule  of  the  code  is  very  broad.  In  Knglaiul 
the  rule  seems  to  be  that  money  paid  to  release 
goods  uidawfully  detained  njay  be  recovered, 
but  that  a.  promise  made  for  the  same  purpose 
caimot  be  iuvalidated:  Artte  v.  Backhouse,  3 


1570.    Mnmce,  ivhat. 

Sec.  1570.     Menace  consists  in  a  threat: 

1.  Of  such  duress  as  is  specified  in  subdirisions  one  and  three  of  the  last 
section; 

2.  Of  unlawful  and  violent  injury  to  the  person  or  property  of  any  such  per- 
son as  is  specified  in  the  last  section;  or, 

3.  Of  injury  to  the  character  of  any  such  person. 
l\;:ena cc— Threats  of  duress.— Threatening    C«>nu.  221 ;  Sinrjer  Co.  v.  Rawton,  50  Iowa,  G.34; 


the  prciinisor  with  a  criminal  prosecution  avoids 
the  contract.  Lac.  Abr. ,  tit.  Duress,  A,  states: 
"^ly  Lord  Coke  says  that  for  menaces  in  four 
instances  a  man  may  avoid  his  own  act:  1.  For 
fear  of  life;  2.  For  fear  of  loss  of  member;  3. 
Of  mayliem;  4.  Of  imprisonment."  Support- 
ii'g  tliis  as.sertion,  see  Wldtjidd  v.  Loiuj/tl/oir, 
l.'i  Me.  1-10;  Edvanlii  v.  Jiniid/(\i/,  3  Am.  Dec. 
G02;  Mi-adoii-f  v.  Smith,  7  [red.  Eq.  7;  Fo'<>!  v. 
irddr<':h.  10  Allen,  70;  U'aUbrhl;/''  v.Aruo/d,  21 
Conn.  424;  Brawn  v.  Perk.  2  \\'is.  277;  Schulz 
V.  Cdhrr/son,  40  Id.  313;  S.  C,  49  Id.  122. 

Threatening  tlie  contraciing  party  with  ini- 
prisomnent  of  her  husband  is  menace:  E'dic  v. 
SUiuiuon,  20  N.  Y.  9;  McMahoa  v.  Smith,  47 


and  see  Smith  v.  lioirley,  00  Barb.  5J2:  Coinjf 
ton  V.  Bunk,  90  III.  301.  S.>,  of  a  tlne.it  to 
prosecute  the  mortgagor's  son  for  forgery: 
llairlfi  V.  C'ormrd>i,  131  Mass.  51. 

Subd.  2.  Threats  of  injury  to  person  or 
property:  See  the  note  in  E"  ell's  Lead.  Cas. 
772;   I  Whart.  on  Cent.,  sees.  144  et  scip 

Subd.  3.  Threats  of  injury  to  character. 
"This  species  of  Llireat  is  not  usually  included 
in  the  (lefinition  of  dui'<;ss,  and  was  doubilesa 
not  so  treated  under  the  old  common  law,  when 
a  libeler  could  be  made  to  rot  in  jail  until  he 
paid  damages,  while  neither  the  jiuignienb 
creditor  nor  any  one  else  was  bound  to  find  lutn 
food  or  drink:  Dive  v.  Jlaniuyham,  1  PlowJ, 


§§  1571,  1572 


CONTRACTS. 


[Drv.  Ill,  Part  II. 


threatening  letters  for  the  purpose  of  extorting 
money,  and  that  which  is  thus  treate<l  as  a 
crime  ouL!;ht  not  to  be  allowed  to  sustain  a  con- 
tract. These  views  are  further  sustained  Ijjr 
Story  on  Cont.,  sec.  398;  2  Stark.  Ev.  482;  Chit. 
Cont.  208.  And  see  Eadie  v.  Slimmon,  2G  N. 
Y.  9,  in  whicli  some  weight  is  given  to  the  in- 
fluence of  a  threat  involving  the  loss  of  a  liua* 
band's  character: "  Commissioners'  note. 


68;  and  when  some  debtors  did  actually  starve 
to  death.  Witli  sucli  a  savage  remedy  for  the 
recovery  of  pecuniurj'  damages,  they  might  Ijc 
considered  an  adecjuate  satisfaction  for  injuries 
to  pro[>eity  or  character,  and  it  was  on  this 
grouml  that  such  injuries  were  not  regarded  as 
duress:  IJac.  Abr.,  tit.  Duress,  A.  Tlie  remedy 
now  existing  is  less  effective,  even  if  money 
Mere  considered  equivalent  to  character.  By 
Btafcute,   it  is  now  a  criminal  offense  to  send 

1571.  Fraud,  actual  or  constructive. 

Sec.  1571.     Fraud  is  either  actual  or  constructive. 

1572.  Actual  fraud,  what. 

Sec.  1572.  Actual  fraud,  witliin  the  meanings  of  this  chapter,  consists  in  any 
of  the  following  acts  committed  by  a  party  to  the  contract,  or  with  his  conniv- 
ance, with  intent  to  deceive  another  party  thereto,  or  to  induce  him  to  enter 
into  the  contract: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by  one  who  does  not 
believe  it  to  be  true; 

2.  The  positive  assertion,  in  a  manner  not  wan-anted  by  the  information  of 
the  person  making  it,  of  that  which  is  not  true,  though  he  believes  it  to  be  true; 

3.  The  suppression  of  that  which  is  true,  by  one  having  knowledge-or  belief 
of  the  fact; 

4.  A  promise  made  without  any  intention  of  performing  it;  or, 

5.  Any  other  act  fitted  to  deceive. 


Actual  fraud.  —  "Within  the  meaning  of 
this  chapter."  This  defaiition  is  not  to  be  con- 
sidered as  covering  all  varieties  of  fraud,  but 
only  such  fraud  as  vitiates  the  consent  of  the 
party  to  a  contract:  Commissioners'  observa- 
tion. In  Brady  v.  Bartlett,  50  Cal.  .350,  305, 
it  is  also  said,  referring  to  sections  1572  and 
1573,  that  "these  definitions  are  very  broad, 
but  whether  they  embrace  every  species  of 
fraud,  it  would  be  impossible  a  priori  to  say." 
The  commissioners  say  further,  that  this  section 
inclines  to  the  view  us  more  sound  that  no  pe- 
culiar "artlBce"  is  necessary  in  addition  to 
the  intent  to  constitute  fraud,  citing  KiiKj  v. 
Phi  lip.t,  8  Bosw.  G03;  llenneqain  v.  Nciylor,  24 
N.  Y.  139.  For  decisions  di.scussing  the  (ques- 
tions of  "intent"  as  an  element  of  fraud,  see 
Commissioners  v.  Yonnrjpr,  29  Cal.  172;  Visrher 
V.  WclMcr,  8  Id.  109;  Colim  v.  Mulford,  15  Id. 
60;  Alvarez  v.  Drunnaii.  7  Id.  503. 

Subd.  1.  ■Willful  misrepresentation. — 
"The  word  'suggestion'  is useil  instead  of  'as- 
sertion,' because  even  a  hint,  or  a  true  report  of 
what  others  may  have  untruly  said,  ia  a  fraud, 
when  conveying  an  impression  which  the  party 
knows  to  bj  false,  and  made  for  that  purpose: 
See  Jlaiqht  v.  Ilcn/t,  19  N.  Y.  404;  IV lute  v. 
Merrill,  7  Id.  352^;  Giford  v.  Carvill,  29  Cal. 
589;  also  see  De  Leon  v.  Ilvjuera,  15  Id.  483; 
Rliea  V.  Snrryhnp,  39  Id.  579.  As  to  what 
constitutes  actual  fraud,  see  the  able  opinion 
of  Justice  Wallace  in  Rnneman  tk  Ilowland  v. 
Canovan  <L-  Sanborn,  43  11.  110.  A  misrepre- 
Bentation  of  the  value  of  a  business  and  the 
good-will  thereof,  knowingly  made  by  the  ven- 
dor, held  fraudulent,  and  entitled  the  purchaser 
to  rescission  of  the  contract:  Cruesn  v.  Fender, 
39  Cal.  3.30:"  Commissioners' note. 

W!\erc  one  of  a.numljer  of  intending  pur- 
chasers is  dole  ;ated  to  complete  the  pure' las-?, 
and    represents    that    the    purchase   price   is 


greater  than  it  really  is,  and  receives  a  pro- 
portionally greater  sum  from  each  one,  he  will 
be  held  answerable  to  his  associates  for  the  ex- 
cess and  interest:  Rhea  v.  Surr;ihnp,  39  Cal. 
579.  A  misrepresentation  by  the  husband  to 
the  wife  of  the  amount  of  land  mortgaged  by 
them  will  not  entitle  the  wife  to  avoid  the  in- 
strument as  to  the  purchaser,  who  knew 
nothing  of  the  misrepresentation,  or  that  the 
wife  did  not  wish  to  mortgage  all  the  land  de- 
scribed: S/ewnri  v.  Whitlock,  5S  Id.  2. 

Repressntations,  when  and  when  not 
fraudulent. — For  an  extended  consideration  of 
the  subject  of  misrepresentation,  sec  2  I'ome- 
roy's  Eq.  Jur.,  sees.  876  etseq. ;  and  1  Benjamin 
on  Sales,  4th  Am.  ed.,  sec.  5i36,  notes. 

Representations  as  to  the  value  of  a  mine 
made  by  a  vendor  who  did  not  assume  to  speak 
of  his  own  knowledge,  and  did  not  know  and 
had  no  reason  to  believe  that  they  were  untrue, 
are  not  fraudulent:  Davidson  v.  Jordan,  47 
Cal.  351.  See  Bank  of  Woodland  v.  J/iatt,  53 
Id.  234,  where  misrepresentations  as  to  the 
value  of  mining  stock  did  vitiate  the  sale. 
Misrepresentations  of  the  value  of  a  business 
knowingly  made  entitle  the  purchaser  to  a  re- 
scission: Crupss  V.  Fensler,  39  Id.  336.  Fraud- 
ulent representations  of  tiie  value  of  a  mina 
will  entitle  the  purchaser,  under  a  proper  state 
of  the  pleailings,  to  resist  the  payment  of  the 
note  given  for  the  purchase  price:  Gifford  v. 
Carvill,  29  Id.  589.  As  one  is  presumed  to 
know  his  own  title  to  land,  it  is  not  a  mis- 
representation to  tell  him  he  has  none  in  order 
to  induce  him  to  sell:  Rubins  v.  JJojk,  57  Id. 
493. 

For  case  of  fraudulent  representations  on 
sales  of  personalty,  see  Rosfman  v.  Canovan, 
43  C.d.  110,  where  the  fraudulent  statements 
were  accompanied  by  active  concealment  of 
the  damaged  conditioa  of  the  wool  sold:  BeU 


294 


Title  I,  Chat.  III.] 


CONSENT. 


§§  1573-1575 


V.  Ellis,  33  Id.  620,  a  case  of  misrepresenta- 
tion as  to  the  buyer's  pecuniary  circumstances. 
Upon  this  last  point,  see,  further,  the  cases  cited 
infra,  under  subilivisiou  "Concealment." 

Fcilse  representations  as  to  another's 
credit:  See  the  note  to  Lord  v,  Colley,  25  Am. 
Dec.  445. 

Subd.  2.  Reckless  misstatements:  See 
Benv-M  V.  Judnoii,  21  N.  Y.  238;  Craig  v.  Ward, 
36  Barb.  377.  Definite  statement  as  a  fact  of 
what  the  party  <loes  not  know  to  be  true,  and 
without  reasonable  grounds  to  believe  it  to  be 
true,  is  fraudulent;  and  claiming  to  believe  it 
to  be  true  does  not  remove  the  fraudulent  char- 
acter; Youiirj  V.  Covell,  8  Johns.  23;  Benton  v. 
Pratt,  2  Wend.  385;  Tyson  v.  Passmore,  2 
Pa.  St.  122;  Joicp  v.  Taylor,  6  Gill  &  J.  54; 
Evav.f  V.  Edmovd.'i,  13  C.  B.  777,  786. 

Subd.  3.  Concealment.— The  third  sub- 
division, in  describing  concealment  as  fraud- 
ulent, omits  that  (]ualification  which  runs 
througli  the  cases,  and  is  formulated  by  Profes- 
sor Pouieroy,  in  2  Eq.  Jur.,  sec  901,  thus:  "If 
either  party  to  a  transaction  conceals  some  fact 
which  is  mateiial,  wliich  is  within  his  own 
knowledge,  and  which  it  is  his  duty  to  disclose, 
lie  is  guiliy  of  actual  fraud."  That  author  cites 
a  great  number  of  decisions,  among  them,  Pone- 
man  V.  (,'anovan,  43  Cal.  110,  117;  Hastings  v. 
O'Doniiell,  40  LI.  148;  and  says  that  all  of 
them  show  impliedly,  and  many  of  them  ex- 
pressly, "that  in  rll  transactions  where  there 
is  no  legal  or  equitable  duty  to  make  a  dis- 
closure tiie  failure  to  disclose  material  facts 
knov.n  to  one  p:irty  alone  is  not  a  fraudulent 
coucealmeut  by  him:*'  See  pod,  sec.  1710. 

J/c/v  von-dhdoKure  of  buyer' n  insolvency  does 
not  render  sale  void:  P<U  v.  Ellis,  33  Cal.  620; 
Heniiequin  v.  Kaylor,  24  N.  Y.  139;  Talcolt  v. 
Ilend  r-^on.  31  Ohio  St.  1C2;  Rodman  v.  Thai- 
heimer,  75  Pa.  St.  232;  Patton  v.  Campbell,  70 

1573 .    Co)i  fitrv  ct  ire  fra  u  d. 

Sec.  1573.     Constructive  fraud  consists: 

1.  In  any  breach  of  duty  wLicli,  -without  an  actually  fraudulent  intent,  j]faina 
an  advantajje  to  the  person  in  fault,  or  any  one  claiming'  under  him,  by  mis- 
leading another  to  his  prejudice,  or  to  the  pi'ejudice  of  any  one  <;laiming  under 
him;  or, 

2.  In  any  such  act  or  omission  as  the  law  specially  declares  to  be  fraudulent, 

without  respect  to  actual  fraud. 

Constrac  ive  fraud,  see  the  subject  of, 
treated  ///  <xlen^o  in  2  Pomeroy's  Eq.  Jur., 
Bees.  D23  et  se(j.     See  also  the  distinction  be- 


lli. 72.  But  there  must  be  no  active  mislead- 
ing of  tlie  seller:  Bell  v.  Ellis,  supra;  Sctnceizer 
v.  Tracy,  7G  I.l.  345;  Bryant  v.  Booth.  30  Ala. 
311.  x\.nd  see  the  collection  of  authorities  upoa 
this  questicm  in  the  note  to  Thurston  v.  Blanch- 
ard,  33  Am.  Dec.  707. 

Subd.  4.  I  romise,  not  to  be  kept. — Pur- 
chase of  goods  without  intending  to  pay  for  them 
is  a  fraud  consummated  when  possession  of  the 
goods  without  payment  is  obtained  according 
to  the  terms  of  sale:  Stewart  v.  Levy,  30  CaL 
159.  See  the  point  discussed  in  note  to  Thura- 
ton  V.  Blanchiird,  33  Am.  Dec.  708. 

Subd.  5.  Other  cases  of  actual  fraud: 
Farley  v.  Vawjhan,  11  Cal.  227,  where  a  vendor 
of  reaUy,  who  had  not  received  the  entire  pur- 
chase jirice,  stood  by  and  sawthe  vendeeexpend 
large  sums  of  money  in  improvements,  an  1  thea 
try  to  secure  tiie  same  by  claiming  a  forfeiture 
of  the  contract.  In  Shay  v.  McNamara,  54 
Id.  IGO,  an  agent  liaving  a  power  of  attorney 
from  the  owner  of  land,  and  money  furnished 
by  sucli  owner  to  pay  off  certain  taxes  on  his 
land,  sufTercd  the  land  to  be  sold  for  such  taxes, 
procured  the  deed  to  be  made  in  the  name  of  a 
person  who  conveyed  to  the  agent's  wife,  and 
then  the  agent,  acting  under  the  power  con- 
veyed in  fee  to  that  person,  who  likewise  con- 
veyed to  the  agent's  wife,  it  was  held  that  both 
deeds  were  fraudulent  and  void,  as  against  tha 
owner's  wife  and  lier  tenant.  It  is  fraudulent 
for  a  corporation  to  reincorporate  witli  tlie  same 
oOicers,  to  exchange  old  stock  for  new,  and  to 
receive  a  conveyance  of  the  property  of  tlie  old 
one:  ,S'.  /:  ,t-  N.  P.  11.  li.  v.  Bee,  48  Id.  308. 

Fraudiilent  instruments  and  transfers: 
See  sec.  34:]'J,  pod. 

Rescission  of  contracts  for  fraud:  See 
post,  sec.  1GS8. 

Deceit;  ^cepost,  sees.  1709,  1710. 


tween  actual  and  constructive  fraud  stated 
and  applied,  iai  Tompkins  v,  Spirout,  bo  Cal. 
37. 


1574.    Actual  fraud  a  question  of  fact. 

Sec.  1574.     Actual  fraud  is  always  a  question  of  fact. 

C'irthy  V.  White,  21  Cal.  495;  Joyce  v.  Joyce,  6 


Actual  fraud  is  a  question  of  fact;  ?'«% 
V.  l.arluf,  35  Cal.  302;  Southirorth  v.  Pesinq, 
3  Id.  377;  21i  l<r  v.  Stewart,  24  Id.  502;  Butl'r 
V.  Collins,  12  Id,  45;  King  v.  Davis,  34  Id. 
100. 

The  fraud  must  be  clearly  made  out:  Me- 


ld. IGl. 

Yet  express  proof  is  not  required;  it  may  be 
inferred  from  circumstances:  McDaulel  v.  Baca, 
2  Cal.  32G:  Billing--^  v.  Billings,  2  Id.  107. 

See  Kerr  ou  Fraud  and  Mistake,  383  et  seq. 


1575.    Undue  iiijhience,  what. 

Sec.  1575.     Undue  influence  consists: 

1.  In  the  use,  by  one  in  whom  a  confidence  is  reposed  by  another,  or  who 
holds  a  real  or  apparent  authority  over  him,  of  such  confidence  or  authority  for 
the  purpose  of  obtaining  an  unfair  advantage  over  him: 

295 


§§  lo76.  lo77 


CONTPtAGTS. 


[Div.  Ill,  Paiit  11, 


2.  In  taking'  an  unfair  actvanta,!;,'e  of  ai 

3.  lu  tatinf^  a  grossly  oppressive  and 
ties  or  distress. 

Undue  inSuencs.  Siibd.  1.  Abusing  con- 
Cdsiioe,  where  one  uses  a  cniiidcntial  relation 
orajiosition  of  authority  to  obtain  aii  unfair 
■advantage  over  tiie  person  witii  wlxom  the  rela- 
tion is  sustained  or  over  w'.iom  tho  authority  is 
exercised.  Consent  secured  through  undue  in- 
fi'.ience  by  a  pAreut  over  a  chikl  is  not  free: 
Taylor  V.  Taylor,  8  How.  183;  Bcrt/nn  v. 
iJdr.il,  .SI  Barb.  9;  Burkmeyi^r  v.  KrUrrnian,  ;52 
Ohio  St.  239.  So  with  respect  to  undue  inQu- 
»;ucL-  l>y  members  of  a  family:  Todd  v.  Urore, 
S3  Md.  ISS;  Martin  v.  Marlin,  1  IIei.sk.  Git; 
R'-d  l)V  an  attorney  over  his  client:  Urceufiild's 
'fldnto,  !4  Pa.  St.  4S0;  S.  C,  24  Id.  232;  White'- 
head  V.  Kennedy,  69  N.  Y.  402;  by  a  trustee  over 
the  })encficiary:  DiUer  v.  JlruhaLrr,  frZ  Pa.  St. 
403:  Spi^itier's  App^cd,  80  Id.  332;  Parker  v. 
N irlcpr-ion ,  112  Mass.  19.j;  Lewin  on  Trusts  aud 
Trustees,  337.  See  the  terms  "  contideiital  rela- 
tion "  aud  "fiduciary  relation"  explained  in 
Jiobins  V.  Hope,  57  Cal.  493,  and  held  not  to 
apply  to  case  of  alleged  "  unlimited  confidence," 
not  founded  in  any  other  relationship  than  that 
of  first  cousin. 

Plaading  undue  inSuenoe  to  vitiate  a 
deed  is  considered  in  Goodwin  v.  Goodwin,  59 
Cal.  5G0. 

Undue  influence  vitiating  will:  See  sec. 

1272.  a:ifr. 

Subd.  2.  "Weakness  of  mind. — As  an  illus- 


lother's  weakness  of  mind;  or, 
unfair  advantao'e  of  another's  necessi- 


tration  of  undue  influence  within  the  meaning 
of  tiiis  subdivision,  consult  Moore  v.  Moore,  56 
Cal.  89,  where  a  widow's  brothors-iii-law  took 
advantage  of  the  uu'utal  prostriition  occa.iioned 
by  the  Sudden  death  of  the  husband  to  induce 
her  to  execute  deedsof  her  interest  in  his  estate. 

Tiiat  i;uposition  or  undue  influence  will  be 
inferred  from  great  mental  weakness,  occa- 
sioned by  illness,  when  accompanied  by  gro?3S 
inade(]uacy  of  consideration,  see  Allore  v. 
Je,rril,  94 "U.  8.  50d. 

^Jere  uicntal  disparity  in  the  parties  con- 
tracting is  not  of  itself  sulficieiit  to  distnrl)  a 
cortract:  1  Wliart.  on  Cont.,  sees.  103,  157. 
But  where  fraud  is  resorted  to  by  a  party  in 
obtaining  a  contract  in  his  favor,  proof  of  a 
comparatively  slight  degree  of  mental  imbe- 
cility is  re<]uii-ed  to  set  aside  a  coiitract  induced 
by  such  inllnencc:  Id.,  sec.  15S. 

Undue  inOuenoe  as  affeoting  validity  of 
"wills:  See  n)itc,  sec.  1272,  aud  note. 

Rescission  of  contracts;  S-e  />o.s«,  sec. 
1GS9. 

The  subject  of  undue  influence  generally  is 
discussed  in  the  recent  text-book.  1  Whart.  on 
Cont.,  sec.  157,  where  the  various  classes  made 
in  the  code  are  illustrated  by  citations  of 
adjudications,  and  tlie  question  who  can  take 
advantage  of  such  impositions  to  set  aside  the 
contract  is  considered. 


1576.   3lLsfake,  xohat. 

Sec.  1576.     Mistake  may  be  either  of  fact  or  law. 


Mistake — "As  to  mistake  of  fact  there  is  no 
question.  Mistake  of  law  has  been  often  de- 
clared (and  in  fact  well  settled  in  this  state)  to 
be  no  gnjund  for  relief  at  law  or  in  ecpiity: 
Smith  V.  McDourji-l,  2  Cal.  580;  Gro^s  v.  Par- 
roit,  10  Id.  143;  Kenyan  v.  U'el/y,  20  Id.  037; 
Parsons  v.  Fnirbant-t,  22  Id.  343;  Bart  v.  Wil- 
son, 28  Id.  632;  see  Champlin  v.  Laylin,  13 
Wend.  417;  Siorrb  v.  Parker,  G  Johns.  Ch.  IGG; 
Lyon  V.  Richmond,  2  Id.  61;  Kent  v.  Manches- 
ter, 29  Barb.  595;  Story's  Eq.  Jur.,  sees.  111- 
139.  The  contrary  view  has  l)een  taken  by 
judges  of  high  standing:  See  Champlin  v.  Lay- 
tin,  18  Wend.  422;  Man  if  v.  Beekinan  Iron  Co., 
9  Paige,  188;  Stone  v.  God/rei/,  5  De  G.  M.  & 
G.  90;  Brourjkton  v.  Ilatt,  3  De  G.  &  J.  501; 
JUvants  V.  Strode,  11  Ohi<i,  480;  see  also  W heeler 
V.  Smith,  9  How.  55.  This  chapter  undoubt- 
edly modifies  the  rule  heretofore  existing  in 
this  state  as  to  mistake  of  law.  The  cases  last 
cited  above  seem  to  have  all  been  well  consi<l- 
ered.  The  rule  that  no  relief  should  ever  be 
■granted  on  the  ground  of  mistake  of  law  seems 
too  harsh,  and  in  some  cases  might  work  great 
•hardship.  There  is,  however,  no  doubt  but 
tiiat  relief  upon  this  ground  must  be  granted 
with  extreme   caution  and  only  in  a  limited 


class  of  cases:  See  sec.  1578:"  Code  Commis- 
sioners' note. 

That  a  party  may  be  relieved  from  a  mistake 
of  law  as  well  as  of  fact,  see  Remln'iton.  v.  llig- 
gis,  54  Cal.  620;  Love  v.  S.  N.  L.  IF.  d:  M. 
Co  ,  32  Id.  639.  And  that  a  writing  may  bo 
reformed  by  going  back  tot'ue  original  mistake 
and  correcting  all  sub.sequent  mistcJics  growing 
out  of  it,  see  Qnimby  v.  Baker,  37  Id.  405; 
Donallx.  B"alx,  57  Id.  199. 

Parol  evidence  admissible  to  establish  a  mis- 
take in  a  written  instrument:  See  \'erzan  v. 
McGreyor,  23  Cal.  339;  Miophy  v.  Booney,  45 
Id.  78;  Murray  v.  Lake,  45  Id.  044;  Janntltv. 
Cooper,  59  Id.  703.  The  I'ules  adopted  by  the 
courts  of  America  and  England  in  this  particu- 
lar, with  their  limitations,  are  stated  and  dis- 
cussed at  length  in  2  Pomeroy's  Eq.  Jur.,  sees. 
807  et  seq. 

ReforxTiing  instroment  on  the  ground  of 
mistake:  Kochfrw.  Iku/ford.  59  Cal.  310;  S. 
C,  3  West  Coast  Rep.  29.!;  Jarnatt  v.  Cooper, 
Id.  703,  and  cases  there  cited  in  couiisji's  argu- 
ment; IJii/fjin.i  V.  Partonx,  3  West  Coast  Rep. 
91;  Spare  v.  Home  Mnt.  /,is.  Co.,  1  Id.  542- 
(C.  C.  Or.);  S7)uth  v.  Batter,  3  Id.  503. 


1577.    Mistake  of  fact. 

Si:c.  1577.     Mistake  of  fact  is  a  mistake,  not  caused  by  tho  neglect  of  a  legal 
dut^'  on  the  part  of  the  person  making  the  mistake,  and  consisting  in: 

1.  An  unconscious  ignorance  or  forge tfulness  of  a  fact,  past  or  j)reseut,  mate- 
■  rial  to  the  contract;  or, 

;29G 


TiTis  I,  Cn-vp.  III.]  COXSENT.  §§  1578-1583 

2.  Belief  in  the  present  existence  of  a  tiling  matei-ial  to  the  conti-act  which 

does  not  exist,  or  in  the  ptiat  existence  of  such  a  thing  which  has  not  existed. 

L^istalie  of  fact. — For  mistakes  held  to  he  19  IJ.  GGO;  Qidre;/  v.  B  'kfr,  ."7  Id.  4G5;  Wag- 

mistako?  cf  law,  and  not  of  fact,  see  Cahfornia  eiililasi   v.    iVa-'^h'turii,    12    Id.    208;    Jluks   v. 

casc3  c'ted  in  note  to  sec.  1,j7G,  a///f.    For  relief  ]Vhiesi(Jn,   2;}   Id.    404;    Moxx   v.    Mmjo,    Id. 

attbnkd  incases  arising  from  mistake  of  fact  421;  Zf.le  v.   JJuh'x,    12    Id.   470.     Mistjike  is 

and  what  cou;titutes  such  mistake,  see  Bar-  not  constructive  fraud:   Mcrcier  v.   Lewii,  39 

/If'd  V.  Price,  40  Cal.  535;  Lentrade  v.  Bartli,  Id.  532. 

1573.    Mistake  of  law. 

Sec.  1578.  Mistake  of  law  constitutes  a  mistake,  within  the  meaning  of  this 
article,  only  when  it  arises  from: 

1.  A  misapprehension  of  the  law  by  all  parties,  all  supposing  that  they  knew 
and  understood  it,  and  all  making  substantially  the  same  mistake  as  to  the 
law;  or, 

2.  A  misapprehension  of  the  law  by  one  party,  of  which  the  others  are  aware 
at  the  time  of  contracting,  but  which  they  do  not  rectify. 

Mistake  of  lavy.  Subd.  1. —  Mainjw  Bi'ck-  should  he  relieved  against  as  a  mistake,  if  not 
man  Iron  Co.,  U  Paige,  ISS;  Ilall  v.  He  d,  2  as  a  fraud:  See  note  to  sec.  1570:"  Code  corn- 
Barb.    Lb.  501;   see   Pitcher   v.    Turin  Plank-  ujissioners' note. 

road  Co.,    10  Barb.    43(3;    Wake  v.  llarrop,  G         Sec  a  valuable  and  recent  cxaminntion  of  the 

H.  &  K.  7GS.  principles  and  adjudications  upon  this  subject 

Gubd.  2. — In  Cooke  v.  Nathan,  10  Barb.  342,  in  2  I'onieroy's  E^.  Jur.,  aces.  841  et  st-q.     Tho 

it  wa;j  licl  1  th;it  a  misrepresentation  of  t!ie  law  doctiine  of  the  first  sul)divisiou  of  the  above 

by  one  party,  upon  which  the  other  i^aioranlly  section  is  treated  iu  section  840  of  that  work, 

relied,  wcs  a  fraud.     It  seems  to  follow  that  a  and  of  the  second  subdivision  in  section  847. 
transaction  such  as  is   desciibed   in  the  text 

1573.    MlMake  of  foreign  laws. 

Sec.  1579.     Mistake  of  foreign  laws  is  a  mistake  of  fact. 
Foreign  laws,  how  proved:  See  Code  Civ.  Proc,  sees.  1900,  1901. 

1583.   3lutaallty  of  consent. 

Sec.  1580.  Consent  is  not  mutual  unless  the  parties  all  agree  upon  the  same 
thing  in  the  same  sense.  But  in  certain  cases  defined  by  the  chapter  on  inter- 
pretation they  are  to  be  deemed  so  to  agree  without  regard  to  the  fact. 

Xiitarpretatiou    of    contracts:    See    pout,  CO  Cal.  387,  to  the  case  of  signers  of  a  note 

sees.  !G3.Jcthcq.  claiiuiug  to  be  siirctie-s,  not  makers,  who  were 

Llatualicy. — The   principle  of  this  section  he'd  required  to  prove  that  the  pa3-co  accepted 

wao  applied,  in  Farmers'  Nat.  Bank  v.  Stover,  them  iu  that  capacity  and  not  as  makers. 

15S1.    Communication  of  consent. 

Sec.  1581.     Consent  can  be  communicated  with  effect  only  by  some  act  or 

omission  of  the  party  contracting,  by  which  he  intends  to  communicate  it,  or 

which  necessarily  tends  to  such  communication. 

"  This  is  intended  to  exclude  tlie  possible  communicated  by  him  to  the  otlier  party  with, 
case  of  a  dcclaiation  of  consent  made  to  a  }'er-  out  authority:"  Note  from  draught  of  the  code, 
sou   having   no   interest  iu   the    contract,   and 

1582.  ]\[(id('.  of  communicaiiiif/  ncci'ptnnce  of  proposal. 

Sec.  1582.  If  a  proposal  iirescribes  any  conditions  conceniing  the  communi- 
catiun  of  its  acceptance,  the  proposer  io  not  bound  unless  tbay  are  conformed 
to;  but  in  other  cases  any  reasonable  and  usual  mode  may  be  adopted. 

See  Morril!  v.  Tehama  Co.,  10  Nev.  125;  Norlhcna  v.  Ourdon,  40  Cal.  582. 

1583.  Wlini  cammunicaiion  dconcd  vompU'le. 

Sec.  1583.  Consent  is  deemed  to  be  fully  communicated  between  the  parties 
as  soon  as  the  party  accepting  a  propo.sal  has  i)ut  his  accei>tance  in  the  course 
of  trausniis.sion  to  the  proposer,  in  conformity  to  the  last  section. 

Aoceptauoe  by  letter:  .See  discussion  <>f  edition  of  1  Addison  on  Con t.  42,  "  This  sec- 
this  sui)^cct  ill  I  W'hart.  on  Cont ,  sees.  17  et  tion  recognizes  the  rulo  that  consent  is  com- 
Beq. ;    and  a  valuable  note  by  Abbott  in  his     plete  as  soou  as  a  letter  of  acce^jtauce  is  put 

297 


§§  1584-15S3  CONTRACTS.  [Tuv.  Ill,  Part  H, 

into  the  post-office:  Mnrtierx.  Frith,  G  Weiul.  Co.,  5  Pa.  St.  339;  Aver'iU  v.  nedje,  12  Conn. 

10:1;  rassar  v.  Camp,  1  i  N.  Y.  441;  Diinlop  v.  4.1G;  Bcrbinth  v.  Chcever,  21  M.  II.  41;  Duncan 

HiijrjiitK,]  II.  L.  Gas.  3S1;  Tcu/he  v.  Mo-chanis'  v.  Topham,  8  C.  B.  22.').     To  tlie  contrary  is 

/*'«;v'  ///.s-.,  9  How.  390;   Eiiason  v.   lleuxhaio,  OUlc^pic  v.  Edmonnton,  11  HLiin;)h.  5j3:"  Code 

4    Wheut.    22S;    uamiUon   v.  Lycoming    Ins,  com luissiouers' note, 

1584.  Acrcpfance  by  performance  of  conditions. 

Sec.  1584.  Performance  of  the  conditions  of  a  proposal,  or  the  acceptance 
of  the  conhiideration  offered  with  a  proposal,  is  an  acceptance  of  the  proposal. 

Acceptance  by  performance  of  condi-  743;  Lungstrass  v.  German  Ins.  Co.,  43  Mo. 
tions. — Tiiu  acceptance  of  au  offer  may  be  sig-     200. 

nilicd  l>y  pcfformance  alone,  especially  where  Non-acceptance  by  person  to  whom  the 
notice  of  acceptance  is  not  re(inireil:  PaUon  proposal  is  made  cannot  bti  taken  advantage  of 
V.  J/as^ngfr,  03  I'a.  St.  311,  314;  Cooper  v.  by  the  proposer's  agent  to  iv^e  tlic  con Lract  for 
Altimus,  02  Id.  4SG;  Crook  v.  Cowan,  04  N.  C.     his  own  beuelit:   Wiard  v.  Brown,  3J  Cal.  194. 

1585.  Acceptance  must  he  absolute. 

Sec.  1585.  An  acceptance  must  be  absolute  and  unqualified,  or  must  include 
in  itself  an  acceptance  of  that  character  Avhich  the  proposer  can  separate  from 
the  rest,  and  which  will  conclude  the  person  accepting.  A  qualified  acceptance 
is  a  new  proposal. 

Acceptance    must    be    unconditional:     and  the  note  by  Abbott  in  bis  edition  of  1  Ad» 
See  a  statement  of  tliis  same  rule  in   1  Benja-     dison  on  Cont.  37. 
min  on  Sales,  4th  Am.  ed.,  sec.  38,  and  note; 

1588.  Revocation  of  proposal. 

Sec,  158G.  A  proposal  may  be  revoked  at  any  time  before  its  acceptance  is 
communicated  to  the  proposer,  but  not  afterwards. 

Revoldng  proposal. — That  a  proposal  may  Cont.,  sec.  41;  and  Addison  on  Cont  and  Ben« 
by  rctiacted  before  acceptance,  see  1  Wliart.  on    jamiu  on  Sales,  vbi  supra. 

1587.    Revocation,  how  made. 

Sec.  1587.     A  proposal  is  revoked: 

1.  By  the  communication  of  notice  of  revocation  by  the  proposer  to  the  other 
party,  in  the  manner  prescribed  by  sections  fifteen  hundred  and  eighty-one  and 
fifteen  hundred  and  eighty-three,  before  his  acceptance  has  been  communicated 
to  the  former; 

2.  By  the  lapse  of  the  time  prescribed  in  such  proposal  for  its  acceptance,  or 
if  no  time  is  so  prescribed,  the  lapse  of  a  reasonable  time  without  communica- 
tion of  the  acceptance; 

3.  By  the  failure  of  the  acceptor  to  fulfill  n.  condition  precedent  to  accept-; 
ance;  or, 

4.  By  the  death  or  insanity  of  the  proposer. 

Manner  of  revoldng  proposal. —Subd.  1.  time,  considering  all  the  circnmstances,  works 

To  revoke  by  mail  an  oli'cr  miide  by  letter,  it  is  a  relraction:  Chicago  etc.  /'.  /'.  v.  Dane,  4;>  N. 

not  suiricieiit  to   mail   such   revocation  before  Y.  240;  ./add  v.  Dai/,  HO  low  a,  247;  Mr'iny. 

the   notiiication   of  acceptance   is   received  or  Bluck,  21  Ala.  721;  Maxle//  v.  Maxley,  2  Aleto.., 

mailed;  the  letter  of  revocation  docs  not  take  (Ky.)3)9. 

etl'ect  until  it  has  been  received:  See  Abbott's         Subd.  4.     Death  or  insanity  of  tiio  pi-oposer 

note,  1  Adlison  on  Cont.  43.     See  t'.ie  articles  before  acceptance  revokes  t!io  projiosid:  j'ratt 

above  referred  to  in  note  to  sec.  loS3.  v.  Triistie-f,  93  III.  473;  'J'he  I^(d  >  A'to,  Daveis, 

Subd.  2.     If  no  time  for  acceptance  be  pre-  343;  sec  Browne  v.   MrDo  ndd,   129  Masia.  06, 

scribed,  a  failure  tj  accept  within  a  reasonable  and  Scruggs  v.  Alexander,  72  Ido.  134. 

1583.    Ratification  of  contract  void  fir  want  of  consent. 

Sec,  1588.  A  contract  which  is  voidable  solely  for  want  of  due  consent  may 
be  ratified  by  a  subsequent  consent. 

1589.  Assumption  of  obligniion  by  acceptance  of  benefits. 

Sec  1589.  A  voluntaiy  acceptance  of  the  bsnefit  of  a  transaction  is  equivalent 
to  a  consent  to  all  the  obligations  arising  ivoin  it,  so  far  as  the  factii  are  kuowu, 
or  ought  to  be  known,  to  the  person  accepting. 

29S 


Title  I,  Chaf.  V.]  CONSIDERATION.  §§  1595-1605 

CHAPTER  IV. 

OBJECT  OF  A  CONTRACT. 

1595.  Object,  what. 

Sec.  1505.  The  object  of  a  contrixct  is  the  thing  which  it  is  agreed,  on  the 
part  of  the  party  receiving  the  consideration,  to  do  or  not  to  do. 

Object  of  coatraot:  See  the  statement  of        Unlawfal  contraots:  See  next  section,  and 
the  comiiiissioufr.s  in  regaril  to  the  adoption  of     sees.  lGu7  et  seq.,  jiost. 
the  term  "object,"  in  tlie  note  to  section  looO.        Uulavyful  coudidons:  See  ante,  sec  1441. 

1596.  It('qiiliiUf's  of  object. 

Sec.  159G.  The  object  of  a  contract  must  be  lawful  when  the  contract  is 
made,  and  possible  and  ascertainable  by  the  time  the  contract  is  to  be  per- 
formed. 

See  po.s^  sees.  1GG7  et  seq.  chapter  5  [sees.   1G05  et  seq.]  of  this  title:" 

•'For  a  delinitiou  of  the  word  'lawful,' see    Comniissiouera' reference. 

1597.  Inipossihil'dy,  ivhat. 

Sec.  1597.  Everything  is  deemed  possible  except  that  which  is  impossible  in 
the  nature  of  things. 

1593.  When  contract  wholbj  void. 

Sec.  1598.  Where  a  contract  has  but  a  single  object,  and  sucb  object  is 
unlawful,  whether  in  whole  or  in  part,  or  wholly  impossible  of  loerforinance,  or 
so  vaguely  expressed  as  to  be  wholly  unascertainable,  the  entire  contract  is 
void. 

1593.    When  contract  partialhj  void. 

Sec  1599.     Where  a  contract  has  several  distinct  objects,  of  which  one  at 

least  is  lawful,  and  one  at  least  is  unlawful,  in  whole  or  in  part,  the  contract  is 

void   as  to  the  latter,  aud  valid  as  to  the  rest. 

Part  good  aud  part  void:  See  as  an  illus-     Norris  v.  Harris^  15  Id.  25G;  ALore  v.  Bennet, 
traticu,  (I'raiificr  v.  Orhjiuai  Empire  M.  d:  M.     40  Id.  254. 
Co.,  59  Cal.  078;  JacLou  v.  Shawl,  20  Id.  272; 


CHAPTER  Y. 

CONSIDERATION. 

1605.    Good  consideration,  what. 

Sec.  1G05.  Any  benefit  conferred,  or  agreed  to  be  conferred,  upon  the  prom- 
isor, by  any  other  person,  to  which  the  promisor  is  not  lawfully  entitled,  or  any 
prejudice  suffered,  or  agreed  to  be  suffered,  by  such  person,  other  thxin  such  a» 
he  is  at  the  time  of  consent  lawfully  bound  to  suffer,  as  an  inducement  to  the 
promisor,  is  a  good  consideration  for  a  promise. 

Consideratiou. — The  following  citations  in  which  the  promisor  is  not  lawfully  entitled:* 
explanation  of  various  clauses  of  the  above  sec-  Sue  Adams  v.  llastinia,  G  Cal.  12, J."  The  fol- 
tion  arc  made  by  thecodecomraissioners:  "  'Any  lowing  cases  afford  illustration  of  what  has  beea 
benefit  coujerred: '  Comstockw  Breed,  12  Cal.  passed  upon  by  the  supreme  court  of  California. 
2SG;  Johiitiou  v.  Til  an,  2  Hill,  GOG;  Oat'ey  v.  as  sufficient  consideration  for  a  promise:  A  chat- 
Boormaii,  27  Wenil.  588;  see  llamillon  ('ol!c;ie  tel  of  any  value  to  either  party:  Cl'jf  rd  v.  Car- 
V.  Stewart,  I  N.  Y.  5S1;  Palmer  \\  North,,  iij  vill,  29  Cal.  589;  assuming  tlic  liability  of  a 
Barb.  282.  It  is  immaterial  whether  the  benefit  surety  on  an  appeal  bond:  ll(jt>l>-<\\  /.»".//',  23  IcL 
is  small  or  great:  llaKjkl  v.  Brooks,  10  Ad.  &  59G;  a  jjromise  by  a  surety  or  iiulorscr  to  tha 
Kl.  .309;  JohiiHton  v.  NiehoIlK,  1  C.  B.  251.  'Or  principal  to  make  the  debt  his  own:  Gladwin  v. 
agreed  to  be  conferred:'  //oin/hlalinifv.  Randen,  Garrison,  13  Id.  330;  subscription  to  promote  a 
25  Barb.  21;  Sat/e  v.  I/aznrd,  6  Id.  179;  Sea-  connnon  object:  Christian  Colte<je.  v.  Ilendtey, 
man  v.  Ihisbrouch,  35  Id.  151 ;  Bri'jrjs  v.  Tidnt-  49  LI.  3 17;  assignment  of  a  right:  McCarthy  v. 
eon,  8  Johns.  304.      '  Upon  the  promisor  by  any     Po//e,  52  Id.  5GI. 

other  person:'  Lawrence  v.  Fox,  2d  N.  Y.  2G8;         l)etri,aent  suffired  hi/  the  prnmixpc.  will  sup* 
Judson  V.  Gray,  17  Uow.   Pr.   289-290.     'To    port  a  promise:  Kelly  v.  Lynch,  22  Cal.  601; 

299 


g§  1G0G-1G08 


CONTr.ACTS. 


[Div.  Ill,  Part  H, 


IVhite  V.  Baxter,  71  N.  Y.  254;  LpvAs  v.  Spii- 
buri/,  74  Kl.  43;);  Uanover  v.  SlUlivU,  31  N.  J. 
L.  54;  JiruiL-ihaio  v.  McLriinjhIin,  39  Mich. 
4S0;  /b.s^r  v.  /'halci/,  3j  Vt.  30;J;    Wa/lcai-^  v. 

Turner,  34  Ai  k.  0J3.  Any  ahantU  nniuiit  of  a 
right  by  llio  promisee  is  sullicieiit  consiileration 
foe  tliu  proiiiisL",  except,  of  course,  iii  the  case 
of  fraud:  Pitt  V.  i.entte,  49  J\Jo.  74;  t'Ltrk  v. 
■St'jouriH'i/,  17  Coiiii.  511;  Buchuuaii  v.  Bank, 
78  111.  509. 

Forbeannice  to  xue. — Forbearing  to  enforce  a 
•claim,  lci;al  or  ccpiitable,  is  a  sutticient  consid- 
eration for  a  promise:  Stewart  v.  MrGa'ui,  1 
€ow.  99;  IVarU  v.  Fri/cr,  19  Wend.  494;  Jlart- 
ford  y«N.  Cj.  v.  O'cM,  97  111.  439.  But  this 
mere  actual  fmbearanco  without  a  promise  to 
.give  it,  without  an  agreement— it  otherwise 
being  an  executed  act — is  not  a  sulBcient  con- 
sideration: Mauler  v.  Churchill,  127  Mass.  31. 
liloreover,  the  agreement  to  forbear  must  be 
for  at  Ic'.st  a  reasonable  time:  Shupf  v.  Gal- 
breath,  32  Pa.  8t.  10;  Boi/d  v.  Freize,  5  Gray, 
■l)o','>;  promi.se  "to  wait  a  wiiile"  is  not  suiBcient: 
Sid  well  V.  Epan.%  21  Am.  Dec.  SS7.  Yet  the 
agreement  need  not  be  for  a  definite  term:  See     , 

1606.    IIow  far  legal  or  moral  obligation  is  a  good  consideration. 

Sec.  IGOG.  Au  existing  legal  obligation  resting  upon  the  promisor,  or  a  moral 
obligation  originating  in  some  benefit  conferred  upon  the  promisor,  or  preju- 
dice suffered  by  the  promisee,  is  also  a  good  consideration  for  a  promise,  to  an 
extent  corresponding  with  the  extent  of  the  obligation,  but  no  f  urthei',  or  other- 
wise. 


the  note  by  Abbott  in  his  edition  of  1  Addi- 
son oil  Cont.  11,  wliere  tlie  {general  sul)jcct 
of  forbearance  aa  a  consideration  is  discussed. 
Promise  to  extend  time  of  payment  of  note  ia 
consideration  of  part  payment  canu(jt  bo  en- 
forced: Lienintj  v.  Gould,  13  Cal.  598;  see  il/c- 
Cann  v.  Lewis,  9  Id.  240. 

Coinjiroiniseti:  See,  with  regard  to  accord 
and  satisfaction,  ante,  sec.  loJi.  Where  the 
rights  of  the  parties  are  di>ul)iful,  ]iromise  of 
part  payment  in  consideration  of  setlleuient  is 
good:  Ricoudlat  v.  Sansccaiii.,  32  C'al.  .■i7G; 
Grans  v.  Hunter,  23  N.  Y.  3^9;  Smith  v.  SmUh, 
3J  Ga.  134;  Allen  v.  Prater,  3D  Ala.  413. 

OJar  of  revT^ard  by  advarti^^emeat,  and 
right  of  person  performing?  service  to  recover: 
See  lijer  v.  Storkwell,  14  Cal.  134,  and  the  note 
in  1  Ail.lison  on  Cont.  24. 

Pr3-G:2lstin2  d3b!;  is  a  sniHcient  considera- 
tion: Davis  V.  Piissell,  52  Oal.  Gil;  Frej/  v. 
Clitford,  41  Id.  335;  Naih'e  v.  Li/nian,  14  Id. 
150;  Robinson  v.  Smith,  Id.  94;  Payne  v.  Bfns- 
ley,  8  Id.  2G0;  Heath  v.  Slluerthorii  L.  M.  Co., 
39  Wis.  14G. 


Moral  obli^atdon. — "The  common  law  does 
not  recognize  mor.d  obligations,  except  in  a  few 
cases,  as  sulHcient  to  sustain  a  ])romise:  Whip- 
ley  V.  Dcicey,  8  Cal.  30;  Nash  v.  Russell,  5 
Barb.  550;  G  '-r  v.  Archer,  2  Id.  420;  li^atLins 
V.  JIaU.'ad,  2  Sandf.  311;  EMe  v.  Judson,  24 
Wend.  97;  Smith  v.  Ware,  13  Johns.  257;  Beau- 
mont V.  Reev.',  8  Q.  B.  4S3;  E  istwood  v.  Kenyan, 
11  Ad.  &  El.  438.  But  see  to  the  contrary: 
Doty  V.  Broivii,  14  Johns.  381;  Lee  v.  Mw/'je- 
ridje,  5  Taunt.  33.  The  autliorities,  however, 
entirely  fail  tn  establish  any  satisfactory  prin- 
ciple upon  wliich  to  distinguish  between  the 
dilfereut  species  of  moral  obligations.  Thus,  in 
Bunn  V.  Wiiithrop,  1  Jolins.  Ch.  329,  past 
Beduction  was  lield  a  good  consideration  to 
support  a  grant.  In  Beaumont  v.  Reeve,  8  Q. 
B.  433,  the  same  consideration  was  held  insulh- 
cient  lo  sup[)ort  a  promise.  In  Gouldintj  v. 
Davidson,  28  Barb.  438,  it  is  said  that  there 
must  have  been,  at  some  time,  an  actual  legal 
obligation.  Yet  in  JHce  v.  Welliny,  5  Wend. 
59'>,  and  Early  v.  Mahon,  19  Johns.  147,  the 
original  contract  was  usurious,  and  therefore 
void  from  tiie  beginning.  The  same  may  be 
said  of  ]-)ro:iiises  to  pay  debts  contracted  in 
infancy,  which  are  lield  valid.  Gonldimj  v. 
Daoidsoii,  was  reversed:  20  N.  Y.  004.  The 
rule  stated  in  tlie  text  seems  to  be  just,  and  to 
be,  on  the  wliole,  as  easily   reconcilable  with 

1607.  Consideration  lawful. 

Sec.  1G07.     The  consideration  of  a  contractmust  be  lawful  within  the  meaning 
of  section  sixteen  hundred  and  sixtj'-seven. 

Illegal  considsration:  See  unlawful  contracts,  sec.  1GG7,  post. 

1608.  EJhd  of  its  illegality. 

Sec.  1GG8.    If  any  part  of  a  single  consideration  for  one  or  more  objects,  or  of 
BBveral  considerations  for  a  single  object,  ia  unlawful,  the  entire  contract  is  void. 

300 


the  authorities  as  any  other  that  can  be  devised. 
'  To  an  extent  corresponding  with  the  extent  of 
tlie  obligation,  but  no  furUier  or  otherwise:* 
See  Phef.i^'placev.  Sterre,  2  Joiins.  442;  Ro^corlo 
V.  Thomas,  3  Q.  B.  234;  Hopkins  v.  Lmjan,  5 
Mee.  &  W.  247;  Knye  v.  D niton,  8  Scott  N.  R. 
49"),  502;  S.  C,  Ray  v.  Datlon,  7  Man.  &  G. 
807;  Elderton  v.  Emmens,  G  C.  B.  100;  13  Id. 
4J5:"  Commissioners'  note. 

In  adilitiou  to  what  is  alio ve  stated,  reference 
may  be  had  to  the  following  authorities  in  sup- 
port iif  the  rule  that  to  make  a  m')ral  obligation 
a  sufficient  consideration  for  a  promise  it  must 
be  founded  upon  some  prior  obligation:  Cook 
v.  Bradliy,  7  Conn.  57;  S.  C,  18  Am.  Dec.  79; 
Loomis  V.  Xewhad,  15  Pick.  I.i9;  JIaw'ey  v. 
Farrar,  1  Vt.  420.  Illustration  of  the  same 
principle  may  be  found  ia  the  cases  turning 
u[)on  the  suIHcieney  of  a  promise  to  pay  a  debt 
discharged  in  bankruptcy:  See  the  note  to 
Eiirnest  v.  Parke,  27  Am.  Dec.  280;  sue  also 
1  Addison  on  Cont.  10,  Abbott's  note.  The 
moral  obligation  resting  upon  a  woman  to  make 
good  a  promise  given  during  coverttire  is  not 
a  suliieient  consideration  to  uphol  I  an  affirma- 
tion of  the  promise  mide  after  the  di.sabdity 
ceases:  Musik  v.  Dod-oa,  73  Mo.  0J4,  where 
the  promise  was  to  an  attorney  for  his  fee  oa 
procuring  a  divorce. 


Title  I,  Chap.  V.]  CONSIDERATION.  §§  1609-1615 

"  This  principle  is  deducible  from  all  the  Barb.  474;   TPose  v.  Trunx,  21  I<1.  301 ;    Pppper 

casrs  talcLU  tos^cLlier,  though  not  to  l)e  loiiiid  v.  ilaiijlil,  20  Id.  429;   Barton  v.  Port  Jar kxnn 

tlm-s  stateil  in  any  one  case.     Thus,  there  is  no  Phiiik  Ihmd,  17  Id.  397;  Uvrl  v.  Plart>,  8  Cow, 

doubt  that  if  t'.i'  consideration  is  single,  or  in  431;  see  iiroirn  v.  Brown,  34  Darl).  533;   Porter 

other  words  indivisible,  its  partial  illegality  is  v.  Ilaoi'iis,  37  Id.  343.     The  limitations  of  the 

fatal  to  the  contract:  See  Valentine  v.  Sffirttrt,  rules  are  conformable  to  the  principle  of  sees. 

15  Cal.  3S7:    IJasL-f/l  v.  ilrllenrii,  4  Id.  411;  773,  779:"  Comniissioners' note. 
Norrla  v.  JIurru,  15  Id.  226;  MilU  v.  ilillg,  3li 

1609.  CovHideratlon  executed  or  executory. 

Sec.  1G09,  A  consideration  may  be  executed  or  executory,  in  wbole  or  in 
part.  In  so  far  as  it  is  executory,  it  is  subject  to  the  provisions  of  Chapter  IV. 
of  this  title. 

1610.  Executory  consideration. 

Sec.  IGIO.  When  a  consideration  is  executory,  it  is  not  indispensable  that 
the  contract  should  specify  its  amount  or  the  means  of  ascertaining^  it.  It  may 
be  left  to  the  decision  of  a  third  person,  or  regulated  by  any  specified  standard. 

1611.  Hoio  ascertained. 

Sec.  IGll.  When  a  contract  does  not  determine  the  amount  of  the  consid- 
eration, nor  the  method  by  which  it  is  to  be  ascertained,  or  when  it  leaves  the 
amount  thereof  to  the  discretion  of  an  interested  party,  the  consideration  must 
be  so  much  money  as  the  object  of  the  contract  is  reasonably  worth. 

See  the  following  sections  and  notes, 

1612.  Eff'eci  of  impossibility  of  ascertaining  consideration. 

Sec.  1G12.  Where  a  contract  provides  an  exclusive  method  by  which  its 
consideration  is  to  be  ascertained,  which  method  is  on  its  face  impossible  of 
execution,  the  entire  contract  is  void. 

1613.  Same. 

Sec.  1G13.  Where  a  contract  provides  an  exclusive  method  by  which  its  con- 
sideration is  to  be  ascertained,  which  method  appears  possible  on  its  face,  but 
in  fact  is,  or  becomes,  impossible  of  execution,  such  provision  only  is  void. 

1614.  Written  iiistncment  presumptive  evidence  of  consideration. 

Sec  1G14.     A  written  instrument  is  presumptive  evidence  of  a  consideration. 

■Writing  imports  consideration:  Pifj^-i  v.  sideration  of  a  sealed  bond  may  be  impeached: 

Waldo,  2  Cal.  4Sr>:  Stewart  v.  Slntt,  10  Id.  372;  Conutork  v.  Breed,  12  Id.  28G. 

Syyar  v.  Want,  20  Id.  659.   It  is  only  prcsump-  Reoital  of  a  nominal  oousideratfon  may 

live,  however,  and  may  be  iiiquireil  into:  FlJier  be  controlled  in  equity  and  the  instrument  an- 

V.  Salninv,  1   Id.  413;  Colea  v.  S'>ittsb>j,  21   Id.  nulled:  Wkinl  v.  Brown,  59  Cal.  194. 

47;  Bnineit  \.  Sulomon,  6  Id.  131.     At  cum-  Distiuotion  between  sealed  and  unsealed 

mon  law  a  want  of  consideration  could  not  be  instruments  abolished:   See  itost,  sec.  1G29. 

pleaded  to  a  suit  on  a  scaled  instrument,  the  Repeating  consideration — In  drawing  in- 

jiresuniption  of  consideration  being  conclusive,  strnments  of  any  kind  where  a  consideration 

The  law  of  this  state  modified  the  rule  so  far  is  essential,  it  is  not  necessary,  nor  is  it  the 

as  to  allou-  it  to   \>q  rebutted  in  the  answer:  practice,  to  repeat  the  consideration  upon  the 

McCartu  v.  Beach,  10  Id.  401;  Wdls  v.  Kempt,  insertion  of  every  several  promise  or  covenant: 

17  Id.  98.     The  unmeaning  distinction  between  the  mention  of  it  once  is  generally  considered 

sealeil    and   unsealed    instrument    being  <lone  suUicient:  lirickell  v.  JJalchelder,  62  Gxl.  023. 
aw  y  with  by  statute,  sec.  1G29,  post,  the  cou- 

1615.  Burden  of  proof  to  invalidate  sufficient  consideration. 

Sec.  1GI5.     The  burden  of  showing  a  want  of  consideration  sufficient  to  sup- 
port an  instrument  lies  with  the  party  seeking  to  invalidate  or  avoid  it. 
See  note  to  sec.  1C14,  ncpra. 

301 


§§  1619-1C24  CONTRACTS.  IDiv.  IH,  Pabt  n. 


TITLE  II. 
MANNER  OF  CREATING  CONTRACTS. 

1619.  Confracfs,  express  or  implied. 

Sec.  1G19.     A  contract  is  either  express  or  implied. 

1620.  Express  contract,  what. 

Sec.  1G20.    An  express  contract  is  one  the  terms  of  which  are  stated  in  words. 

See  Smith  v.  Moyuihan,  44  Cal.  53,  for  a  statement  of  the  distinction  between  an  express  and 
an  imjjlietl  contract. 

1621.  Implied  contract,  what. 

Sec.  1G21.     An  implied  contract  is  one  the  existence  and  terms  of  which  are 

manifested  by  conduct. 

Implied  contracts. — "The  ordinary  defini-  sidered  in  another  part  of  the  code:"  Commis- 

tion  of  an  implied  contract  inchides  obligations  sioners'  statement. 

imposed  hy  law  upon  parties,  as  between  each  Obligations  imposed  by  law:   Sec.  1708, 

other.     These  obligations  are,  however,  con-  post. 

1622.  Y/hal  contracts  may  be  oral. 

Sec.  1G22.     All  contracts  may  be  oral,  except  such  as  are  specially  required  by 

statute  to  be  in  writincf. 

Contracts,  when  to  be  in  writing:  See  raised  where  a  contract  haA  under  the  statute 
infra,  sees.  102;^,  iri24;  Code  Civ.  Proc,  sees,  of  fraud  has  been  executed:  See  2  Wiiart.  on 
1071-1974.     Tliat  an  implied  promise  may  be     Con t.,  sec.  711. 

1623.  Contract  not  in  writing  through  fraud  may  be  enforced  against  fraudulent 
party. 

Sec.  1G23.  Where  a  contract,  which  is  required  by  law  to  be  in  writing,  is 
prevented  from  being  put  into  writing  by  the  fraud  of  a  party  thereto,  any  other 
party  who  is  by  such  fraud  led  to  believe  that  it  is  in  writing,  and  acts  upon 
such  belief  to  his  prejudice,  may  enforce  it  against  the  fraudulent  party. 

1624.  What  contracts  must  be  written. 

Sec.  1GJ4.  The  following  contracts  are  invalid,  unless  the  same,  or  some 
note  or  memorandum  thereof,  be  in  writing,  and  subscribed  by  the  party  to  be 
charged,  or  by  his  agent: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed  within  a  year  from 
the  making  thereof; 

2.  A  special  promise  to  answer  for  the  debt,  default,  or  miscarriage  of  another, 
except  in  the  cases  provided  for  in  section  twenty-seven  hundred  and  ninety- 
four  of  tliis  code; 

3.  An  agreement,  made  upon  consideration  of  marriage,  other  than  a  mutual 
promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things  in  action,  at  a  price 
not  less  than  two  hundred  dollars,  unless  the  buyer  accept  or  receive  part  of 
such  goods  and  chattels,  or  the  evidences,  or  some  of  them,  of  such  things  in 
action,  or  pay  at  the  time  some  part  of  the  purchase  money;  but  when  a  sale  is 
made  at  auction,  an  entry  by  the  auctioneer  in  his  sale-book,  at  the  time  of  the 
sale,  of  the  kinds  of  property  sold,  the  terms  of  the  sale,  the  price,  and  the 
names  of  the  purchaser  and  person  on  whose  account  the-saleismade,  is  a  suffi- 
cient memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period  than  one  year,  or  for  the 
sale  of  real  property,  or  for  an  interest  therein;  and  such  agreement,  if  made 

302 


TnxE  H.] 


MANNER  OF  CREATING  CONTRACTS. 


§1624 


by  an  agent  of  the  party  sought  to  be  charged,  is  invalid,  unless  the  authority 

of  the  agent  be  in  writing,  subscribed  by  the  party  sought  to  be  charged; 

6.  An  agreement  authorizing  or  employing  an  agent  or  broker  to  purchaseor 

sell  real  estate  for  compensation  or  a  commission.     [Amendment,  approved  March 

9,  1878;  Amendments  1877-8,  8G;  took  effect  sixtieth  day  after  passage.] 

Statute  of  fraud3.--The  sixth  subdivision 
•was  i.dJed  by  tlie  amendment  of  1S78.  Prior  to 
that  time,  in  \b~i\,  tlie  section  which,  as  origi- 


nally passed,  contained  but  the  first  and  third 
subdivisions,  was  amended  so  as  to  embrace  the 
first  five  subdivisions.  This  action  was  taken 
at  the  recommeudition  of  the  code  examiners, 
who  said:  "Tlie  section,  as  amended,  is  simi- 
lar to  section  1973  of  the  Code  of  Civil  Pro- 
cedure. The  proper  place  for  its  provisions  is 
here,  and  sliould  tliis  amendment  be  adopted, 
the  corresponding  section  in  the  Code  of  Civil 
Procedure  ndgiit  as  well  be  repealed." 

The  note  or  memorandum. — "The  con- 
eideration  is  no  longer  necessary  to  be  stated, 
thus  clianging  the  law  heretofore  existing  in  this 
state:"  Comiuiss-ioners'note.     The  same  idea  is 


agent,  containing  the  names  of  the  parties  and 
a  summary  statement  of  the  terms,  either  ex- 
pressly or  by  reference  to  something  else,  is  all 
that  is  required.  It  may  be  less  specitic  than 
the  contract  itself. 

The  memorandum  must  embrace  the  sub- 
stance of  the  contract,  Ijiit  need  not  describe 
the  terms  in  detail:  hsi  v.  llamrd,  4  R.  I.  14; 
and  see  Pomeroy's  Spec.  Perf.  Cent.,  sec.  85, 
and  note. 

Subd.  1.  Agreements  not  to  be  per- 
fonned  •ro-itliin  a  year — This  clause  declares 
invalid  agreements  that  by  their  terms  disclose 
that  it  was  the  intention  of  the  parties  that 
they  should  not  be  executed  within  a  year.  If 
from  the  nature  of  things  it  is  manifest  that 
the  parties  must  have  contemplated  perform- 


carried  into  the  written  evidence  of  guaranty:    ance  after  the  expiration  of  a  year,  the  agree 
<-,  ^-oo         .  ment  is  within  the  statute.     For  example,  a 

verbal  agreement  to  cut  and  deliver  saw-loga 
sufficient  to  keep  the  defendant's  mill  running 
at  its  full  cr.pacity  for  two  years:  Patten  v. 
llkhs,  43  Cal.  509;  or  a  verbal  contract  for  the 
loan  of  money  to  be  repaid  when  nut-bearing 
trees,  about  to  be  planted,  yield  a  sufficient  in- 
come: Swift  V.  Siri/t,  40  Id.  2(j6. 

When  a  verbal  contract  of  partnership  for 
more  than  a  year  is  acted  upon,  neither  party 
can  avoid  the  obligations  of  tiie  contract  as  to 
past  transactions  under  it,  on  the  ground  that 
the  contract  was  void,  as  being  within  this 
provision  of  the  statute:  Pico  v.  Cuyas,  47  Id. 
174;  and  see  also  Jloare  v.  JJindley,  49  Id, 
274. 

For  discussions  of  this  provision  of  the  stat- 
ute, see  Browne  on  Stat,  of  Frauds,  sees.  272  et 
seq.;  and  a  note  by  E.  H.  Bennett  in  18  Am. 
L.  Reg.,  N.  S.,  558. 

Subd.  2.  Guaranty:  See  post,  sec.  2793, 
and  note. 

Subd.  3.  In  consideration  of  marriage. 
A  promise  to  marry  not  to  bo  performed 
within  a  year,  wliile  valid  under  subdivision 
3.  yet  is  invalid  under  subdivision  1:  See 
irimnn  v.  Mei/er,  25  Alb.  L.  J.  408  (U.  S.  Dis. 
Ct.  S.  D.  N.  Y.,  Jan.  1882);  citing  Derby  v. 
Pkel/'H,  2  N.  11.  515;  JVichol-i  v.  Weaver,  7  Kan. 
37.0;  l.nwrence  v.  CooJce,  5G  Me.  193. 

Subd.  4.  Sales  of  personalty:  See  sec. 
1739,  pi'st,  and  note. 

Auction  sabs. — Memorandum  must  be  made 
at  the  time  of  the  sale:  Crairj  v.  Oot/froy,  1  Cal. 
415.  Auction  sales,  except  sucli  as  are  held  by 
order  of  court,  are  within  the  statute:  l/alleck 
v.  Guy,  9  Id.  181;  People  v.  iVhite,  C  Id.  75; 
see  ]>o/it,  sec.  1798. 

See  Sheldon's  Am.  ed.  of  Bateman  on  Ace- 
tions,  sees.  143  et  seq.,  for  valuable  informa- 
tion on  this  branch  of  tlie  statute  of  frauds. 

Subd.  5.  Agent,  how  appointed:  See 
8upra\n  this  note,  and  poxt,  sec.  1741.  and  note. 

Subd.  6.  Employing  real  estate  agent. 
In  McCarthy  v.  Loupe,  ti2  Cal.  299,  an  action 
was  brou^;ht  to  recover  the  value  of  services  ren- 
dered by  a  real  estate  broker  in  cITcctiug  a  sale 
of  land  where  there  was  no  sucli  writing  as  is 
specilied  in  this  section.     The  right  to  recover 


See  sec.  2793,  pod. 

The  change  from  the  original  statuteof  frauds, 
29  Car.  1.,  c.  3,  sec.  4,  with  respect  to  the 
signature,  from  the  word  "signed"  to  "sub- 
scribed" has  removed  much  of  the  perplexity  in 
detei  mining  Nvhat  is  a  signing,  and  made  it 
plain  that  to  conform  to  tlie  altered  require- 
mento  the  signature  is  to  be  placed  at  the  foot 
of  the  memorandum:  Merritt  v.  Claxon,  12 
Johns.  102;  Connnoinvsallti  v.  Bay,  3  Gray,  447; 
Lenifd  v.  IVauuemache,  9  Allen,  412;  JJoard- 
tnanw  Spooner,  13  Id.  353. 

Tiie  statute  lequires  that  only  the  party  to 
be  charged  should  subscribe;  therefore,  so  far 
as  the  Statute  of  frauds  is  concerned,  both  par- 
ties need  not  subscribe:  Rulenberg  v.  Main,  47 
Cal.  213;  ^csv/a'/  v.  Holt,  37  Id.  250;  Va-^midt 
V.  Edwards,  43  II.  458;  Ballard  v.  Wa'ker,  3 
Johns.  Cas.  GO;  Ilfjet  v.  Merritt,  2  Cai.  117; 
Justice  V.  Lau(i,  42  N.  Y.  493;  Estes  v.  Fitrhuq, 
59  111.  302;  'Oomjlass  v.  Spexrs,  2  Nott  '& 
M.  2G7;  Old  Colony  R.  II.  v.  Evans,  G  Gr.ay, 
25;  Barnard  v.  Lee,  97  Mass.  92;  Tripj)  v. 
Bishop,  53  Pa.  t^t.  428. 

"The  names  c.f  all  the  parties  must  be  stated 
in  the  memorandum: "  Commissioners'  note, 
citing  WiWum^x.  Lake,  2  El.  &  El.  .349. 

The  subscribing  may  be  done  by  the  agent  of 
tho  i>.:rty  to  be  charged.  But  tlie  statute  ex- 
pressly requires,  in  subdivision  5,  that  t!ie  au- 
thoriiy  to  subscribe  the  principal's  nrmc  to 
agreements  for  the  leasing  and  sale  of  real  prop- 
erty must  be  in  writing.  And  see  po4,  sec. 
174 1 .  In  the  absence  of  such  statutory  require- 
ment, the  agent's  authority  in  such  cases  may 
be  given  verbal'.j":  Ratenberg  v.  Main,  47  Cal. 
213.  Tiie  authority  to  execute  the  conveyance 
must  be  in  writing:  Hoen  v.  Simons,  1  Id.  119; 
Tohl<'r  V.  Fol-om,  Id.  207;  Videauv.  Griffin,  21 
Id.  3S9;  McLnri-n  v.  Hutchinson,  22  Id.  187; 
Bayles  V.  Bajffr,  22  Id.  575;  Millard  v.  I  lath- 
awai/,  27  I<1  119;  so  also  as  to  a  lease :  Folsom 
V,  Perrin,  2  Id.  003. 

With  respect  to  the  contents  of  the  memo- 
randum. Judge  Sanderson,  in  Joseph  v.  Holt,  37 
Cal.  250,  succinctly  states  the  essential  elements 
in  conformity  to  the  general  acceptation,  lie 
says,  iu  substance,  that  a  note  or  memorandum 
Bubacribed  by  the  party  to  be  charged  or  by  his 


303 


§§  1625-1637  CONTRACTS.  Piv.  Ill,  Part  II, 

was  based  on  the  implied  CT-wMm/^siV  arising  out  Sales  of  personalty:  See  post,  sees.   1739 

of  the  benefit  doiived  by  tlie  defendant  from  etsi.M|. 

the  plaintitrs  services.     The  contention,  how-  Guaranty:  Sec  po'<t,  sees.  27S7,  270.3  ct  serj. 

ever,  was  not  sustained.  Part    perforinance  taking  case    out   of 

Fraudulent  transfers:  See  post,  sees.  3439  statute:  Sc-e  post,  sec.  1741. 
et  seq. 

1625.  Effect  of  wriling. 

Sec.  1G2o.  The  execution  of  a  contract  in  writing',  wlietber  the  law  requires 
it  to  be  written  or  not,  supersedes  all  the  oral  nejjotiations  or  stipulations  con- 
cerningf  its  matter  which  preceded  or  accompanied  the  execution  of  the  instru- 
ment. 

Writins  supersedes  oralstipiaations:  Seepos«,  sec  1G39,  and  note;  Jungerman  v.  Bovee,  19 
Cal.  oo4;   Uoldmnit  v.  Dads,  23  Id.  236. 

1626.  Contract  in  writing  takes  effect,  when. 

Sec.  1G2G.     A  contract  in  writing  takes  effect  upon  its  delivery  to  the  party 

in  whose  favor  it  is  made,  or  to  his  agent. 

Deed  takes  eflect  from  delivery:   £>;,fio:i        Delivery  of  transfers  in  writins:  See,  gen- 
BraiUiiaw,  23  Cal.  5JS;  Uarr  v.  Schroeder,  32     erally,  aide,  sec.  10J4. 
Id.  610;  radi  V.  Bunch,  30  Id.  203. 

1627.  Provisions  of  chapter  on  transfeis  of  real  property. 

Sec.  1G27.     The  provisions  of  the  chapter  on  transfers  in  general,  concerning 
the  delivery  of  grants,  absolute  and  conditional,  ajDply  to  all  written  contracts. 
See  ante,  sees.  1032  et  seq. 

1628.  Corporate  seal,  how  affixed. 

Sec  1G28.     A  corj)orate  or  official  seal  may  be  affixed  to  an  instrument  by  a 
mere  impression  upon  the  paper  or  other  material  on  which  such  instrument  is 
written. 
See  Code  Civ.  Proc,  sec.  14;  Pol.  Code,  sec,  14. 

1629.  Provisions  abolishing  seals  made  applicable^ 

Sec.  1029.  All  distinctions  between  sealed  and  unsealed  in.strument3  ate 
abolished. 


TITLE  III. 
INTERPRETATION  OF  CONTRACTS. 

1635.  Uniformity  of  interpretation. 

Sec.  1035.    All  contracts,  whether  public  or  private,  are  to  be  interpreted  by 
the  same  rules,  except  as  otherwise  provided  by  this  code. 

1636.  Contracts,  how  to  be  interpreted. 

Sec.  13GG.     A  contract  must  be  so  interpreted  as  to  give  effect  to  the  mutual 

intention  of  the  parties  as  it  existed  at  the  time  of  contracting,  so  far  as  the 

same  is  ascertainable  and  lawful. 

Intention  of  parties.  —The  intention  of  botli  v.  Crandal,  3 1  Id.  334;  lia'-ouillat  v.  Smixevain, 

parties  at  tlie  time  of  contracting  is  to  be  ascer-  32  M.  370;  S-uiiiders  v.  Clark,  20  M.  200. 
taiued,  and  if  liwfid,  is  to  govern:  C'aUakaiiv.         Parol  evidence  to  prove  iuteudoa:   Seo 

Stanley,  57  Cal.  470;   Reedij  v.  Sm'dh,  42  Id.  Code  Civ.  Proc,  sees.  1855  et  seq. 
243;    Thomp>ion  v.  AIcKay,  41  Id.  221;   Piercy 

1637.  Intention  of  parties,  how  ascertained. 

Sec.  1G87.     For  the  pui-pose  of  ascertaining  the  intention  of  the  parties  to  a 
contract,  if  otherwise  doubtful,  the  rules  given  in  this  chapter  are  to  be  applied. 
Parol  evidence  with  respect  to  writinss:  See  Code  Civ.  Proc,  sees.  1855,  1856,  et  acq. 

304 


Tttlk  III-l 


INTERPRETATION  OF  CONTRACTS. 


§§  163S-1642 


1638.    Intenticm  to  be  ascertained  from  language. 

Sec.  1C38.     The  language  of  a  contract  is  to  govern  its  interpretation,  if  the 
language  is  clear  and  explicit,  and  does  not  involve  an  absurdity. 


Language  of  the  contract. — Where  tho 
language  ot  a  contract  is  not  ambiguous,  the 
rule  ii  imperative  to  follow  the  language  em- 
ployed in  its  interjiretation:  Ilawleyv.  Bruma- 
giin,  33  Cal.  391.  Where  a  contract  has  been 
reduced  to  writing,  the  language,  if  luciil,  is 
the   best  evidence   of  the   intent:    Norton   v. 


Woodruff,  2  N.  Y.  339;  Buck  v.  Burl;  18  Id. 
333;  Drnt  v.  N.  A.  Steaimh'ip  Co.,  49  Id.  390; 
Wa'rous  v.  McKir,  54  Tex.  Go;  Wallcrw  Tuck- 
er, 70111.  527;  Robh  v.  Bancroft,  13  Kan.  123; 
Jeffrey  v.  Grant,  37  Me.  236.  That  language 
involviug  an  absurdity  may  be  disregarded, 
see  Frankel  v.  Sltmy  44  Cal.  1C8. 


1639.    Interpret  a  f  ion  of  loritlen  contracts. 

Sec  1369.  "When  a  contract  is  reduced  to  writing,  the  intention  of  the  par- 
ties is  to  be  ascertained  from  the  writing  alone,  if  posaiblej  subject,  however, 
to  the  other  provisions  of  this  title. 

See  note  to  previous  section.  See  Code  Civ.  Proc.,, sees.  1855  et  seqj  see  also 

Parol  evidence  in  construing  writings;,  post,  sec.  1CS9. 


1640.    Wriiing,  ivhen  disregarded. 

Sec  1040.     When,  through  fraud,  mistake,  or  accident,  a.  written  contract' 

fails  to  express  the  real  intention  of  the  parties,  such  intention  is  to  be  regarded,, 

and  the  erroneous  parts  of  the  writing  disregarded. 

"Writins  not  expressing  intention  through 
fraud,  aocideat,  or  mistal^e. — In  sucli  a  case 
the  intention  may  be  ascertained  by  means  of 
jparol  evidence.  Thus  parol  testimony  is  admis- 
sible to  sliow  that  through  fraud  an  instrument 


in  wriiing  does  not  express  tho  intention  of 
the  parties:  CoileCiv.  Proc,  sec.  1850;  Murray 
V.  Duke,  43  Cal.  044;  or  that  it  was  procured 
or  influenced  by  fraud  or  misrepi-esentation: 
Meyer  V.  lluneke,  55  N.  Y.  412;  McLean  v. 
Cfci/i-,  47  Oa.  24;  Grlder  v.  Clo/don,  27  Ark. 
244;  Cook  v.  Moon^  39  Tex.  255;  Burtwrs  v. 
Keran,   24    Gratt.   42.     So  also   mistakes   in 


writing  are,  under  certain  circmnsrtances,  sus- 
ceptible of  correction  by  parol:  Murrtiy  v. 
Dale,  swpra. 

For  a  classification  of  the  various  oases  in 
which  parol  evidence  has  been  admitted  to 
vary  tho  apparent  meaning  of  a  written  instru- 
ment— inflict,  for  a  cousidoration  of  ihc  general 
rule  regarding  parol  evidence  in  the  interpreta- 
tions of  writings — see  Chamberlaync's  notes  to 
the  7th  Am,  od.  of  Best  on  Ev.,  sec.  2J9;  and 
see  also  2  Ponieruy's  Eq.  Jur.,  sees.  857  et  seq.; 
see,  further.  Code  Civ.  Proc.,  sec.  1856. 


1641.    Effect  to  he  given  to  every  part  of  contract. 

Sec  1G41.  The  whole  of  a  contract  is  to  be  taken  together,  so  as  to  give 
effect  to  every  part,  if  reasonably  practicable,  each  clause  helping  to  interpret 
the  other. 


The  whole  contract  is  to  be  considered  in 

arriving  at  tlie  intention  of  the  parties:  Frankel 
v.  Stern,  44  Cal.  104;  Brickell  v.  Batchcld'^r,  Q2 
Id.  0J3,  0.51.  Ail  the  provisions  must  bo  read 
together:  IlamlUou  v.  Taylor,  18  N.  Y.  358; 
Ward  V.  WhUn^-y,  8  Id.  442;  h'oxe  v.  Roberts,  9' 
Minn.  1 19;  Goosey  v.  Gooaey,  48  Miss.  210;  and 
the  various  clauses  shouUl  be  read  in  subordi- 
nation to  the  general  purpose:  Decktr  v.  Fur- 

1642.   Several  contracts  when  taken  together. 

Sec  1G42.  Saveral  contracts  relating  to  the  same  matters,  betwosn  tho  same 
parties,  and  made  as  parts  of  substantially  one  transaction,  are  to  be  taken 
tosrether. 


niss,  14  N.  Y.  Gil?  and  see  ivfra,  sec.  1050. 
Words  which  are  wholly  inconsistent  with  th» 
main  intention  cf  the  parties  are  to  be  rejected: 
See  iii/ni,  soc.  1053;  and  see  sec.  1052,  for  re- 
pugnancy in  contracts.  Tiie  design  should  bo 
to  give  effect  to  all  t!ie  parts  of  a  contract  if 
possible:  Micklc  v.  Sanchez,  1  Cal.  200;  Fi-ankel 
v.  Stern,  supra. 


Several  contracts  to  be  taken  together. 
It  is  a  well-recognized  rule  that  several  writ- 
ings torming  part  of  one  transaction  should 
be  read  together:  Brickell  v.  Batchelder,  02 
Cal.  023;  ImjokUby  v.  Juan,  12  Id.  504;  and 
Bee  Lockicood  v.  Canfield,  20  Id.  120;  IV;-- 
tan  v.  McGrrrjor,  23  Id.  339.  So  also  Wrhjht 
V.  Dow/Uuis,  7  N.  Y.  504;  JIuttemeicr  v.  Albro, 
18  Id.  48;  Cknrrk  v.  Brown,  21  Id.  315;  Dean 
V.  Lawhav,  7  Or.  422;  Byrne,  v.  MarsliaU, 
44  Ala.  355;  Wallis   v.  Beauchamp,   15  Tex, 

Civ.  Code— 20  303 


333.  This  may  be  done  notwithstanding  tho 
writings  were  made  at  <lifferent  times;  Bran- 
dreth  v.  Sanforl,  I  Diier,  39J;  Stacey  v.  Ran' 
d:i'l,  17  I11."4J7;  Adam-<i  v.  IIUl,  10  .Me.  215. 
For  i. lustration  of  a  number  of  letters  be- 
ing taken  to, 'ether  in  forming  a  contract,  sco 
Bl/if  V.  ( •rairford,  39  Cal.  523;  Smith  v.  Bell, 
30  Ga.  919;  .s7/-o«7  v.  Cat  in,  35  Ala.  007; 
Quincy  Bank  v.  Hail,  101  U.  S.  43;  Washburn 
V.  Fletcher,  42  Wis.  152. 


g§  1643-1646 


CONTRACTS. 


[Div.  ni,  Part  EE, 


1643.   Interpretation  in  favor  of  contract. 

Sec.  1G43.  A  contract  must  receive  such  an  interpretation  as  'nriH  make  it 
lawful,  operative,  definite,  reasonable,  and  capable  of  being  carried  into  effect, 
if  it  can  be  done  without  violating  the  intention  of  the  parties. 

"Where  a  contract  admits  of  two  constructions, 
one   of  which  nullifies  the  contract  and  the 


other  upholds  it,  the  former  must  1:«3  discarded, 
and  the  latter  adopted;  for  tliere  is  no  pre- 
sumption against  the  validity  of  contracts,  and 
it  is  not  to  be  presumed  that  parties  deliber- 
ately enter  into  an  agreement  which  calls  for 
an  impossible  condition  or  event  as  a  test  of 
performance: "  Saundtrs  y.  Clark,  29  Gal.  299, 
305. 


.  Contracts  to  bs  g^ven  operative  and  law- 
ful construction. — That  view  of  the  contract 
which  \vi;i  make  it  operative  is  preferable  to 
that  which  will  not:  Up  Dunkerson,  4  Biss.  227; 
Brown  V.  Slater,  16  Conn.  192;  Morancy  v. 
DiimeimiU  o  La.  Ann.  363;  and  that  construc- 
tion is  to  be  given  it  which  will  make  it  law- 
ful, rather  than  one  which  will  make  it  invalid: 
Coyne  v.  Weaver,  84  N.  Y,  3SG;  Lesdey  v, 
Phipp.%  49  Miss.  790;  Merrill  v.  Melchior,  39 
Id.   51G;    Chittenden  v.  French,   21    111.   598. 

1644.    Words  to  he  understood  in  usual  sense. 

Sec.  1G44.     The  words  of  a  contract  are  to  be  understood  in  their  ordinary 
■  and  populai?  sense,  rather  than  according  to  their  strict  legal  meaning;  unless 
.used  bj  the  parties  in  a  technical  sense,  or  unless  a  special  meaning  is  given  to 
*Khem  by  usage,  in  which  case  the  latter  must  be  followed. 

Sease  in  wMch  •words  to  be  taken. — As 
•a  general  rule,  where  the  words  used  in  a  con- 
tract have   a   popular  and  technical  meaning 


•  they  are  to  be  understood  in  the  former  instead 
■of  the  latter  sense:  Callahan  v.  Stanley,  57  Cal. 

•  470;  Cruller  v.  Comi.  Miit.  L.  Im.  Co.,  22  N.  Y. 
-427;  llaices  v.  Smith,   12  Jle.  429;  Schw/lkUl 

i:av.   Co.   V.  Moore,  2  Whart.  491.      Words 

'■  having  a  peculiar,  technical  meaning,  and  so 
apparently  used  by  the  parties,  should  be  so 
interpreted:  See  1  Story  on  Cont.,  5th  ed.,  803; 

'  2  Parsons  on  Cont.  493,  535,  5.55.  Usage  as 
throwing  light  on  the  meaning  of  a  word,  see 

'next  section  and  note. 

Contracting  parties  have  the  power  to  define 
the  words  which  they  use  in  the  contract,  and 
if  the  agreed  definitions  are  free  from  ambigu- 
ity t!io  contract  will  be  enforced  according  to 

.the  delinitiou  thus  assigned:  Morri-Mii  v.  ii^il- 
son,  30  Cal.  344.     And  it  will  be  presumed, 


nothing  to  the  contrary  appearing,  that  the 
same  meaning  was  intended  wherever  the  like 
words  are  subsequently  used:  Saunders  v, 
dark,  29  Id.  299.  The  grammatical  construc- 
tion is  not  always  to  be  followed:  Hancock  v. 
Wat^^on,  18  Id.  137. 

"Rescind"  may  be  interpreted  "cancel,"  if 
such  was  the  sense  in  which  the  parties  em- 
ployed the  word:  Weil  v.  Jones,  53  Cal.  46. 
"Practicable"  does  not  mean  "that  which 
can  be  accomplished  by  human  means:  "  Reedy 
V.  Smith,  42  Id.  245. 

Lawson's  Concordance  contains  a  very  large 
list  of  words  and  phrases  used  in  contracts  and 
in  statutes  that  have  received  judicial  con- 
struction. 

A  word  used  with  a  particular  meaning  in 
one  portion  of  a  contract  is  presumed  to  have 
bjen  used  in  like  sense  in  other  places:  Saun- 
ders V.  Clark,  29  Cal.  239. 


1615.    Technical  words. 

Sec.  1G45.  Technical  words  are  to  be  interpreted  as  usually  understood  by 
persons  in  the  profession  or  business  to  which  they  relate,  unless  clearly  used 
in  a  different  sense. 


employed:  Dana  v.  Fied'er,  12  N.  Y.  40;  Astor 
v.  Union  Int.  Co.,  7  Cow.  202;  Lacy  v.  Green, 
80  Pa.  St.  514;  liobinnon  v.  Fiske,  23  Me.  40i. 
See  note  to  sec.  1014,  mqyra. 


Technical  terms,  when  used  in  their  tech- 
nical sense,  are  to  be  taken  in  such  sense;  and 
for  the  ascertainment  thereof  it  is  competent 
to  call  as  w'tnesses  men  acquainted  with  the 
business  or  profession  in  which  such  terms  are 

1646.  Law  of  place. 

Sec  1G4:G.  A  contract  is  to  be  interpreted  according  to  the  law  and  usage  of 
the  place  where  it  is  to  be  performed;  or,  if  it  does  not  indicate  a  place  of  per- 
formance, according  to  the  law  and  usage  of  the  place  where  it  is  made. 


Usage  as  an  Interpreter. — "  Usage  is  never 
admissiljle  except  as  an  instrument  of  interpre- 
tation:" Code  Civ.  Proc,  sec.  1S70,  subd.  12. 
That  it  may  be  resorted  to  to  prove  that  the 
officers  of  a  certain  corporation  rcceiveil  no 
ealary,  see  Frayler  v.  Sonora  M.  Co.,  17  Cil. 
695.  Usage  cannot  be  resorted  to  to  nullify 
the  provisions  of  a  contract:  Polhemns  v.  Ilei- 
man,  50  Id.  438.  For  a  very  complete  exami- 
nation of  the  admissibility  of  usage  to  aid  in 
the  intrepretatioa  of  coatraots,  oonsult  Law- 


son  on    Usages  and    Customs,    sees.     ISO    et 
seq. 

Ij3x  loci  contractus  as  an  interpreter. — 
With  respect  to  what  law  goveruj  in  the  inter- 
pretation and  construction  of  contracts,  the 
text  of  the  above  section  is  in  h.irniony  with 
the  prevailing  rule.  T!ie  law  of  tlio  place 
where  the  contract  is  to  be  |>erformed  deter- 
mines  whatever  relates  to  the  performance  and 
operation  of  the  contract,  wh^rca^  its  forma- 
tion and  the  meaning  of  the  parties  are  settled 


306 


Title  III.]  INTERPRETATION  OF  CONTRACTS.  §§  1647-1653 

by  the  liw  of  the  place  where  the  contract  is  Confl.  L.,  sees.  401,  418,  433.     And  an  apnli- 

made:  Scifdrfer  v.  Uiiion  Nat.   Bank,  91  U.  S.  cation  of  the  rule  to  ascertain  the  meaning  of 

406.     See  also  tlie  discussion  of  this  (juestion,  the  word   "stubhie"  in  a  lease:  Callahan  v. 

and  criticism  of  the  case  last  cited,  iu  Wliart.  Stanley,  57  Cal.  476. 

1647.    Contracts  explained  hi/  circumstances. 

Sec.  1G47.     A  contract  may  be  explained  by  reference  to  the  circumstances 

tinder  which  it  was  made,  and  the  matter  to  which  it  relates. 

See  1   Addison  on  Cont.,  sec.  1S2,  Abbott's  served,    and    tlie  subsequent   conduct   of    the 

notes.     The  relation  of  the  parties  to  each  other  parties  may  be  inquired  into:  McNeil  v.  Shirley, 

and  to  the  subject-matter  must  be  considered  33  Id.  202.     And  see  the  construction  given  to 

in   cases   of  doubtful   contracts:   Thonrpaon  v.  a   contract  to  build   a  dam  within  a  certain 

J/cA'a//,  41  Cal.  221.     The  circumstances  under  time  "or  as  soon  thereafter  as  practicable:" 

which  the   contracts  were  made  must  be  ob-  Rtedy  v.  Smith,  42  Id.  245. 

1643.    Contract  resfricted  to  its  evident  object. 

Sec  1048.     However  broad  may  be  the  terms  of  a  contract,  it  extends  only  to 

those  things  concerning  which  it  appears  that  the  parties  intended  to  contract. 

See  same  principle:  Code  Civ.  Proc,  sec.  1864,  and  note.  Section  cited  ia  Brickell  v.  JJatchd' 
der,  02  (Jal.  623. 

1649.  Interpretation  in  sense  in  which  promisor  believed  promisee  to  rely. 

Sec.  1G49.  If  the  terms  of  a  promise  are  in  any  respect  ambiguous  or  uncer- 
tain, it  must  be  interpreted  in  the  sense  in  which  the  promisor  believed,  at  the 
time  of  making  it,  that  the  promisee  understood  it. 

The  language  used  by  either  party  is  to  have  party  would  give  it:  Barlow  v.  Scoft,  24  N.  Y. 
such  a  construction  as  lie  supposed  the  other    40;  Gutiiiisoii  v.  Bancroft,  11  Vt.  490. 

1650.  Particular  clause  subordinate  to  general  intent. 

Sec  1G50.     Particular  clauses  of  a  contract  are  subordinate  to  its  general 

intent. 

Particular  clauses  subordinate  to  gen-  respected:  BpU  v.   Brunt,   1   How.  169,  184; 

eral  intent. — But  if  particular  words  or  chaises  JIolm>'s  v.  Martin,  10  Ga.  503;  Vounhan  v.  For' 

are  introduced  for  the  purpose  of  qualifying  the  ter,  10  Vt.  2G0;  Bnxt>>r  v.  State,  9  Wis.  38. 

general  language  used,  this  purpose  should  be  See  also  infra,  sees.  1652,  1653. 

1651.  Contract,  partly  xorilten  and  partly  printed. 

Sec  1051.     Where  a  contract  is  partly  written  and  partly  printed,  or  where 

part  of  it  is  written  or  printed  under  the  special  directions  of  the  parties,  and 

with  a  special  view  to  their  intention,  and  the  remainder  is  copied  from  a  form 

originally  prepared  without  special  reference  to  the  particular  parties  and  the 

particular  contract  in  question,  the  written  parts  control  the  printed  parts,  and 

the  parts  which  are  purely  original  control  those  which  are  copied  from  a  form. 

And  if  the  two  are  absolutely  repugnant,  the  latter  must  be  so  far  disregarded. 

'"Written    parts    control    the    printed  copied  from  a  form.'    This  is  the  real  principle 

parts:'  Harper  v.  N.  Y.  City  Ins.  Co.,  22  N.  of  the  foregoing  decisions.     Printing   is  only 

Y.  444;  Harper  v.  Albany  /.ys.  Co.,  17  Id.  198;  evidence  that  the  contract  was  partly  formal 

Woo'lri'/'  V.  Com.  Mut.  Inx.  Co.,  2  Hilt.  122;  and  partly  ori^jinal:"  Commissioners' note. 
Bee  People  v.  Saxton,  22  N.  Y.  309.  '  The  parts  So  also  Clark  v.  IVoodruf,  S3  N.  Y.  518. 
which  are  original  control    tliose  which   are 

1652.  Repugnancies,  how  reconciled. 

Sec  1G52.  Repugnancy  in  a  contract  must  be  reconciled,  if  possible,  by  such 
an  interpretation  as  will  give  some  efifect  to  the  repugnant  clauses^  subordinate 
to  the  general  intent  and  purpose  of  the  whole  contract. 

1653.  Inconsistent  words  rejected. 

Sec  1653.     "Words  in  a  contract  which  are  wholly  inconsistent  with  its  nature, 

or  with  the  main  intention  of  the  parties,  are  to  be  rejected. 

Rejeoting  words  and  clauses  in  contracts    337;  Stockton  v.   Turner,  7  J.  J.  Marsh.  192; 
on  account  of  their  inconsistency  w  itli  the  na-     Uecorah  v.  Kesselmeier,  45  Iowa,  100. 
ture  or  design  thereof:  Buck  v.  Burk,  18  N.  Y. 

307 


->( 


^ 


§§  1654-1661  CONTRACTS.  [Dnr.  Ill,  Part  II, 

1654.  Words  to  be  taken  most  strongly  against  whom. 

Seo.  1654.     In  cases  of  uncertainty  not  removed  by  the  preceding  rule,  tlie 

language  of  a  contract  should  be  interpreted  most  strongly  against  the  party 

who  caused  the  uncertainty  to  exist.     The  promisor  is  presumed  to  be  such 

party;  except  in  a  contract  between  a  public  officer  or  body,  as  such,  and  a 

private  party,  in  which  it  ia  presumed  that  all  uncertainty  was  caused  by  the 

private  party. 

Uncertainty,  against  whom  construed. —  9  Wall.  394;  Barney  v.  Newcomb,  9  Cush.  46. 

LangiiaL^e  in  a  contract  uncertain  and  ambigii-  But  as  is  indicated  by  the  above  section,  this 

ous  is  to  be  taken  most  strongly  against  the  rule  is  to  bo  applied  only  where  the  ambiguity 

person  using  it,  or  who  causes  the  uncertainty  or  doubt  cannot  otlierwise  be  explained:  Falley 

to  exist:  Marvin  v.  Stone,  2  Cow.  781;  Harper  v.  G'dei^,  29  Ind.  114. 

V.  N.  Y.  Citii  Iiiff,  Co.,  22  N.  Y.  441;  Union        In  contracts  between  the  public  and  a  private 

Bank  v.  Guice,  2  La.  Ann.  249;  Livingston  v.  individual  the  uncertainty  will  be  presumed 

Ilarrimjton,  28  Ala.  424;  Noonan  v.  Bradley,  to  have  been  caused  by  the  latter. 

1655.  Reasonable  sfipulations,  when  implied. 

Sec.  1655.  Stipulations  which  are  necessary  to  msike  a  contract  reasonable, 
or  conformable  to  usage,  are  implied,  in  respect  to  matters  concernin"^  which 
the  contract  manifests  no  contrary  intention. 

1656.  Necessary  incidents  implied. 

Sec.  1656.  All  things  that  in  law  or  usage  are  considered  as  incidental  to  a 
contract,  or  as  necessary  to  carry  it  into  effect,  are  implied  therefrom,  unless 
some  of  them  are  expressly  mentioned  therein,  when  all  other  things  of  the  same 
class  are  deemed  to  be  excluded. 

Brickell  v.  Datchelder,  62  Cal.  623. 

X     1657.    Time  of  performance  of  contract. 

Sec  1657.     If  no  time  is  specified  for  the  performance  of  an  act  required  to 

be  performed,  a  reasonable  time  is  allowed.     If  the  act  is  in  its  natui'e  capable 

of  being  done  instantly — as,  for  example,  if  it  consists  in  the  payment  of  money 

only — it  must  be  performed  immediately  upon  the  thing  to  be  done  being  exactly 

ascertained. 

That  the  law  implies  that  a  contract  is  to  be  time  for  performance  should  be  allowed,  see 

perfoimod  immediately,  or  at  most  witliin  a  Vaure  v.  Pena,  41   Id.  GSG;  Grey  v.   Tnhb%  43 

rcasonalile  time,  where  no  time  of  performance  is  Id.    359;    Vaxsaidl   v.  Eilvoarda,   43    Id.    459; 

Bpecilied,  see  Brenvan  v.  rord,  46  Cal.  7;  Luck-  JJtuist  v.  Pujol,  44  Id.  230. 
hart  v.  Oglen,  30  Id.  547.     That  a  reasonable 

1653.    Ti7ne  when  of  essence. 

Section  1058  was  repealed  by  act  appproved  March  30,  1874;  Amendments  1873-4,  242;  took 
eflfect  July  I,  1874. 

1650.    When  joint  and  several. 

Sec  1659.  Where  all  the  parties  who  unite  in  a  promise  receive  some  benefit 
from  the  consideration,  whether  past  or  present,  their  promise  is  presumed  to 
be  joint  and  several. 

Contracts,  joint  and  several:  See  ante,  tiablo  instruments:  Monaon  v.  DrakeJij,  40 
sees.  I4;'.0<>tseri.  Conn,   ry'yl;  Maiden   v.   Websfer,   .SO   Ind.    317; 

P  oniiso  in  tho  sinsular  made  by  several     Dill  v.  IVhlle,  52  Wis.  109;  Partridje  v.  Colby, 
poisons  creates  a  ji)int  and  several  liability.     19  Barb.  248. 
This  principle  has  been  applied  often  to  nogo- 

1660.    Same. 

Sec  1660.  A  promise,  made  in  the  singular  number,  but  executed  by  several 
per.soas,  is  presumed  to  be  joint  and  several. 

IGSl.    Executed  and  exccalori/  cmitractH,  what. 

Sec  1661.  An  executed  coutract  ia  one  the  object  of  which  is  fully  per- 
formed.    All  others  are  executoiy. 

308 


Title  IV.] 


UNLAWFUL  CONTHACTS. 


§§  1667- 1G76 


TITLE  IV. 

UNLAWFUL  CONTRACTS. 
1667.    What  is  unlawful. 

Sec.  1GG7.     That  is  not  lawful  which  is: 

1.  Contrary  to  an  express  provision  of  law; 

2.  Contrary  to  the  policy  of  express  law,  though  not  expressly  prohibited;  or, 

3.  Otherwise  contrary  to  good  morals. 

Contracts  iu  restraint  of  trade:  See  sec.     emoluments  are  void:  Martin  v.  Wade,  87  Id. 
167?>,  irfra. 

Conlxacta  iu  restraiat  of  marriage:  See 
860.  JG7*),  infra. 

Conditions,  -when  void:  See  ante,  sees.  709, 
710.  711. 

Unlawful  contracts. — Under  the  first  snb- 
ilivisnni  of  the  above  section  tlie  code  commis- 
tioiiirs  say:  "The  law  makes  no  distinction 
i;i  this  icspect  between  muliim  prohibitum 
a::d  ■maii:m  in  sc:  Pennimitou  v.  Toioaseud,  7 
Vi'cnd.  21ir,  Lcavitt  v.  J'almer,  3  N.  Y.  10;  De 
Orod  V.  Win  Dazcr,  20  Wend.  390;  Pratt  v. 
A'l(im>^,  7  I'aige,  G.33;  Seneca  Co.  B'k  v.  Lamb, 
20  B:irb.  505."' 

For  a  distinction  between  contracts  malum  in 


IGS.  Contracts  to  prevent  bidding  at  an  exe- 
cution sale  are  void:  Packard  v.  Bird,  40  Id. 
37S;  so  may  be  contracts  to  ]irocure  a  franchise: 
Poicell  V.  lUafj'iire,  43  Id.  11. 

Contracts  for  an  attorney's  contingent  fee  are 
valid:  Ilojfman  v.  Vallejo,  45  Cal.  504;  Baflardw 
Cirr,  43  Id.  74;  and  so  is  a  contract  to  drauglit 
a  bill  and  place  it  in  the  hands  of  a  legislator: 
Mifc.i  V.  Tliornp,  33  Id.  335.  Whether  money 
received  by  an  agent  to  be  applied  to  an  illegal 
purpose  can  be  recovered  back,  see  Whiti'  v. 
Li/ons,  42  Id.  279.  See  also  citations  under  next 
subdivision. 

A  contract  by  a  pre-emptor,  before  his  pay- 
ment, to  sell  the  timber  on  tho  land  for  private 
se  ami  mafum  jirohibilnm,  with  respect  to  tl>e     puijioses  is  void,  and  the  subsequent  aecpiire- 


reniedy  afiorded,  see  Martin  v.  Wade,  37  Cal. 
1U8. 

Subd.  2.  Contrary  to  the  policy  of  ex- 
presa  la'cv. — Under  tliis  clause  the  commis- 
■ioiicrs  ci::e  IkU  v.  Lenijett,  7  N.  Y.  170,  181; 
(Jray  v.  Hook,  4  Id.  449. 

Thci'e  is  no  difference  in  principle  between  a 
contract  to  keep  a  witness  for  the  government 
out  of  tho  way  and  an  agreement  to  suppress 
aid  get  from  the  archives  or  oOiees  of  tho  gov- 
enimeut  a  deposition,  a  knowlidge  of  which 
may  bj  important  to  tlie  government,  and  such 
contracts  woidd  be  void  as  against  public  pol- 
icj':    Wc'eiitiiie  V.  Stcwirt,    15  Cal.   3S7.     Any 


mcnt  by  the  pre-emptor  of  the  title  confers  no 
right  of  action:  Ladda  v.  llawley,  57  Cal.  51. 
A  note  given  fur  timber  growing  on  public 
land  i^  void:  Sivainjcr  w  Mayherri/,  59  Id.  91. 
Subd.  3.  Contrary  to  good  "morals.— A 
promise  to  many  in  consideration  of  the  con- 
tinuance of  an  illicit  relation  by  tho  promisee 
with  tho  promisor  is  void:  B(>i(jiieren  v.  Bon'o.i, 
54  Cal.  140;  lU„kt  v.  Nng/ce,  Id.  51.  Conlrart 
based  on  an  agreement  of  a  trustee  of  a  c  ^r- 
poration  to  resign  is  voiil;  Forben  v.  McDounhl, 
54  Id.  98.  And  a  contract  by  an  administra- 
tor to  give  a  broker  all  he  can  realize  above  a 
certain  sum  on  a  sale  of  laud  of  the  estate  is 


agreement  as  to  governuient  contracts  which  agiinst  public  policy,  and  cannot  be  enforced: 

tends  1o  deprive  the  government  of  the  ad  van-  L>>niielicilz  v.  S/ieppard,  62  Id.  339,  342.     So  a 

tagccf  competition  in  the  bidding  is  void:  .S'(t"rt?i  note  given  by  the  wife  for  land  conveyed  by 

V.  Chorj/emiiiKj,  20  Id.  182.     A  contract  by  a  husband  to  her  in  consideration  of  her  allowing 

Eub-ic   oiieer  which   interferes  with    the   un-  him  to  get  ad.  vorce  from  her  is  void:  L'enrd  v. 

iase  1  discliargo  of  his  duty  is  void:  See  Spence  Beard,  3  West  Coast  Rep.  208.     Agreement  to 

v.  Ihirih-ij,  22  id.  336.  pay  attorney  a  contingent  fee  is  valid:  Ballard 

So  also  where  a  county  surveyor  enters  into  v.  Carr,  48  Cal.  74;  llojman  v.   Vallejo,  45  Id. 

a  private  arrangement  whereby  he  is  to  acijuire  504. 

on  J  half  of  lands  surveyed:  E'/u-ards  v.  Estill,  Warjers  are  against  good  morals  and  sound 

48  Cal.  194.     Nor  can  one  acting  in  a  fiduciary  policy,  and  cannot  be  enforced  by  the  courts; 

capacity  deal  with  himself  as   an  individual:  before  the  wager  is  decided  the  money  can  be 

Wdbnrw  L>/iide,  49  Id.  290.     Agreements,  in  recovered  by  cither  party  from  the  stakeholder; 

consideration  of  aiding  to  an  ofDce,  to  shareits  afterward,  by  neither:  Gridley  v.  Born,!}!  Id.lS. 

1663.    Certain  contracts  unlav-fid. 

Sec.  1G08.  All  contracts  which  have  for  their  object,  directly  or  indirectly, 
to  exempt  any  one  from  responsibility  for  his  own  fraud,  or  willful  injury  to 
the  person  or  property  of  another,  or  violation  of  law,  whether  willful  or  neg- 
ligent, aro  against  the  jpolicy  of  the  law. 

1869.    Periallles  void. 

Section  KiOO  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873  4,  242;  took 
eflecfc  July  1,  1874. 

1670.    (Jordroct  fixinrj  dnmagrK,  void. 

Seo.  1G70.  Every  contract  by  wbich  the  amount  of  damage  to  be  paid,  or 
other  compensation  to  be  made,  for  a  breach  of  an  obligation,  is  determined  in 

309 


§§  1671-1674 


CONTRACTS. 


Piv.  Ill,  Part  II, 


anticipation  thereof,  is  to  that  extent  void,  except  as  expressly  provided  in  the 
next  section. 


Liquidated  damages:  See  the  note  to  next 
section.  Til  is  and  the  following  section  ex- 
press tlie  rules  of  law  now  generally  recognized 
in  tliia  country  as  ajiplicable  to  contracts  which 
undertake  to  iix  iii  advauce  the  damages  to  be 


paid  for  non-performance.  The  subject  will 
be  found  discussed  quite  fully  in  the  note  to 
Graham  V.  Birkhain,  1  Am.  Dec.  331;  eee  also 
2  Addison  ou  Cout.,  8th  ed.,  Abbott's  notes,  p. 
686. 


1671.    Excfplion. 

Sec.  1G71.  The  parties  to  a  contract  may  agree  therein  upon  an  amount 
which  shall  be  presumed  to  be  the  amount  of  damage  sustained  by  a  breach 
thereof,  wben,  from  the  nature  of  the  case,  it  would  be  impracticable  or  extremely 
difficult  to  fix  the  actual  damacfe. 


The  use  and  meaning  of  the  terms  "penalty," 
ami  "liquidated  damages "  are  commented  on 
in  People  v.  Love,  19  Cal.  676. 

Ill  the  following  cases  the  sum  stated  was 
hold  to  be  a  penalty:  Nash  v.  Jlermoxitn,  9  Cal. 
5'-i4;  RickeUonx.  likhardHon,  19  Iil.  .330;  Hal- 
deman  v.  Jenkins,  14  Ark.  329;  Clark  v.  Kay, 
26  Ga.  403;  Foley  v.  McKi-effan,  4  Iowa,  1,  a 
leading  authority;  Daily  v.  Litchfield,  10  Mich. 


29;  Lonq  v.  Towl,  42  Mo.  406;  Wilson  v.  Gra- 
ham, 14  Tex.  222.  And  in  the  following  cases 
the  damages  were  declared  to  be  liquidated: 
Cal.  Steam  Nav.  Co.  v.  Wrhjht,  6  Cal.  258;  Fisk 
V.  Fowler,  10  Id.  512;  Streeter  v.  Riu^h,  25  Id. 
67;  Gammon  v.  Ilotoe,  14  Me.  250;  Goiren  v. 
Gerrish,  15  Id.  273;  Brewster  v.  Edijerly,  13 
N.  H.  275;  Durst  v.  Swift,  11  Tex.  273;  liyan 
V.  Martin,  16  Wis.  57. 


1672.  Redraints  upon  legal  proceedings. 

Section  1672  was  repealed  by  act  approved  March  30^  1874?  Amendments  1873  4,  242;  took 
effect  July  1,  1874. 

1673.  Contract  in  restraint  of  trade,  void. 

Sec.  1G73.  Every  contract  by  which  any  one  is  restrained  from  exercising  a 
lawful  profession,  trade,  or  business  of  any  kind,  otherwise  than  is  provided  by 
the  next  two  sections,  is  to  that  extent  void. 


Contracts    in    restraint    of   trade. — The 

conimissicmers  preface  tlieir  note  with  the 
remark:  "Contracts  in  restraint  of  trade  have 
been  allowed  by  modern  decisions  to  a  very  dan- 
gerous extent,"  and  conclude  with  these  obser- 
vations : 

"By  the  terms  of  this  section,  and  by  the 
following  section,  the  restraint  imposed  would 
seem  to  be  obliged  to  be  limited  to  a  specilicd 
county;  and  to  tliis  effect,  also,  are  the  cases  of 
Wrifjht  V.  Ryder,  30  Cal.  342,  and  More  v. 
Bonnet,  40  Id.  251.  In  Whdtaker  v.  Howe,  3 
Beav.  387,  a  contract  not  to  practice  law  any- 
where in  England  was  specifically  enforced. 
Such  a  contract  maniiestlj'  tends  to  enforce 
idleness,  and  deprives  the  state  of  the  services 
of  its  citizens." 

This  important  subject  will  be  found  to  be 
treated  in  the  light  of  very  recent  adjudications 
in  the  late  work  on  contracts  by  Mr.  Wharton, 
vol.  1,  sees.  430  ct  scq.  In  this  state,  in  addi- 
tion to  the  cases  above  referred  to,  the  follow- 


ing involve  applications  of  this  branch  of  the 
law:  A  contract  not  to  run  boats  ou  a  certain 
line  of  travel  was  declared  valid  in  Cal.  Steam 
Nav.  Co.  V.  Wrhjht,  6  Cal.  258.  A  contract 
not  to  engage  in  a  particular  business  in  the 
state  of  California  was  held  invalid,  in  More  v. 
Bonnet,  40  Id.  251 ;  and  so  a  contract  not  to 
engage  "in  any  brancli  of  the  yeast-jiowder 
business:"  Callahan  v.  Donnelly,  45  Id.  152; 
a  contract  not  to  sell  to  any  other:  Schwalm 
v.  Holmes,  49  Id.  665;  and  a  contract  to  buy 
from  a  particular  individual  for  a  stated  time, 
in  consideration  of  the  latter's  refraining  from 
selling  during  that  time:  Lightner  v.  Menzell, 
35  Id.  452 — are  valid. 

In  Golden  Gate  Packing  Co.  v.  Farmers'  Union, 
55  Cal.  600,  a  contract  giving  to  the  defendants 
the  agency  to  sell  plaintiffs'  goods  cast  of  the 
state  of  California  was  construed  not  to  prevent 
the  plaintiffs  selling  their  goods  east  them- 
selves; the  defendants'  right  went  only  to  the 
agency  for  the  goods. 


1674.   Exception  in  favor  of  sale  of  good-will. 

Sec.  1G74.     One  who  sella  the  good-will  of  a  business  may  agree  with  the 

buyer  to  refrain  from  carrj'ing  on  a  similar  business  within  a  specified  county, 

city,  or  a  part  thereof,  so  long  as  the  buyer  or  any  person  deriving  title  to  tlie 

good-will  from  him  carries  on  a  like  business  therein. 

Good-will  of  a  business  defined:  Sec.  992,     sec.  1G73,  swpra.    "  The  district  within  which  a 

party  may  exclude  himself  from  carrying  on 
business  should  be  accurately  defined  by  law. 
And  no  one  should  bo  allowed  to  prevent  another 
from  carrying  on  a  business  unless  he  himself 
provides  the  public  with  the  same  advantages 
in  the  same  county  or  city,  or  part  thereof: 
]\lore  V.  Bonnet,  40  Cal.  251;  Wrlfht  v.  Ryder, 
Sold.  342." 


ante. 

Good-will  of  a  business  is  property:  Sec. 
993,  ante. 

Sale  of  good- will,  implied  warranty  not  to 
draw  a\vr.y  customers:  Hec.  I77l).  /ws<. 

Partner  cauao';  dispose  of  good- will:  See 
jpos/.  sec.  2t30,  subd.  2* 

Contracts  restroiniaTr  trade;  See  note  to 


310 


Title  V,  Chap.  II.]  EESCISSIOK  g§  1675-1689 

1675.  Exception  in  favor  of  partnership  arrangements. 

Sec.  1G75.  Partners  may,  upon  or  in  anticipation  of  a  dissolution  of  tlie 
partnershij),  agree  that  none  of  tliem  will  carry  on  a  similar  business  within 
the  same  city  or  town  where  the  partnership  business  has  been  transacted,  or 
within  a  sj)ecified  part  thereof. 

1676.  Contract  in  restraint  of  marriage,  void. 

Sec.  1G7G.     Every  contract  in  restraint  of  the  marriage  of  any  person,  other 
than  a  minor,  is  void. 
Conditions  in  restraint  of  marriage:  See  ante,  sec.  710,  and  note. 


TITLE  V. 

EXTINCTION  OF  CONTEACTS, 

Chaptpb    I.     Contracts,  how  Extinguished 1G82 

II.     Kescission 1G83 

III.      AlTEKAHON  AND^  CANCELLATION .  ., 1G97 

CHAPTER  I. 

COXTEACTS,  HOW  EXTINGUISHETX 

16S2.    Co-ntract,  how  extinguished. 

Sec.  1G82.  A  contract  may  be  extinguished  in  like  manner  with  any  otheJ 
obligation,  and  also  in  the  manner  prescribed  by  this  title, 

CHAPTER   XL 

RESCISSION. 

1683.   Rescission  extinguishes  contract. 

Sec.  1G88.     A  contract  is  extinguished  by  its  rescission.. 

1689.    When  party  may  rescind. 

Sec.  1GS9.  A  jDarty  to  a  contract  may  rescind  the  same  in  the  folloAving  eases 
only: 

1.  If  the  consent  of  the  party  rescinding,  or  of  any  party  jointly  contracting 
with  him,  was  given  by  mistake,  or  obtained  througli  duress,  menace,  fraud,  or 
undue  influence,  exercised  by  or  with  the  connivance  of  the  party  as  to  whom 
he  rescinds,  or  of  any  other  party  to  the  contract  jointly  interested  with  such 
party; 

2.  If,  thi'ough  the  fault  of  the  party  as  to  whom  he  rescinds,  the  considera- 
tion for  his  obligation  fails,  in  whole  or  in  part; 

3.  If  such  consideration  becomes  entirely  void  from  any  cause; 

4.  If  such  consideration,  before  it  is  rendered  to  him,  fails  in  a  material  re- 
spect, from  any  cause;  or, 

5.  By  consent  of  all  the  other  parties. 

See  pos/!,  sees.  .3403  et  acq.,  on  rescission.  scinrl.     The  proposition  ia  well  settled  that 

Resjission    of     contracts.  —  Subd.     1.  where  one  has  l)eeii  intluced  by  fraud  to  enter 

Duress,  menace,  fraud,  uadue  influence,  or  into  a  contract,  he  may  either  ratify  tlie  same,  . 

mistake. — Couseutobtained  through  either  one  and  sue  for  ilainages,  or  rescind:  See  1  Whart. 

of  these  means  is  not  free,  within  tlie  require-  ou  Coiit.,  sec.  '2i'l;  2  Addison  on  Oont.,  sec 

ments  of  a  valid  consent:  See  sees.  ir)G3,  iJG7,  1-lS,    AI)bott's    n«tes;    Alvarez   v.    Dniiman, 

ante.    But  couseut  so  obtained  does  make  a  con-  7  Cal.  50:>;  Pence  v.    Lawjdon,  00  U.   S.  578j . 

tract  absolutely  void:  Sec.   I.IGG.     It  gives  to  Place  w  MiHsler,Gr)'S.  Y.  80;  BraiUiyw  Luce, 

the  party  the  right  to  ratify  the  contract  or  re-  90  111.  234;  Cooper  v.  Mcllvalu,  58  Ala.  296;  , 

311 


g§  16no.  1G91 


CONTRACTS. 


[Div.  Ill,  Part  II, 


Pendn-vix  v.  Orny^  41  Tex.  320;  ifcf^have  v. 
Haze  hni-M,  50  i\lil.  107.  It  i^  iinmatctial,  in 
juiat  contr.acus,  wliether  tlie  consent  of  the  re- 
Bcinding  party,  or  of  tlie  one  jointly  contract- 
ing, was  ooLaiiied  by  fraud:  iSec  City  Daiih  of 
Colttmhu'<  V.  Bruce,  17  N.  Y.  514,  acase  of  joint 
and  several  contract. 

False  r.'[iresentations  which  do  not  occasion 
actual  damage  do  not  furnish  a  ground  for 
rescindin.;  an  executed  contract:  Purdyv.  Bid- 
lard,  41  Cal.  444;  Comm.l-^sioiii'rs  v.  YouiKjer, 
20  Id.  17-';  and  see  Morrison  v.  Z/oc/.s,  39  Id. 
8Sl.  In  case  of  a  mutual  mistake  as  to  the 
feuhject-matter  of  a  contract,  the  remedy  of  the 
aggrieved  party  is  by  rescission:  Barjield  v. 
Price,  40  Id.  535.  Mistake  as  a  ground  of  re- 
lief against  a  contract:  See  note  to  Miles  v. 
Stevens,  45  Am.  Dec.  631. 

Where  advantage  has  been  taken  of  the  situ- 
ation or  condition  of  one  of  the  parties,  equity 
will  set  aside  the  contract.  In  this  case,  ad- 
vantage was  taken  of  the  ignorance  of  a  boy 
by  a  shrewd  man,  in  whom  the  former  had 
placed  confidence:  Ilali  v.  PerkUi-i,  3  Wend. 
62G.  And  in  the  following,  imposition  and  un- 
fair advantage  was  practiced  u[)on  parties: 
Udall  v.  Keiiney,  3  Cow.  590;  Cltthercdl  V. 
Offilvie,  1  Desau.  260;  Lester  v.  Mahun,  25  Ala. 
445.  Examples  of  undue  influence  as  a  ground 
of  resorting  to  equity  to  rescind  a  contract  will 
be  found  in  Kennedy  v.  Kennedy,  2  Id.  571; 
WiUiayns  v.  Powell,  1  Ired.  En.  4G0;  Wheeler 
V.  Smith,  9  IIow.  55;  Whefan  v.  ]Vhelan, 
3  Cow.  5.'>9;  Harding  v.  Handy,  11  Wheat. 
103.  Mere  feebleness  of  intellect  is  not  of  itself 
Bulficient  ground  to  set  aside  a  contract:  Gra- 
ham v.  Castor,  55  Ind.  559;  but  will  furnish 
eatisfactory  cause  when  coupled  witli  an  un- 
conscionable bargain:  Mann  v.  Betterly,  21  Vt. 
32C;  Harris  v.  Wamsley,  41  Iowa,  G71;  Butler 
V.  Hasti-ll,  4  Desau.  651.  So  where  the  party 
was  in  a  state  of  intoxication  at  the  time: 
Hotchkiss  V.  Fortson,  7  Yerg.  67;  Whitev.  Cox, 
3  Hayw.  79;  Calloway  v.  Witlierspoon,  5  Ired. 
Eq.  128. 


Subds.  2,  3,  4.  Failure  of  consideration. 
Mere  inadequacy  of  co:isideratio;i  is  not  a 
ground  for  rescission:  See  note  to  I/oittjh's  Ad- 
mini-^tralors  v.  IJuiit,  15  Am.  Dec.  572.  (irosa 
inadequacy  of  consideration,  coupled  with  any 
inOiience  or  authority  of  the  party  gaining 
the  benefit  over  the  other,  will  justify  a  lescis- 
sion:  See  supra,  in  this  note,  and  1  Whart. 
on  Cont.,  sec.  518.  Whore  a  frau<lulent 
representation  affects  a  material  part  of  iho 
consideration,  the  i)arty  injured  may  rescind: 
Creuss  v.  Fcssler,  39  Cal.  33G;  as  an  example 
of  the  failure  of  consideration  for  a  note  in 
whole  or  in  part,  see  B'dlinjs  v.  Everett,  52'  Id. 
GGl;  Bank  of  Woodland  v.*  Hialt,  53  Id.  234. 
A  failure  to  deliver  goods  for  which  a  note 
was  given  is  a  total  failure  of  consideration: 
Plate  V.  Veja,  31  Id.  383.  That  a  partial 
failure  of  consideration  could  not  be  pleaded  in 
bar  to  an  action  on  a  note  givi  n  for  tao  price  of 
land,  see  Reese  v.  Gordon,  10  Id.  147.  Assign- 
ment of  a  contract  void  under  the  statute  of 
frauds  does  not  constitute  a  good  consideration 
for  a  promise:  Mayer  v.  Child,  47  Id.  142. 

Iniilequacy  of  consideration  as  a  ground  of 
relief  in  equity:  See  2  Poineroy's  Eq.  .Jur., 
sees.  925  et  seq.  Failure  of  consideration  as  a 
defense:  See  Id.,  and  Waterman  on  Spec.  Perf. 
Cont.,  sees.  1S9  et  seq. 

Subd.  5.  Rescission  by  consent — A  con- 
tract in  writing  under  seal  may  be  rescinded  by 
the  executed  parol  agreement  of  tiie  parties: 
Green  v.  Wells  tt  Co.,  2  Cal.  584.  Such  agree- 
ment may  be  ])resumed  from  the  acts  of  the 
parties:  Id.  Tlie  return  of  a  cable-rope,  ileliv- 
ered  on  trial  and  to  be  kept  if  satisfactory, 
amounted  to  a  rescission  by  mutual  consent: 
Ha'lidiev.  Snt/'-r  St.  P.  P.,  G3  Id.  575. 

Contracts  against  publio  policy,  bein'^;  void 
from  their  inception,  furnish  no  gfound  for 
rescission:  Murlin  v.  Wade,  37  Cal.  108. 

Grounds  of  rescission  as  a  counter-claim: 
Sen  Code  Civ.  Proc,  sees.  438,  439. 

Rsscindins  sale  of  personalty  for  non- 
payment of  price:  Seepjsi,  sec.  1748. 


1690.  When  stipulations  against  right  to  rescind  do  not  defeat  it. 

Sec.  1G90.  A  stipulation  that  errors  of  description  sball  not  avoid  a  contract, 
©r  sliall  be  the  subject  of  compensation,  or  both,  does  not  take  away  the  ri;:^ht 
of  rescission  for  fraud,  nor  for  mistake,  where  such  mistake  is  in  a  matter  essen- 
tial to  the  inducement  of  the  contract,  and  ia  not  capable  of  exact  and  entire 
compensation. 

1691.  liescission,  how  effected. 

Sec.  1G91.  Rescission,  when  not  eflfected  by  consent,  can  be  accomplished 
only  by  the  use,  on  the  part  of  the  party  rescinding,  of  reasonable  diligence  to 
comply  with  the  following  rules: 

1.  He  must  rescind  promptly  upon  discovering  the  facts  which  entitle  him  to 
rescind,  if  he  is  free  from  duress,  menace,  uudue  influence,  or  disability,  and  is 
aware  of  his  right  to  rescind;  and, 

2.  He  niust  restore  to  the  other  party  everything  of  value  which  he  has 
received  from  him  under  the  contract:  or  must  ofifer  to  restore  the  same,  upon 
condition  that  such  party  shall  do  likewise,  unless  the  latter  is  unable  or  posi- 
tively refuses  to  do  so. 

Duty  of  party  rescindius— The  party  de-  coarse:  Marston  v.  Si'nniion,  51  Ca!.  189.  190; 
Biriiig  to  rescind  must  do  so  promptly  upin  B:irjie'd  v.  Price,  40  Id.  5;r>;  /■'rrt.'t  v.  Pi-^ke,  17 
discovering  the   facts   entiding    him   to  such     Id.  330;  Getty  v.  Devlin,  Hi:  N.  Y.  415;  U)>l(m 

312 


Title  V,  Chap.  III.]         ALTERATION  AND  CANCELLATION. 


§§  1607.  1698 


V.  Trehiloch.  91  CJ.  S.  45;  Watson  Coal  Co.  v. 
Canted,  CS  lud.  470;  Memphis  etc.  li,  li.  Co.  v. 
Neighbor'',  al  ]\Iis3.  412;  and  see  the  reference 
to  text-boiiks  in  tlie  note  to  sec.  1G89,  ^xtpra. 
The  couit  Vi i  1  not  say,  as  a  matter  of  law,  that 
a  delay  to  ttFcr  to  rescind  for  a  jjeriod  of  a  little 
less  than  six  i;;ontli3  is  such  laches  as  ^vill  de- 
prive a  parf.y  ulaiutiff  of  his  right  to  such  relief: 
Mar.iton  v.  Sim.tson,  54  Cal.  189. 

The  code  commissioners,  in  their  note  totliis 
Bubdivi;iion,  saj':  "  This  is  undoubtedly  the 
common-law  rule.  But  the  rule  in  equity  does 
not  apjicar  to  have  been  so  strict.  The  equita- 
ble action  for  rescission  is  governed  by  rules 
etated  in  the  fourth  division  of  this  code:"  See 
sees.  3-10')-34C8,  post. 

Subd.  2,  Restoring  what  has  been  re- 
ceived.— The  party  seeking  to  rescind  must 
restore,  or  offer  to  restore,  what  has  been  re- 
ceived under  tlie  contract:  Waits  v.  While,  13 
Cal.  821;  Wintoii  v.  Spring,  18  Id.  451;  Morri- 
sonw  Lods,  39  Id.  381;  Herman  v.  Ileffeiierirjer, 
54  Id.  IGl;  Miller  v.  Stent,  30  Id.  492;  hitz  v. 
Bynum,  55  Id.  459;  Henderson  v.  HicLs,  58  Id. 
364;  Col/ins  v.  Townsend,  58  Id.  COS.  For  the 
right  of  rescission  does  not  exist  if  tlie  parties 
cannot  be  placed  in  their  original  condition: 
Calif ornin  v.  McCauley,  15  Cal.  429;  Fratt  v. 
Fisle,  17  Id.  330;  Commissioners  v.  Youufj^r,  29 
Id.  172;  Morrison  v.  Lods,  39  Id.  381.  Tliis, 
however,  does  not  mean  that  things  should  be 


replaced  in  every  sense  as  they  were,  as  this  is 
imjiossiljlc:  See  tiie  discussion  1  Whart.  on 
Cont.,  sec.  2S5;  and  see  the  cases  cited  on  the 
general  proposition  of  offering;  to  restore  ben- 
efit received:  Addison  on  Cont.,  sec.  1218, 
Abbott's  note. 

Tlie  restoration  must  be  made  within  a  rea- 
sonable time:  Collins  v.  Toirnsend,  5S  Cal.  008, 
GIO;  and  see  Bank  of  Woodland  v.  iliatt,  Id. 
234. 

A  vendor  who  seeks  to  rescind  must  restore 
the  money  paid  to  him:  Bohall  v.  Diller,  41 
Cal.  535;  Henderson  v.  Hiclcn,  58  Id.  304; 
Miller  v,  Steen,  30  Id.  402.  Ami  as  to  return- 
ing consideration  money  received  under  a  con- 
tract which  the  party  receiving  wishes  to  set 
aside,  see  Morrison  v.  Lods,  39  Cal.  351. 

A  vendee  who  wishes  to  rescind  a  convey- 
ance of  land  must  tender  a  reconveyance:  Wil- 
bur V.  Flood,  IG  Mich.  40;  Parks  v.  Ecansville 
R.  R.,  23  Ind.  507;  Mitchell  v.  Moore,  24  Iowa, 
394.  See,  as  to  necessity  of  surrendering  pos- 
session, Haynes  v.  White,  55  Cal.  38.  An  offer 
to  return  the  deed  is  not  a  rescission  nor  an 
offer  to  rescind:  Ahrens  v.  Adler,  33  Id.  608. 

An  offer  *:o  return  is  not  necessary  where 
tlie  subject-matter  is  w.orthless:  Thurston  v. 
Bhinrhard,  22  Pick.  IS;  Duval  v.  Mowry,  6  R. 
I.  479;  and  see  Fitz  v.  Bynum,  55  Cal.  459. 

The  rescission  must  be  in  toto:  Bohall 
V.  Diller,  41  Cal.  532. 


CHAPTER  IIL 

ALTERATION  AND  CANCE?  XATION. 

1697.   AUerntion  of  verbal  contract. 

Sec.  1G97.  A  contract  not  in  writing  may  be  altered  in  any  respect  by  con- 
sent of  the  parties,  in  writing,  without  a  new  consideration,  and  is  extinguished 
thereby  to  the  extent  of  the  new  alteration.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  242;  took  effect  July  1,  1874.] 

"Alterations,   generally,   but    not  always,     release.     Even  a  mere  extension  of  the  time 


consist  iii  the  su'ostitution  of  a  new  contract 
for  the  one  that  is  superseded.  Such  an  altera- 
tion is  a  novation,  antl  is  considered  under 
that  head.  A  consideration  is  necessary  to 
make  an  alteration  valid  at  common  law.  A 
novation  implies  a  consideration,  but  an  altera- 
tion of  any  other  kind  amounts  only  to  a  par- 
tial release  without  seal:  See  the  chapter  on 


for  performance  requires  a  consideration  to 
support  it:  Kellog:)  v.  Ol.nst"ad,  25  N.  Y.  189; 
affirming  S.  C,  28  Barb.  90:"  Code  commis- 
sioners' note. 

Alterations  in  •written  instrument  to  be 
accounted  for  by  the  party  producing  it  in  evi- 
dence: Code  Civ.  Proc,  sec.  1982. 


1698.    Alteration  of  written  contract. 

Sec  1G98.     A  contract  in  writing  may  be  altered  by  a  contract  in  writing,  or 

by  an   executed  oral   agreement,  and  not  othei'wise.     [Amendmeid,  approved 

March  30,  1874;  Amendments  1873-4,  242;  took  effect  July  1,  1874.] 

Verbrd   alteration. — An  oral  change  in  or 
vaivcr  of   t!ie  terms  of  a  written  ac^rcement 


must  be  cl.-aily  tscabliihed:  Lassitiff  v.  Caii/e, 
6J  Cal.  .575;  find  .^^ce  Perkins  v.  Ci/Jtir  S.  '.)/. 
Co.,  35  Id.  II.  See,  case  where  it  was  doubt- 
ful, La-tsi,/  v.  Pdi'je,  50  Id.  139. 

That  the  time  for  performance  of  a  contract 
in  writing  may  l>e  waived  or  extended  liyoral 
agreuiiieut,  bco  Waii'/enheim  v.  Graliam,  .19  Cal. 
169;  and  as  to  what  evidence  is  sufficient  to 
establish  such  verbal  agreement,  see  Luckhurt 


v.  Ofjdeii,  30  Id.  547.  It  is  to  be  noted  that  in 
till!  code  as  originally  adopted  there  was  the 
following  clause  after  the  word  "otherwise" 
in  the  above  section,  which  clause  was  stricken 
out  by  tlie  amendment  of  1874:  "  Except  aa  to 
the  time  of  performance,  which  may  be  extended 
by  any  form  of  agreement." 

Parol  evidence  to  alter  writings:  See  Code 
Civ.  Proc,  sec.  1856,  and  note;  and  see  ante, 
sec.  1039. 


313 


§§  1609-1712  OBLIGATIONS  IMPOSED  BY  LAW.  [Div.  HI,  Paet  m. 

1699.  Extinction  by  cancellation,  etc. 

Sec.  1G99.  The  destruction  or  cancellation  of  a  written  contract,  or  of  the 
signature  of  the  parties  liable  thereon,  with  intent  to  extinguish  the  obligation 
thereof,  extinguishes  it  as  to  all  the  parties  consenting  to  the  act. 

1700.  Extinction  hy  unauthorized  alteration. 

Sec.  1700.  The  intentional  destruction,  cancellation,  or  material  alteration 
of  a  written  contract,  by  a  party  entitled  to  any  benefit  under  it,  or  with  his 
consent,  extinguishes  all  the  executory  obligations  of  the  contract  in  his  favor, 
against  parties  who  do  not  consent  to  the  act. 

The  alteiMtion  of  an  imlemiiity  bond  by  sub-     worked  no  injury  in  the  particular  case,  and 
stitatiog  tlie  name  of  a  different  claimant,  and     was  hell   not  to  vitiate  the   bond:  Rojers  v. 
tlien  by  erasing  this  new  name  and  restoring    Shaw,  59  Gal.  260. 
the  original  one,  while  not  to  be  approved,  yet 

1701.  Alteration  of  duplicate  not  to  prejudice. 

Sec  1701.  Where  a  contract  is  executed  in  duplicate,  an  alteration  or 
destruction  of  one  copy,  while  the  other  exists,  ia  not  within  the  provisions  of 
the  last  section. 


PAET  in. 

OBLIGATIONS  IMPOSED  BY  LAW. 

1708.  Ahdinence from  injury. 

Sec.  1708.  Every  person  is  bound,  without  contract,  to  abstain  from  injur- 
ing the  person  or  property  of  another,  or  infringing  upon  any  of  his  rights. 

The  code  commissioners  say  that  "these  divisions  of  this  code."  See  also  Penal  Code» 
rights    are    deliued   by   the  first  and  second    sees.  346-349. 

1709.  Fraudulent  deceit. 

Sec  1709.  One  who  willfully  deceives  another,  with  intent  to  induce  him  ta 
alter  his  position  to  his  injury  or  risk,  is  liable  for  any  damage  which  he  thereby 
suffers. 

1710.  Deceit,  what. 

Sec  1710.     A  deceit,  within  the  meaning  of  the  last  section,  is  either: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by  one  who  does  not 
believe  it  to  be  true; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not  true,  by  one  who  has  no 
reasonable  ground  for  believing  it  to  be  true; 

3.  The  suppression  of  a  fact,  by  one  who  is  bound  to  disclose  it,  or  who  gives 
information  of  other  facts  which  are  likely  to  mislead  for  want  of  communica- 
tion of  that  fact;  or, 

4.  A  promise,  made  without  any  intention  of  performing  it. 
Fraud  actual  and  constructive:  See  sees.  1571  et  seq. 

1711.  Deceit  upon  the  public,  etc. 

Sec  1711.  One  who  practices  a  deceit  with  intent  to  defraud  the  public,  or 
a  particular  class  of  persons,  is  deemed  to  have  intended  to  defraud  every  indi- 
vidual in  that  class  who  is  actually  misled  by  the  deceit. 

1712.  Itrstoration  of  thing  wromifulhj  arqulrcd. 

Sec.  1712.  One  who  obtains  a  thing  without  the  consent  of  its  owner,  or  by 
a  consent  afterwards  rescinded,  or  by  an  unlawful  exaction  which  the  owner 
could  not  at  the  time  prudently  refuse,  must  restore  it  to  the  person  from  whom 
it  was  thus  obtained,  unless  he  has  acquired  a  title  thereto  sup^^rior  to  th  it  of  such 
other  person,  or  unless  the  transaction  wu  corrupt  and  unlawful  ou  both  sides. 

314 


Part  IV,  Iitlk  L]  SALE.  §§  1715-1715 

"Justice,  ratlier  tliau  the  decisions,  has  been  intended  to  provide  for  the  exceptions  created 

foUoweil  ill  the  text.     The  difficulty  sueina  to  by  the  title  on  negotiable  ducumeuts,  and  by 

be  that  the  courts  have  established  one  rr.lc  as  section  1 142:"  From  code  coniniissioners'  note, 

to   the  leclamation  of   money  paid,  which  is  The  maker  of  a  promissory  note  who  induces 

simply  the  rescission  of  an  executed  contract,  the  holder  to  surrender  it  so  as  to  prevent  the 

and  anotiicr  as  to  tlic  rescission  of  a  promise  to  coiimencemeut  of  an  action  thereon  is  liable 

pay,  which  is  aa  executory  contract:"     From  for  such  deceit,  although  the  statute  may  have 

code  coniMiissioners' note.  run  against  the  note  at  the  time  the  action  is 

" '  Unless   he   has  acquired   a  title   thereto  brought:   Cockrill  v.  Hall,  3  West  Coast  Rep. 

superior  to  that  of  such  other  person.'     This  is  lOG. 

1713.  When  demand  necessarxj. 

Sec.  1713.  The  restoration  required  by  the  last  section  must  be  made  with- 
out demand,  except  where  a  thing  is  obtained  by  mutual  mistake,  in  which  case 
the  party  obtaining  the  thing  is  not  bound  to  return  it  until  ho  has  notice  of 
the  mistake. 

1714.  ErsjwnsibilUy  for  willful  acts,  negligence,  etc. 

Sec.  1714.  Every  one  is  responsible,  not  only  for  the  result  of  his  willful 
acts,  but  also  for  an  injury  occasioned  to  another  by  his  want  of  ordinaiy  care 
or  skill  in  the  management  of  his  property  or  parson,  except  so  far  as  the  latter 
has,  willfully  or  by  want  of  ordinary  care,  brought  the  injury  upon  himself. 
The  exteijt  of  liability  in  such  cases  is  defined  b}'  the  title  on  compeusatoiy  relief. 

Compensatory  relief:  See  post,  sees.  32S1  et  seq. 

1715.  Olher  obligalioiis. 

Sec.  1715.  Other  obligations  are  prescribed  by  Divisions  First  and  Second 
of  this  code. 


PART  IT. 
OBLIGATIONS   AEISING   FROM   PAHTICULAR   TRANSACTIONS. 

Title  I.     S.\le 1721 

II.     Exchange 1804 

III.     Deposit 1813 

IV.     Loan 1884 

V.     IIiRixG 1925 

VI.     Service 1965 

VII.     Carriage 2085 

VIII.     Trust 2215 

IX.     Agency 2295 

X.     Pautnership 2395 

XL     Insurance 2527 

XII.     Indemnity 2772 

XIII.     Guaranty 2787 

XIV.     Lien 2872 

XV.     Kegotl\ble  Instruments 3086 

XVI.     General  Provisions j 32G8 

TITLE  r. 

SALE. 

Ciiapter  I.     General  Provisions 1721 

II.     Rights  and  Obligations  ok  the  Seller 1748 

TIL     Rights  and  Obligations  ov  ■:n-:  Buyer 1784 

IV.     Sale  by  Auction 1792 


S§  17:21-1732  OBLIGATIONS.  IDiv.  Ill,  Part  IV, 

CHAPTER   I. 
GENERAL  PROVISIONS. 

Abticle  I.    Salr 1721 

II.     A<;iiKEMEXTS  FOR  Sale 1726 

III.     FuKii  OF  TUB  Contract 1739 

AETICLE  I. 

SALE. 

1721.  Sale,  what. 

Sec.  1721.  Sale  is  a  contract  by  which,  for  a  pecuniary  consideration  called 
a  price,  one  transfers  to  another  an  interest  in  property. 

1722.  Suhji'cl  of  sale. 

Sec.  1722.  The  subject  of  sale  must  be  property,  the  title  to  which  can  be 
immediately  transferred  from  the  seller  to  the  buyer. 

ARTICLE  II. 

AGEEEMENTS    FOR    SALE. 

1726.  Agrpement  for  sale. 

Sec.  17 2G.     An  agreement  for  sale  is  either; 

1.  An  agreement  to  sell; 

2.  An  agreement  to  buy;  or, 

3.  An  agreement  to  sell  and  buy. 

1727.  Arireemerit  to  sell. 

Sec.  1727.  An  agreement  to  sell  is  a  contract  by  which  one  engages,  for  a 
price,  to  transfer  to  another  the  title  to  a  certain  thing. 

"The  distinction  between  a  sale  and  an  another,  in  the  latter  he  only  promises  to  sell:" 
agreement  to  .sell  \i  tliis:  that  in  the  former  the     Connnissioners'  note. 

thing  Avhich  is  t!ie  subject  of  the  contract  l>e-  •  Aa  an  illustration  of  an  agreement  to  sell,  see 
comes  the  propfrty  of  the  buyer  as  soon  as  the  tlie  delivery  of  a  i)iano  with  an  agreement  to 
contract  is  co:ichi(lcd;  in  the  latter  the  property  transfer  the  title  when  the  person  to  whom  it  is 
of  the  thiu','  renains  in  the  vendor  until  the  deliveredshallhavcpaidtheoonsiderationmoney 
contract  is  executed;  in  the  former  one  sells  to     by  installments :  Kohier  v.  Hayes,  41  Cal.  455. 

1728.  Agrepmeiil  to  buy. 

Sec.  1728,  An  agreement  to  buy  is  a  contract  by  which  one  engages  to 
accept  from  another,  and  pay  a  price  for  the  title  to  a  certain  thing. 

1729.  Agreement  to  sell  and  buy. 

Sec.  1729.  Ad  agreement  to  sell  and  buy  is  a  contract  by  which  o.ne  engages 
to  transfer  the  title  to  a  certain  thing  to  another,  who  engages  to  accept  the 
same  from  liim  and  to  pay  a  price  therefor. 

Acceptance  ou  trial  does  not  pass  the  title:  Ilulltidie  v.  Sutter  St.  R.  R.,  G3  Cal.  575. 

1730.  Whnl  may  be  the  subject  of  the  conlrnct. 

Sec  17o0.  Any  property  which,  if  in  existence,  might  be  the  subject  of  sale, 
may  be  the  subject  of  an  agreement  for  sale,  whether  in  existence  or  not. 

1731.  Agreement  to  sell  real  property.  ' 

Sec  1731.  An  agreement  to  sell  real  property  binds  the  seller  to  execute  a 
conveyance  in  form  sufficient  to  pass  the  title  to  the  property.  \Amfii(hneni, 
appron'd  Mnri-li  30,  1874;  Amendmentx  l<S73-4,  243;  took  effect  July  1,  1874.] 

Contract  to  cive  deed:  See  Porter  v.  Noye-*,  11  Am.  Dec.  31,  and  note  thereto;  and  note  to 
Finney  v.  AMey,  20  Id.  G25. 

1732.  Form  of  grant. 

Section  17.J2  was  repealed  by  act  approved  Mirch  3D,  1874;  Amendments  1873-4,  243;  took 
effect  July  1,  1874. 

3!G 


Title  I,  Chap.  I.]  GENERAL  PROVISIONS.  §§  1733-1739 

1733.  Uxiial  common-law  covenants  required  by  such  contracts,  when. 

Sec.  1733.  An  agreement  on  the  part  of  a  seller  of  real  property  to  give  the 
usual  covenants  binds  him  to  insert  in  the  grant  covenants  of  "  seisin,"  "  quiet 
enjoyment,"  "further  assurance,"  "general  warranty,"  and  "against  incum- 
brances." 

1734.  Form  of  such  covenants. 

Sec.  1734.  The  covenants  mentioned  in  the  last  section  must  be  in  substance 
as  follows:  "  The  party  of  the  first  part  covenants  with  the  party  of  the  second 
part,  that  the  former  is  now  seised  in  fee  simple  of  the  property  granted;  that 
the  latter  shall  enjoy  the  same  without  any  lawful  disturbance;  that  the  same 
is  free  from  all  incumbrances;  that  the  party  of  the  first  part,  and  all  persons 
acquiring  any  interest  in  the  same  through  or  for  him,  will,  on  demand,  execute 
and  deliver  to  the  party  of  the  second  part,  at  the  expense  of  the  latter,  any 
further  assurance  of  the  same  that  may  be  reasonably  required;  and  that  the 
party  of  the  first  part  will  warrant  to  the  party  of  the  second  part  all  the  said 
property  against  every  person  lawfully  claiming  the  same." 

"Its  object  is  the  same  as  that  of  section  9  Vict.,  o.  119.  It  is  believed  that  the  form 
1092;  namely,  to  reduce  the  length  of  convey-  hei-e  given  is  sufficient  to  cover  all  the  intri- 
ances,  and  to  provide  a  plain  and  sufficient  cately  worded  stipulations  usually  given  in 
form,  as  is  done  by  the  English  statutes  8  &    such  cases:"  Commissioners'  note. 

ARTICLE  m. 

FORM   OF   THE   CONTRACT. 

1739.    Contract  for  sale  of  personal  property. 

Sfc.  1739.  No  sale  of  personal  property,  or  agreement  to  buy  or  sell  it  for  a 
price  of  two  hundred  dollars  or  more,  is  valid,  unless: 

1.  The  agreement,  or  some  note  or  memorandum  thereof,  be  in  >vriting,  and 
subscribed  by  the  party  to  be  charged,  or  by  his  agent;  or, 

2.  The  buyer  accepts  and  receives  part  of  the  thing  sold,  or  when  it  consists 
of  a  thing  in  action,  part  of  the  evidences  thereof,  or  some  of  them;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  part  of  the  price.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  243;  look  effect  July  1,  1874.] 

Psrsonnl  property.— "It  will  be  observed  Siibd.  2.  Acceptance  and  receipt  of  part 

that  the  phrase 'personal  property'  has  been  of  the  thing  sold — Both  must  concur,  aiul  the 

Bubstitutid  for  the  words  'goods,  wares,  and  words  of  the  seller  are  not  suiiicieiit  to  take  the 

merchandise' of  the  English  statute,  and   tlie  case  out  of  the  statute.    Some  act  of  the  buyer 

words  'goods,  chattels,  or  things  in  action'  of  is  essential  to  acceptance:  Slujidlerv.  Ilou-<ton, 

our  statute:  Stats.  1 8  30,  p.  2G6,  sec.  \?,.     Under  1   N.Y.  2G1;  Kirbrj  v.  Johnxon.  22  M...  354. 

the    ]!^ni,disli    statute,   and    similar   American  Acceptance  may  be  before  receipt:    Cro^n  v. 

Btatutes,  it  has  been  a  controverted  point  as  to  O'Di.niidl,  44  N.  Y.  GGl;  Garfield  v.  Paris,  96 

what  [)roperly  came  within  the  meaning  of  the  U.  S.  5GG;  liewex  v.  Jordan,  39  Ml.  472,  484. 

woids    quoted:    Hilliard    on    Sales,   4G4-4G7;  "The  words 'accept  and  actually  receive' are 

1  Beujamin  on  Sales,  CS;  Story  on  Sales,  sees,  understood  to  mean  a  linal  and  absolute  appro- 

2G2,  2G3.     To  avoid  the  question,  the  commis-  priation  by  the  purchaser,  either  of  the  whole 

sioners  substituted  the  phrase  'personal  prop-  article  sold  or  of  a  part  thereof.     So  long  as 

erty,'  which  is  defined  in  subdivision  G  of  sec-  the  contract  of  sale  is  by  its  terms  subject  to 

14  of  this  code:"  Statement  by  the  commis-  avdidance  by  either  party,  or  so  long  as  eithar 

Bioners.  party  has  a  claim  upon  the  g^ods  as  against 

Prioc  of  the  personalty. — For  a  considera-  the  otlier,  no  sufficient  acceptance  has  taken 

tion  <if  the  eOect  of  the  statute,  where  several  place  althou-^h  the  title  be  passed,  or  mere  pes- 

articles  are  sold  at  one  time,  see  1  Benjamin  on  session  of   tlie  subject-matter  of   tlie  sale  be 

Sales,  sees.  134  ct  scq.,  and  notes  in  the  4th  altered:"  Story  on  Sales,  sec.  27G. 

Am.  ed.     If  the  value  is  uncertain  at  the  time  Sec  the  very  full  consideration  of  this  sub. 

of  the  contract,  but  subsequently  proves  to  he  jeet  by  1   Benj  imin  on  Sales,  sees.  133  et  seq.; 

moro  than  two  himdred  dollars,  tlic  statute  np-  and   by   the   editor  of    the  fourth   American 

plies:  See  Brown  v.   Sanborn,  21   Minn.   402;  edition  in  the  notes  thereto. 

Bowman  v.  Conn,  8  Ind.  58;  Carpenter  v.  Gal-  Whether  an   acceptance   of    a  sample   will 

lowt^y,  73  Ind.  418.  satisfy  the  statute  depends  upon  the  intention 

Siibd.  1.  The  memorandum  in  •writing:  of  the  parties  to  make  such  sample  a  portion  of 

See  note  to  sec.  1G24,  a/j/e,  where  the  requisites  tlie  thuig  sold;  if  such  sample  is  a  .specimen 

of  the  memorandum  are  considered.              •  merely,  its  delivery  cannot  make  valid  an  oral 

317 


§§  1740-1749  OBLIGATIONS.  [Div.  HI,  Part  IV^ 

agreement  within  the  statute:  See  Moore  v.  42  Iowa,  647,  651 ;  Cofterill  y.  fJtfVfnit,  10  Wis. 
Love,  57  Miss.  7Gj;  Garfield  v.  Pari^,  9G  U.  S.  442.  The  statute  of  tins  state  requires  the  part 
657,  505;  1  Benjamin  on  Sales,  sec.  141.  payment  to  he  at  the  tinio  of  tlie  sale.  Under 
Subd.  3.  Part  payment. — The  act  of  part  the  English  statute  it  is  otherwise:  1  Benjamin 
payment  must  he  something  apart  from  tlie  on  Sales,  sec.  193,  in  note, 
contract  soutrht  to  he  validated  hy  it.  There-  Payment  need  not  be  in  money:  White  v. 
fore  payment  l)y  creilit  on  an  existing  in-  2)rf'7t',  56How.  Pr.  53,  57;  1  Benjamin  on  Sales, 
debtedniss  is  not  sufficient:  Matthiessi'n  etc.  sec.  194.  But  the  buyer's  own  note  is  not  pay- 
Co.  V.  M<-Mahon,  3S  N.  J.  L.  536;  Shiml'er  mcnt:  Krohnv.  Bantz.  QSlmX.  211;  Hooker  y. 
V.  HovMon,  1  N.  Y.  2G4;  Pitiipy  v.  G/ra'a  Kitab,  2Q  Wis.  511;  Nichols  v.  MUchell,  30  Id. 
Fall  Lis.  Co.,  65  N.  Y.  6,  27;  Brown  v.   H'ade,  329. 

1740.  Contract  to  manufacture. 

Sec.  1740.  An  agreement  to  manufacture  a  thing,  from  materials  furnished  by 
the  manufacturer,  or  by  another  person,  is  not  within  the  provisions  of  the  last 
section. 

1741.  Contract  for  sale  of  real  property. 

Sec.  1741 .  No  agreement  for  the  sale  of  real  property,  or  of  an  interest  therein, 
is  valid,  unless  the  same,  or  some  note  or  memorandum  thereof,  be  in  writing, 
and  subscribed  by  the  party  to  be  charged,  or  his  agent  thereunto  authorized, 
in  writing;  but  this  does  not  abridge  the  power  of  any  court  to  compel  the  spe- 
cific performance  of  any  agreement  for  the  sale  of  real  property  in  case  of  part 
performance  thereof.  [Amendment,  approved  March  30, 1874;  Amendments  1873- 
4,  243;  took  offi'ct  July  1,  1874.] 

See  Code  Civ.  Proc,  sec.  1971,  1972.  for  the  sale  of  land  out  of  the  operation  of  the 
"  Under  sections  Sand  9  of  the  statutes  1850,  statute  which  does  not  place  the  party  in  a 
the  agent  nii£;ht  be  appointed  without  writing,  situation  which  would  be  a  frauil  u[ion  him 
*  *  *  Section  1741  changes  the  rule,  and  unless  the  contract  be  executed:  Arr/nello  v. 
hereafter  tlic  agent  must  be  authorized  in  writ-  Edbiger,  10  Cal.  150,  and  see  Pomcroy  on 
ing:  "  Commissioners' note.  Cont.,  sees.  103,  104,  et  seq.  Entering  into 
Speciii  J  performance  of  contracts  for  the  possession,  expending  money  in  improvements, 
sale  of  land. — A  contract  for  the  sale  of  land  and  part  payment  of  tiie  pnrcbase  money  con- 
will  not  be  specifically  enforced  unless  it  be  stitute  a  sulHcient  part  performance:  Farley  y. 
in  writing,  or  if  oral,  unless  it  be  partly  per-  Vaurjhan,  11  Id.  227.  For  an  example  of  the 
formed:  lloen  v.  Simmons,  1  Cal.  119.  If  it  specific  enforcement  of  a  parol  gift  under 
would  be  a  fraud  upon  the  party  performing  in  which  the  donee  lias  entered  and  made  im- 
part not  to  carry  the  contract  into  cxccutio!i.  provements,  see  Manly  v.  Howilt,  55  Id.  94. 
it  will  be  enforced  specifically:  Tohlcr  v.  Fol-  See  like  principles  applied  to  enforcing  con- 
6om,  1  Id.  207.  And  nothing  can  be  regarded  tracts  for  a  lease:  McGanjer  v.  Jiood,  47  Id. 
as  a  part  performance  to  take  a  verbal  contract  138;  Clark  v.  Clark,  49  Id.  586. 

CHAPTER  II. 
RIGHTS  AND  OBLIGATIONS  OP  THE  SELLER. 

ARTTCr.K  I       HlGHTS   AND   DdTIES  BEFORE   DELIVERY 1748 

11     Delivery 1753 

HI     Warranty 1763 

ARTICLE  t 

BIGHTS   AND   DUTIES   BEFORE  DELIVERY, 

1748.  Wien  seller  must  act  as  depositary. 

Sec.  1748.  After  personal  property  has  been  sold,  and  until  the  delivery  ig 
completed,  the  seller  has  the  rights  and  obligations  of  a  depositary  for  hire, 
except  that  he  must  keep  the  property,  without  charge,  until  the  buyer  has  had 
a  reasonable  opportunity  to  remove  it. 

1749.  When  seller  may  resell. 

Sec.  1749.  If  a  buyer  of  personal  property  does  not  pay  for  it  according  to 
contract,  and  it  remains  in  the  possession  of  the  seller  after  payment  is  due, 
the  seller  may  rescind  the  sale,  or  may  enforce  his  lien  for  the  pi*ice,  in  the  man- 
ner prescribed  by  the  title  on  liens. 

318 


Title  I,  Ciiaf.  II.]    RIGHTS  AND  OBLIGATIOXS  OF  THE  SELLER. 


1753-1758 


Rescission  of  contracts,  generally:  See 
ante,  sec.  IGSS  ct  seq.  This  section  is  cited 
as  autiiority  for  the  right  of  the  vendor  in  pos- 
session to  rescind  upon  non-payment  of  tlie 
purchase  money  on  the  day  fixed;  and  tender 
of  a  check  for  tlie  amount  is  not  payment,  as 
the  seller  had  a  riglit  to  demand  money:  Beaii' 
champ  V.  Archer,  58  Cal.  431. 

Rescission  of  contract  for  sale  by  buyer: 
See^^os^,  sees.  1785,  1786. 


On  sales  payable  partly  in  money,  partly 
in  merchandiss,  if  the  buyer  does  not  exercise 
iji  a  reasonable  time  his  option  to  pay  in  articles 
he  must  pay  in  money;  and  if  there  was  no 
option,  but  the  specific  articles  were  agreed  to 
be  delivered  as  part  of  the  contract  of  sale,  the 
value  of  the  articles  is  the  measure  of  damages: 
Cummings  v.  Dudley,  60  Cal.  383. 

Liens :  See  post,  sec.  2872  et  seq. 


AKTICLE  II. 

DELIVERY. 

1753.    Delivery  on  demand. 

Sec.  1753.     Oue  -who  sells  personal  property,  -wliether  it  was  in  his  posses- 

Bion  at  tbe  time  of  sale  or  not,  must  put  it  into  a  condition  fit  for  delivery,  and 

deliver  it  to  the  buyer  within  a  reasonable  time  after  demand,  unless  he  has  a 

lien  thereon. 

V.  D'mglpy,  24  Me.  131;  2  Benjamin  on  Sales, 
891.  W^ith  respect  to  segregating  personalty  so 
that  it  may  be  identitied,  and  the  necessity 
thereof,  in  order  to  pass  the  title,  see  McLaugh- 
lin V.  Piatti,  451;  llorr  v.  Barker,  8  Cal.  603; 
Caruthers  v.  McGnrvey,  41  Id.  15. 

Delivery  sufHcient  as  to  third  persons: 
See  sec.  3440,  post. 


Performance  generally :  See  ante,  sees. 
147.3,  148.'),  etseq. 

The  sel.er  must  put  the  goods  in  condi- 
tion fit  for  delivery:  Gerard  v.  Prouty,  34 
Barb.  454. 

What  is  a  reasonable  time  is  a  question  for 
the  court,  the  facts  being  undisputed:  Echols 
V.  ]Sew  Orleans  It.  It.  Co.,  52  Miss.  610;  Greene 


1754.    Dt  livery,  where  made. 

Sec.  1754.  Personal  property  sold  is  deliverable  at  the  place  where  it  is  at 
the  time  of  the  sale  or  agreement  to  sell,  or  if  it  is  not  then  in  existence,  it  is 
deliverable  at  the  place  where  it  is  produced. 

Place  cf  delivery — In  the  absence  of  an    bard,  51  Vt.  489;   see  also  note  to  Bates  v. 


express  or  implied  provision  to  the  contrary, 
the  1  l:ice  where  the  articles  are  at  the  time  of 
the  ai^reemeut  is  the  place  of  delivery:  Smith 
v.  Gi  'hit,  LQ 111.  290;  luce  v.  ChurchUl,  2  Dcnio, 
14."i;  LobdeU  v.  Hopkins,  5  Cow.  516;  God- 
dard  v.  Binneij,  115  Mass.  450;  Phelps  v.  Hub- 


Bate^,  12  Am.  Dec.  573. 

An  article  not  in  existence  at  the  time  of  the 
contract  must  be  delivered  at  the  place  where 
it  is  produced,  there  being  no  stipulations  to 
the  contrary:  Itice  v.  Churchill,  2  IJenio,  145. 


1755.  Expense  of  transportation. 

Sec  1755.  One  who  sells  personal  property  must  bring  it  to  his  own  door, 
or  other  convenient  place,  for  its  acceptance  by  the  buyer,  but  further  trans- 
portation is  at  the  risk  and  expense  of  the  buyer. 

1756.  Notice  of  election  as  to  delivery. 

Sec.  175G.  "When  either  party  to  a  contract  of  sale  has  an  option  as  to  the 
time,  place,  or  manner  of  delivery,  he  must  give  the  other  party  reasonable 
notice  of  his  choice;  and  if  he  does  not  give  such  notice  within  a  reasonable 
time,  his  right  of  option  is  waived. 

1757.  Buyer's  directions  as  to  manner  of  sending  things  sold. 

Sec.  1757.  If  a  seller  agrees  to  send  the  thing  sold  to  the  buyer,  he  must 
follow  the  directions  of  the  latter  as  to  the  manner  of  sending,  or  it  will  be  at 
his  own  risk  during  its  transportation.  If  he  follows  such  directions,  or  if,  in 
the  absence  of  special  directions  he  uses  ordinary  care  in  forwarding  the  thing, 
it  is  at  the  risk  of  the  buyer. 

1758.  Delivery  to  be  within  reasonable  hours. 

Sec  1758.     The  delivery  of  a  thing  sold  can  be  offered  or  demanded  onl-? 

within  reasonable  hours  of  the  day. 

Delivery  must  be  at  a  reasonable  hour:  See  2  Benjamin  on  Sales,  897;  and  the  note  to  BcUe»^ 
V.  Butts,  12  Am.  Dec.  574. 

319 


§§  17G.V1768  OBLIGATIONS.  [Div.  IH,  Part  IV, 

ARTICLE  III. 

WAKnANTY. 

1763.  Warranty,  what. 

Sec.  17G3.  A  warranty  is  an  engagement  by  which  a  seller  assures  to  a  buyer 
the  existence  of  some  fact  affecting  the  transaction,  whether  past,  present,  or 
future. 

Representations,  when  constitute  a  war-  tion  the  buyer  relies,  it  is  a  warranty:  Polhe- 
ranty. — That  m^.'ie  [iraise  by  the  seller  of  his  wus  v.  Herman,  45  Id.  57.3;  Moore  v.  McKla- 
articles  when  odering  tliem  for  sale  does  not  Ian,  '"'  I''-  471.  A  contract  to  sell  and  deliver 
amomit  to  a  warranty:  Byrne  v.  Jcnmen,  50  "in  good  order "  is  an  express  warranty:  PoU 
"al.  024.     No  particular  words,  however,  are     hfviuii  v.  Herman,  supra. 

oecessary  to  constitute  a  wariaiity  of  the  char-  The  principles  recognized  in  these  decisiona 
acter,  condition,  or  quality  of  tiie  goods  sold;  will  he  found  amply  supported  by  autliority  in 
if  the  seller  alKrnis  a  fact  as  to  the  essential  2  Benjanii!i  on  Sales,  4th  Am.  ed.,  sec.  032,  iu 
qualities  of  the  articlr.s,  upon  which  atlirnia-     note  5  et  seq. 

1764.  No  implied  warravty  in  mere  contract  of  sale. 

Sec.  17G4.     Except  as  prescribed  by  this  article,  a  mere  contract  of  sale  or 

agreement  to  sell  does  not  imply  a  warranty. 

That  warranties  are  not  generally  implied,  the  light  of  the  rules  prescribed  in  Part  V.  of 

especially  as  to  quality,  see  John-son  v.  Poivrr'f,  the  Piditical  Code." 

2  West  Coast  llcp.  740.    The  code  coininission-  "Warrmty  of  genuineness  on  escliange 

ers  suggest  that  this  section  must  be  construed  of  money:  Sec.  1807,  post. 
iu  connection  with  section  1732,  a?ite,  "and  in 

1765.  Warranty  of  title  to  personal  property. 

Sec.  17G5.  One  who  sells  or  agrees  to  sell  personal  property  as  his  own 
thereby  warrants  that  he  has  a  good  and  unincumbered  title  thereto. 

Warranty  of  title.— "This  section  is  a  de-  Herman,  45  Id.  573;  Johnson  v.  Powem,  2 
parture  from  the  American  rule,  but  is  in  ac-  West  Coast  Rep.  740.  Breach  of  an  express 
cord  with  the  recent  English  decisi<-ns.  Under  warranty  of  title  does  not  arise  until  the  buyer's 
this  section  a  warranty  of  the  title  is  implied  possession  is  disturbed  by  the  true  owner: 
from  the  sale,  whether  the  goods  are  in  posses-  Gross  v.  Kiersld,  41  Cal.  111.  An  agreement 
siou  of  the  vendor  or  of  third  i)arties  at  the  to  sell  does  not  imply  a  warranty;  no  warranty 
time  of  the  sale;  See  note  to  sec.  1764:"  Com-  can  lie  iin[ilied»except  in  cases  of  sale:  Jiarley 
niissioners'  note.  v.  Gotdtn  State  etc.  IVorks,  4  West  Coast  Hep. 

Implied    warranty   of  title   from   sale:    See     GOG. 
Miller  v.  Van  Tassel,  24  Cal.  458;  Polhemus  v. 

1766.  Warranty  on  sale  by  sample. 

Sec.  17GG.    One  who  sells  or  agrees  to  sell  goods  by  sample  thereby  warrants 

the  bulk  to  be  equal  to  the  sample. 

Sales  by  sample. —In  the  statement  of  the  it  is  the  quality  that  must  be  the  same.     An 

above  principle  by  Mr.  Benjamin,  2  Sales,  p.  847,  instruction   that    "where    goods   are   S(dd   by 

he  says  ihat  "  in  a  sale  of  goods  by  sample,  the  sample   the  law  implies  a  warranty  that  the 

vendor  warrants  the  quality  of  the  bulk  to  be  articles  shall  not  be  inferior  in  (juality  to  the 

equal  to  tliat  of  the  samide."    And  adds:  "The  sample,  and  that  if  they  are  the  purchaser  may 

rule  is  so  universally  taken  for  granted  that  it  accept  them  and  bring  an  action  for  the  breach 

is  hardly  necessary  to  gi\e  direct  authority  for  of  warranty,"  was  uplield  iu  llmjlies  v.   Bray, 

it."     The  rule  as  laid  down,  in  the  above  quo-  GO  Cal.  284. 

tation  is  doubtless  what  the  codifiers  meant.         See  also  note  to  Bradford  v.  Manly,  7  An». 

and  not  that  "  the  bulk  is  equal  to  the  sample;"  Dec.  12ti. 

1767.  When  seller  knows  that  buyer  relies  on  his  statements. 

Sec.  17G7.  One  who  sells  or  agrees  to  sell  personal  property,  knowing  that 
the  buyer  relies  upon  his  advice  or  judgment,  thereby  warrants  to  the  buyer 
that  neither  the  seller  nor  any  agent  employed  by  him  in  the  transaction  knows 
the  existence  of  any  fact  concerning  the  thing  sold  which  would,  to  his  knowl- 
edge, destroj'  the  buyer's  inducement  to  buy. 

See  Hosemav.  v.  Canovan,  43  Cal.  110,  where  concealment  and  artifice  in  regard  to  damage  to 
the  vendor  of  wool  was  held  liable  for  active     the  wool  from  rain. 

1768.  Merchandise  not  in  existence. 

Sec.  17G8.  One  who  agrees  to  sell  merchandise  not  then  in  existence  thereby 
warrants  that  it  shall  be  sound  and  merchantable  at  the  place  of  production 

320 


Title  I,  Chap.  H.]    EIGHTS  AND  OBLIGATIONS  OF  THE  SELLER.  §§  17G9-1773 

contemplated  by  the  parties,  and  as  nearly  so  at  the  place  of  delivery  as  can 
be  secured  by  reasonable  care. 

1769.  Mavvfacturer's  warranty  against  latent  defects. 

Sec.  1769.  One  who  sells  or  agrees  to  sell  an  article  of  his  own  manufacture 
thereby  warrants  it  to  be  free  from  any  latent  defect,  not  disclosed  to  the  buyer, 
arising  from  the  process  of  manufacture,  and  also  that  neither  he  nor  his  agent 
in  such  manufacture  has  knowingly  used  improper  materials  therein. 

1770.  Thing  bought  for  particular  purpose. 

Sec.  1770.     One  who  manufactures  an  article  under  an  order  for  a  particular 

purpose  wari'ants  by  the  sale  that  it  is  reasonably  fit  for  that  purpose. 

Warranty  that  article  manufactured  for  cable-rope  to  be  deliverefl  for  trial  was  souglit' 

a  particular  purpose  is  reasonably  fit  for  the  to  be  construed  as  a  sale  with  warranty,  for 

purpose  in  question:  See  2  IJenjamin  on  Sales,  breach  of  which  defendant  had    liis    i-cmedy. 

8G5, andnote35;iiJjnerso7?  V. i?ri,7A((7n,6Ani.Dec.  Fire- wood  is  not  a  manufactured  article  withiu 

115,  anil  note;  see  HaUidie  v.  Sutter  St.  R.  R.,  the  meaning  of  the  code:  Corrcio  v.  Lynch,  3 

63  Cal.  575,  where  a  coutract  to  manufacture  a  "West  Coast  Rep.  41, 

1771.  When  thing  can  he  examined  by  buyer. 

Sec.  1771.     One  who  sells  or  agrees  to  sell  merchandise  inaccessible  to  the 

examination  of  the  buyer  thereby  warrants  that  it  is  sound  aaid  merchantable. 

"Warranty  of  quality. — The  commissioners    where  articles  sold  Rr«;at  sea:  Moore  v.  Mc^ 
here  cite    Cleiv  v.  McFherson,  1    Bosw.    480;     Kinlaij,  5  Cal.  471. 
Uamilloa  v,  Ganyard,  34  Barb.  204.  Warranty  i 

1772.  Trade-marks. 

Sec  1772.     One  who  sells  or  agrees  to   sell  any  article  to  which  there  is 

affixed  or  attached  a  trade-mark  thereby  warrants  that  mark  to  be  genuine  and 

lawfully  used 

"From  Stats.  25  &  26  Vict.,  c.  88,  sec.  19,  be  dispensed  with  only  by  a  written  refusal  ta 
This   statute  enacts    that   this  warranty  can    warrant: "  Commissiouers'  note. 

1773.  Olher  marks. 

Sec.  1773.  One  who  sells  or  agrees  to  sell  any  article  to  which  there  ia 
affixed  or  attached  a  statement  or  mark  to  express  the  quantity  or  quality  thereof, 
or  the  place  where  it  was,  in  whole  or  in  part,  produced,  manufactured,  or  pre- 
pared, thereby  warrants  the  truth  thereof. 

Stats,  25  &  2GVict.,  c.  88. 

1774.  Warranty  on  sale  of  written  instrument. 

Sec  1774.  One  who  sells  or  agrees  to  sell  an  instrument  purporting  to  bind 
any  one  to  the  performance  of  an  act  thereby  waiTants  that  he  has  no  knowl- 
edge of  any  facts  which  tend  to  prove  it  worthless,  such  as  the  insolvency  of 
any  of  the  parties  thereto,  whei'e  that  is  material,  the  extinction  of  its  obliga- 
tions, or  its  invalidity  for  any  cause.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  244;  took  effect  July  1,  1874.] 

1775.  Warranty  of  provisions  for  domestic  use. 

Sec  1775.     One  who  makes  a  business  of  selling  provisions  for  domestic  use 

warrants  by  a  sale  thereof,  to  one  who  buys  for  actual  consumption,  that  they 

are  sound  and  wholesome. 

Provisions    sold    for  domestic   use    are  must  be  sold   for  immediate  consumption  in 

warranted   to  be  wholesome:    Van  Brcu-klhi  v,  order  to  carry  this  warranty:  Mosei  v.  Mead, 

Fomla,  12  Johns.  4GS;  Maxes  v.  Mead,  \  Denio,  1  Uenio,  378.     The  warranty  does  not  extend 

38G;    Divine    v,     McCorviich,    50    Barb.    IIG;  to  sales  of  i^rovisicms  as  merchandise:    Winaor 

Hoover  v.  Peters,  18  Mich.  51,  55.     But  they  v,  Lombard,  18  Pick.  57,  G2. 

Civ.  Code— 21  321 


S§  1776-1792  OBLIGATIONS.  [Drv.  IH,  Paet  IV, 

1776.  Warranty  on  sale  of  good-will. 

Sec.  177G.  One  who  sells  the  good-will  of  a  business  thereby  warrants  that 
he  Avill  not  endeavor  to  draw  off  any  of  the  customers. 

1777.  Warranty  upon  judicial  sale. 

Sec.  1777.  Upon  a  judicial  sale  the  only  warranty  implied  is  that  the  seller 
does  not  know  that  the  sale  will  not  pass  a  good  title  to  the  property. 

1778.  Effect  of  general  warranty. 

Sec.  17  TS.  A  general  warranty  does  not  extend  to  defects  inconsistent  there- 
with, of  which  the  buyer  was  then  aware,  or  which  were  then  easily  discernible 
by  him  without  the  exercise  of  peculiar  skill;  but  it  extends  to  all  other 
defects. 

For  a  full  consideration  of  the  various  ques-    Sales,  sec.  929,  where  recent  American  decis* 
tions  arising  out  of  warranties  on  the  sale  of    ions  are  collated  by  Mr.  Corbin. 
chattels,  consult  the  chapter  in  2  Benjamin  on 

CHAPTER  III. 

RIGHTS  AND  OBLIGATIONS  OF  THE  BUYER. 
.J,784.    Prices,  vihen  to  he  paid. 

Sec.  1784.     A  buyer  must  pay  the  price  of  the  thing  sold  on  its  delivery,  and 
?inust  take  it  away  within  a  reasonable  time  after  the  seller  offers  to  deliver  it. 

PajTnent   on  delivery.  —  Pa3nnent   of   the    agreement.     The  commissioners  say  this  with 
^.price  and  delivery  are  concurrent  conditions:     an  "of  course." 

.Beauchamp   v.    Archer,  58  Cal.   4.31;  and  see        WTien   seller  must   act   as   bailee:   See 
'■ante,    sec.    1437,  upon   concurrent   conditions,     ante,  sec.  1744 
The  above  rule  as  to  payment  may  be  varied  by 

- 1785.    Right  to  inspect  gooda. 

Sec  1785,  On  an  agreement  for  sale  with  warranty,  the  buyer  has  a  right 
to  inspect  the  thing  sold,  at  a  reasonable  time,  before  accepting  it;  and  may 
rescind  the  contract  if  the  seller  refuses  to  permit  him  to  do  so. 

Risht  to  inspect  goods-.  See,  generally,  2  Benjamin  on  Sales,  4th  Am.  ed.,  sec.  1042,  note  25. 
Rescission  of  contract  by  seller:  See  an'e,  sac.  1749. 
Rescission  by  buyer  for  breach  of  warranty:  See  next  section. 

1786.   Rights  in  case  of  breach  of  warranty. 

Si:c.  178G.  The  breach  of  a  warranty  entitles  the  buyer  to  rescind  an  agree- 
ment for  sale,  but  not  an  executed  sale,  unless  the  warranty  was  intended  by 
the  parties  to  opei'ate  as  a  condition. 

Breach  of  warranty  entitling  to  rescind,  have  divided,  a  part  holding  that  there  can  be 
Mr.  Corbin,  the  editor  of  tlie  last  American  no  avoidance  or  rescission  of  the  contract  for 
•  edition  of  Benjamin  on  Sales,  sec.  G23,  says:  "It  mere  breach  of  warranty  without  fraud,  and 
was  formerly  held  in  England  that  the  liuyer  of  the  otliers  holding  that  the  buyer  is  entitled  to 
property  warranted  as  to  quality  could  avoid  property  of  the  quality  contracted  for,  and  may 
the  contract  for  breach  of  the  warranty.  But  return  it  and  rescind  the  contract  for  breach  of 
modern  decisions  have  restricted  this  remedy  warranty,  whether  there  was  fraud  or  not  on 
to  cases  where  tlie  warranty  was  fraudulent,  the  jiart  of  the  seller;"  and  then  proceeds  to 
that  is,  where  the  seller  was  aware  of  the  de-  a  classification  and  examination  of  the  de- 
fects against  which  he  warranted  and  concealed  cisiona. 
them.     Ou  this  subject  the  American  courts 

CHAPTER  IV. 

SALE  BY  AUCTION. 

1792.   Sale  by  auction,  what. 

Seo.  1792.     A  sale  by  auction  is  a  sale  by  public  outcry  to  the  highest  bidder 

on  the  spot. 

Auctioneers,  authority  of,  generally:  See  sec.  .32S4  etseq.,  respecting  auctioneers' bondst 
Bees,  23G2,  23G3;  see  regulations  in  Fol,  Code,     license,  etc 

322 


Title  I,  Chap.  IV.]  SALE  BY  AUCTION.  §§  1793-1793 

1793.  Sale,  when  complete. 

Sec.  1793.  A  Bale  by  auction  is  complete  -when  the  auctioneer  publicly  an- 
nounces, by  the  fall  of  his  hammer,  or  in  any  other  customary  manner,  that 
the  thing  is  sold. 

Sale  complete  -when  hciminer  falls:  Jackson  v.  Warren,  32  HI.  331. 

1794.  Withdrawal  of  bid. 

Hue.  1794.     Until  the  announcement  mentioned  in  the  last  section  has  been 

made,  any  bidder  may  withdraw  his  bid,  if  he  does  so  in  a  manner  reasonably 

sufficient  to  bring  it  to  the  notice  of  the  auctioneer. 

"Withdraw^ing  bid:   See  Batenian  on  Anc-  v.  Sprafjue,  20  N.  J.  Eq.  159;  Fi'^her  v.  Seltizor, 

tions,  sec.  30;  and  the  riglit  to  witluhaw  tlie  23  Pa.  St.  308,  in  whicli  last  it  was  thus  decided 

bid  Ijefore  tlie  fall  of  the  hammer  is  maintained  uotwithstamling  the  auctioneer  stated   it  to  he 

by  Itowuiuij  V.  Brown,  Hardin,   181;    O'roteii-  one  of  the  terms  of  the  sale  that  no  bid  should 

me-jerv.  Achlermeyer,  11  Bush,  222;  Nat.  Hank  be  withdrawn. 

17S5.    Sale  under  written  conditions. 

Sec.  1795.  When  a  sale  by  auction  is  made  upon  written  or  printed  condi- 
tions, such  conditions  cannot  be  modified  by  any  oral  declaration  of  the  auc- 
tioneer, except  so  far  as  they  are  for  his  own  benefit. 

Written  conditions  not  alterable  verb-  2  Desau.  320.  "Men  cannot  tell  what  con- 
ally  by  auctioneer:  Lnyton  v.  i/eniien,  3  La.  tracts  they  enter  into  if  the  written  conditions 
Ann.  1;  Wrijht  v.  Jjeili/ne,  Tet.  C  C.  11)9;  of  sale  are  to  be  controlled  by  the  babble 
Rodman  \.  Zilley,  1  N.  J,  Eq.  320;  liaiikiii  x.  of  the  auction-room:"  Jones  v.  Edney,  3 
Matl/ifwa,  7  Ired.  L.  2SG;  Cannon  v.  Mitchell,  Camp.  283. 

1796.  Rights  of  buyer  upon  sale  without  reserve. 

Sec.  1796.  If,  at  a  sale  by  auction,  the  auctioneer,  having  authority  to  do  so, 
publicly  announces  that  the  sale  will  be  without  reserve,  or  makes  any  announce- 
ment equivalent  thereto,  the  highest  bidder  in  good  faith  has  an  absolute  right 
to  the  completion  of  the  sale  to  him;  and,  upon  such  a  sale,  bids  by  the  seller, 
or  any  agent  for  him,  are  void. 

Same  principle  ia  laid  down  in  Bateman  on  announces  a  sale  "without  reserve,"  without 
Auctions,  sec.  139,  and  1  Benjamin  on  Sales,  authority  so  to  do,  he  is  liable  on  his  boml: 
4th  Am.  ed.,  sec.  721.     Where  the  auctioneer     W'arlow  v.  Harrison,  29  L.  J.  Q.  B.  14,  16. 

1797.  By-bidding. 

Sec.  1797.     The  employment  by  a  seller  of  any  person  to  bid  at  a  sale  by 

auction,  without  the  knowledge  of  the  buyer,  without  an  intention  on  the  part 

of  such  bidder  to  buy,  and  on  the  part  of  the  seller  to  enforce  his  bid,  is  a  fraud 

upon  the  buyer,  which  entitles  him  to  rescind  his  purchase. 

By  bidding    avoids    sale. — Puffing  at  an  114  Mass.  187,  191;  Moncriefv.  Oold^horoiigh, 

auction  8,\le  entitles  the  buyer  to  an  avoidance  1  Am.  Dec.  407;  and  this  althougli  tlie  owner 

thereof:    Veazlew.   Williams,  8  How.  l.'U,  1.^3;  did  not  instigate  the  by-bidding,  if  he  retains 

Ndt.  liaiilc  y.Sprague,  20  N.J.  E(].  ir)0;  Yerkes  the  fruits  thereof:    Veazie  v.  Williams,  8  How. 

V.  IKi/soH,  81  Pa.  St.  9,  17;  Curiinv.  Aspintcall,  134. 

1798.  Auctioneer's  memorandum  of  sale. 

Sec.  1798.  "When  property  is  sold  by  auction,  an  entry  made  by  the  auc- 
tioneer in  his  sale-book,  at  the  time  of  the  sale,  specif^'ing  the  name  of  the 
person  for  whom  he  sells,  the  thing  sold,  the  price,  the  terms  of  sale,  and  the 
name  of  the  buyer,  binds  both  the  jjarties  in  the  same  manner  as  if  made  by 
themselves.  [Amendment,  approved  March  30,  1874;  Amendments  1873—4,  244; 
took  effect  July  1,  1874.] 

Auotioneer  agent  to  make  m?moran-  case  out  of  the  statute  of  frauds,  the  note  to  13 

dmn:  Sec  ante,  sec.  1G21,  and  note.     See  also,  Am.   Dec.  393.  and  1  Benjamin  on  Sales,  4th 

upon    how   and   by   whom   the    memorandum  Am.  ed.,  sec.  2G9,  in  note, 
khould  be  signed  at  auction  sales  so  as  to  take  the 

323 


§§  1804-1813 


OBLIGATIONS. 


[Div.  m,  Part  IV, 


TITLE  II. 

EXCHANGE. 

1804.  Exchange,  what. 

Sec.  1804.     Exchange  is  a  contract  by  wliich  the  parties  mutually  give,  or 

agree  to  give,  one  thing  for  another,  neither  thing,  or  both  things,  being  money 

only. 

Exchange  of  lands — An  attempted  ex-  to  the  other,  and  where  neither  gave  nor  re- 
change  of  land  is  a  nullity  where  neither  party  ceiveJ  posaesaion:  Bixby  v.  Btnl,  59  Cal.  522. 
had  a  proprietary  title  which  he  could  convey 

1805.  Form  of  contract. 

Sec.  1805.  The  provisions  of  section  seventeen  hundred  and  thirty-nine 
apply  to  all  exchanges  in  which  the  value  of  the  thing  to  be  given  by  either 
party  is  two  hundred  dollars  or  more. 

1806.  Parties  have  rights  and  obligations  of  sellers  and  buyers. 

Sec.  1806.  The  provisions  of  the  title  on  sale  apply  to  exchanges.  Each 
party  has  the  rights  and  obligations  of  a  seller  as  to  the  thing  which  he  gives, 
and  of  a  buyer  as  to  that  which  he  takes. 

1307.    Warrant]/  of  money. 

Sec.  1807.  On  an  exchange  of  money,  each  party  thereby  warrants  the  geun- 
iaeness  of  the  money  given  by  him. 


TITLE   IIL 

DEPOSIT. 

Chapter  I.    Deposit  m  General , 1813 

II.     Deposft  for  Keeping 1833 

m.    Deposit  for  Exchange 1878 

CHAPTER  I. 
DEPOSIT  IX  GEXERAL. 

Article  I.    Natitrk  and  Creation  of  Deposit I8l3 

U.    Obligations  of  tue  Depositary 1822 


ARTICLE  I. 

kature  and  creation  op  deposit. 
1813.    Deposit,  kindif  of. 

Sec.  lsi;{,     A  deposit  may  be  voluntary  or  involuntary;  and  for  safe-keeping 
or  for  exchanere. 


Deposit  for  keeping:  Sees.  IS^.*?,  pod,  et 
Beq. 

Gratuitous  deposit,  and  iuoidsuts:  Sees. 
1S44.  /.  >/,  .t  SL-i|. 

Depo.it  for  hiro:  Sees.  I8.")l,  -poitl,  et  seij. 

Deposit  for  ex  ^haass:  Sec.  IS.')S,  jos/. 

Loin  for  use:  Sues.  ISSl  et  86  |.;  loin  for 
excli;uit,'ii:  Sec.  l!)02;  loan  of  money:  Sec.  It)l2. 

Hiring;  .Si-e  sees.  \\)1'),  fioxi,  et  seij. 

Innkeeoers:  Sees.  IS.j:),  />0'<l,  «t  .scrj. 

Common  carriars:  Sees.  2085  et  iteq. 


Pledge:  Sees.  29S6,  poxt,  et  seq. 

Aotions  by  bailor  and  bailee. — Trover  by" 
bailor:  See  note  to  /ioiUer's  A'lm'r  v.  Skull,  1 
Am.  Doc.  TjST;  trespass  by  bailor:  See  note  to 
Or.H<r  V.  Storms,  IS  Id.  557;  and  with  respect 
to  tlie  election  of  form  of  action  l)y  bailor 
a.;aiiHt  biilee  for  conversion,  whether  trover, 
(usirnfisU,  or  case,  see  Lockiooo'l  v.  Bill,  13 
An.  Dec.  5.39;  trover  and  trespass  by  bailee: 
See  notes  to  cases  supra,  iu  1  Ani.  Dec.  5S7i  and 
18  id.  550. 


S24 


Title  III,  Chap.  I.]  DEPOSIT  IN  GENERAL.  §§  1814-1822 

1814.  Voluntary  deposit,  how  made. 

Sec.  1814.  A  voluntary  deposit  is  made  by  one  giving  to  another,  -with  his 
consent,  the  possession  of  personal  property  to  keep  for  the  benefit  of  the 
former,  or  of  a  third  party.  The  person  giving  is  called  the  depositor,  and  the 
person  receiving  the  depositary. 

Finder  of  lost  article:  See  sees.  1864,  post,  lS22et8eq.;  and  for  rights  and  liahilitiea  of 
et  sef|.  various  classes  of  bailees,  see  the  references  ia 

Obligations  of  the  depositary:  See  sees,     note  to  last  section. 

1815.  Involuntary  depoHl,  how  made. 

Sec.  1815.     An  involuntary  deposit  is  made: 

1.  By  the  accidental  leaving  or  placing  of  personal  property  in  the  posses- 
sion of  any  person,  without  negligence  on  the  part  of  its  owner;  or, 

2.  In  cases  of  fire,  shipwreck,  inundation,  insurrection,  riot,  or  like  extraor- 
dinary emergencies,  by  the  owner  of  personal  property  committing  it,  out  of 
necessity,  to  the  care  of  any  person. 

Involuntary  deposit. — This   section   was  commented  upon  in  Schonler  on  Bailment,  p. 

citi'd  ill   Ureliier  v.  Greiiier,  58  Cal.   115,  1J2,  2d;  Stury  on  Bailments,  sec.  45. 

to  cliaige  tiie  husband  as  involuntaiy  depositee  Involuntary  deposit  is  gratuitous:    Sea 

for  his  wife  of  notes  and  mortgages  redeemed  sec.  \S4'},  pot. 

by  h  ni  wit'.i  her  money.  Degree  of  care  requisite:    See  post,  sec. 

Sued.  2.     Involuntary  deposit  in  cases  1S4G. 

of  einerseucy  must  be  accepted:    See  next  Duties  of  depositary,  when  cease:  See 

section.  post,  sec.  18-17. 

This  "necessary"  deposit  of  the  civilians  is 

1818.   Same. 

Sec.  181G.  The  person  with  whom  a  thing  is  deposited  in  the  manner  de- 
scribed in  the  last  section  is  bound  to  take  charge  of  it  if  able  to  do  so. 

1817.    Deposit  for  safe-keeping,  what. 

Skc.  1817.  A  deposit  for  keeping  is  one  in  which  the  depositary  is  bound  to 
return  the  identical  thing  deposited. 

Deposit  for  keeping:  See  j^ost,  sees.  1833  71.     If  not  guilty  of  gross  negligence,  the  de- 

et  pe(i.  positary  U  not   respousii>le   for   any  accident 

The  code  commissioners  say:  "The  deposit  whicli  occurs,  for  his  agreement  is  to  keep  the 

of  the  text  is  a  'special  deposit,'  treated  and  bailment,  and  not  to  keep  it  safely:  ytory  on 

illustrated  at  length:  Edwards  on  Bailm.,  GG-  Contracts,  731,  sec.  091." 

1813.    Deposit  for  exchange,  what. 

Sec.  1818.  A  deposit  for  exchange  is  one  in  which  the  depositary  is  only 
bound  to  return  a  thing  corresponding  in  kind  to  that  which  is  deposited. 

Deposit  for  exchange  transfers  title:  Sec.  ment.  Money  deposited  in  a  bank  whicli  mingles 
1S7S,  jiO'<t.  with  other  moiiej's  there  kept  becomes  a  debt 

Tlie  note  appended  to  section  1818  by  the  to  l)e  recovered  with  interest:  See  Edwards  on 
commissioners  declares  tlie  same  thing:  "The  Bailm.,  Gii;  see  also  sec.  1S7S,  and  note,  ]>oM." 
deposit  of  tlie  text  is  in  the  nature  of  a  general  Loan  for  exchange:  See^o^i,  sees.  l6u2  et 
deposit,  and  creates  a  debt  rather  than  a  bail-     seq. 

ARTICLE   II. 

OBLIGATIONS  OF  THE  DEPOSITARY. 

1822.    Depositary  must  deliver  on  demand. 

Seo  1822.  A  depositary  must  deliver  the  thing  to  the  person  for  whose 
benefit  it  was  deposited,  on  demand,  whether  the  deposit  was  made  for  a  speci- 
fied time  or  not,  unless  he  has  a  lieu  upon  the  thing  deposited,  or  has  been 
forbidden  or  prevented  from  doing  so  by  the  real  owner  thereof,  or  by  the  act 
of  the  law,  and  has  given  the  notice  required  by  section  eighteen  hundred  and 
twenty -five. 

Depositary  must  reitore  tli3  idsntioal  coin,  wliereitwas  agreed  that  the  depositary 
thing  ilciii)s;tetl  on  demand:  Story  on  liaiLu.,  slioiiM  pay  interest,  the  special  de|)0sit  is  turned 
wc.  UG.     But  iu  case  of  a  special  deposit  of  gold     to  an  open  account:  Hathaway  v.  Uracil/,   26 

325 


S§  1823-1827  OBLIGATIONS.  t^-v.  Ill,  Part  IV, 

Cal.  581;  TToivard  v.  Hophe.n,  33  Id.  399.     If  it  3G5,  376.    But  where  the  depositor  has  no  title, 

be  injured  or  lost   by  the  dt-positary's  f^roas  and  the  real  owner  is  entitled  to  and  demands 

negligence  he  is  responsible  tiicrefor:  Id.     Or-  possession,  the  depositary  may  deliver  to  him: 

diuai-y  dilii^ence,  at  least,  is  required  of  a  de])<)si-  We.nterii  T ranifpoHation  Co.  v.  Barlier,  5(i  N.  Y. 

tary  for  hire  for  the  preservation  of  the  thing  544;  Kelli/  v.  I'atche.ll,  5  W.  Va.  5S.');  and  see 

deposited:  Sec.  1852,  pout.  Story   on   Bailments,  sec.  102.     The  jiia  tertii 

Depositary  is  not  bound  to  restore  without  may  be  relied  upon  by  the  bailee  where  his 

demand:  Sec.   1823.     But  whether  demand  is  bailor's  possession  was  fraudulently  obtained: 

necessary  to  start  the  nmiiingof  interest  where  JJnyden  v.  Davis,  9  Cal.  573.     With  resi)ect  to 

the  depositary  has  disclaimed  his  relation  with  the  bailee's  riglit  to  set  up  title  iu  a  third  per- 

the  (le[)ositor,  see  Dirkhisonv.  Owen,  11  Cal.  71.  son  iu  defense  to  the  bailor's  action,  see  note 

To  ■whom  restitution  to  be  made. — As  a  to  //os^/r's  Admr  v.  Skull,  1  Am.  Dec.  583. 

general  rule,  the  depositary  must,  on  deman<l,  Depositary's  lien:  Consult  section  ,3051  for 

return  the  thing  deposited  to  the  person  for  a  general  lien  upon  personalty  dependent  ou 

whom  the  deposit  was  made,  or  to  his  agent:  possession,  arising  from  service  done  to  owner 

Bai'S  V.  Stanton,   1    Duer,  79;  Story  on  Bail-  iu  respect  thereto;  see  also  in  note  to  section 

ments,  sec.    102.     And   provision   is   made   in  1824,  depositary  has  no  lien  for  debt  not  arising 

section  1826  for  the  protection  of  the  depositary  out  of  t!ie  deposit;  see   also   section    1833,  ia 

who  delivers  to  the  dejiositor  after  claims  of  note,  lien  for  expenses  incurred, 

alleged  true  owners.  Notice  of  adverse  proceedings:  Sec.  1825. 

Oiilinarily  the   depositary  cannot  deny  his  Lieu  of  innkeepers:  See  sees.  ISGl  et  seq. 
depositor's  title:  Marvin  v.  EUwood,  11  Paige, 

1823.  No  obligation  to  deliver  without  demand. 

Se{;.  1823,     A  depositary  is  not  bouud  to  deliver  a  thing  deposited  without 

demand,  even  where  the  deposit  is  made  for  a  specified  time. 

See  note  to  section  1822,  .vipra.     If  tliere  has     action  lies  without  a  demand  and  refusal;  Afc- 
been  a  wrougfui  conversion  by  the  bailee,  an     Lain  v.  Huffman,  30  Ark,  428. 

1824.  riace  of  delivery. 

Sec,  1824.     A  depositary  must  deliver  the  thing  deposited  at  his  residence  or 
place  of  business,  as  may  be  most  convenient  for  him. 
Delivery  in  sales :  See  sees,  1753  et  seq. 

1825.  Notice  to  owner  of  adverse  claim. 

Sec.  1825,     A  depositary  must  give  prompt  notice  to  the  person  for  whose 

benefit  the  deposit  was  made,  of  any  i^i'oceediugs  taken  adversely  to  his  interest 

in  the  thing  deposited,  which  may  tend  to  excuse  the  depositary  from  delivering 

the  thing  to  him. 

Adverse  claim:  Scravton  v.  Farmers^  <t  M.     whom  the  deposit  was  made  continues:  Sec. 
Ba/ilc,  24  N.    Y.   421.     Unless   the   notice  be     1822,  supra. 
given,  the  duty  to  return   to  the  persou  for 

1826.  Notice  to  oioner  of  thing  lorongfulhj  detained. 

Sec.  182G.  A  depositary  who  believes  that  a  thing  deposited  with  him  is 
wrongfully  detained  from  its  true  owner  may  give  him  notice  of  the  deposit; 
and  if  within  a  reasonable  time  afterwards  he  does  not  claim  it,  and  sufiicienlly 
establi-sh  his  right  thereto,  and  indemnify  the  depositary  against  the  claim  of 
the  depositor,  the  depositary  is  exonerated  from  liability  to  the  person  to  whom 
he  gave  the  notice,  upon  returning  the  thing  to  the  depositor,  or  assuming,  in 
good  faith,  a  new  obligation  changing  his  position  in  respect  to  the  thing,  to 
his  prejudice. 

1827.  Deliver]!  of  thing  owned  jointhj ,  etc. 

Sec  1827.  If  a  thing  deposited  is  owned  jointly  or  in  common  by  persona 
who  cannot  agree  upon  the  manner  of  its  deliveiy,  the  depositary  may  deliver 
to  each  his  proper  share  thereof,  if  it  can  be  done  without  injury  to  the  thing. 

"  This  provision  is  iiew,  and  intemled  to  joint  owners  must  be  redelivered  on  the  joint 

obviate  a  di;iiculty  wliich  m  y  soinetimes  arise,  demand  of  the  p  M-sons   making   the   deposit,' 

It  in  fact  c'langes  the  I'ule  Kit  f(jrt.liin  K.lwards  anJ   in  .Story  ou  Bailm.,   sees.    111-117;  .(ones 

oaBailm.  85,  tliat  'chattels  depos.ted  by  several  on  Bailin.  51:  "  Code  commissioners'  note. 

326 


Title  III,  Chap.  II.]  DEPOSIT  FOR  KEEPIJJG.  §§  1833-1S37 

CHAPTER  II. 
DEPOSIT  FOR  KEEPING, 

Amicle  I.  General  Peovistons ISX\ 

II.  Gratuitous  Deposit 1844 

III.  Storage 1851 

IV.  Innkeepers 1859 

V.  Finding » 18G4 

ARTICLE  I. 

GENERAL   PRO\asiONS. 

1833.  Depositor  must  indemmfy  depositary. 

Sec.  1833.     A  depositor  must  indemnify  tlie  depositary: 

1 .  For  all  damage  caused  to  him  by  the  defects  or  vices  of  the  thing  deposited; 
and, 

2.  For  all  expenses  necessarily  incurred  by  him  about  the  thing,  other  than 
such  as  are  involved  in  the  nature  of  the  undertaking. 

Liability  of   depositor  to  depositary. —  deposit  lias  cost  liim.     He  is  to  indemnify  tha 

"The   d(;{)ositary   is   generally  entiiled  to   be  depositary  for  tlie  losses  which  the  thing  do- 

reiuibursed    all    the    necessary    expenses     to  posited  may  have  occasioned  him.'   The  Roman 

which  he  has  been  subjected  for  the  preserva-  law  inflicts  a  double  compensation  for  niiscon- 

tion  of  the  deposit.     And  by  the  Roman  and  duct  of  the  bailee,  on  the  ground   tliat  publio 

French  law  lie  is  entitled  to  a  lien  for  all  such  policy  recjuires  this  jiertidy  to  be  so  puni.shcd 

expenses  ui>on  the  deposit,  and  indemnity  for  as  to  suppress  temptation  to  do  wrong.     Our 

all  losses  occasioned  thereby:  Ayliil'e,  I'and.,  b.  law  only  exacts  ample  compensation  for  actual 

4,  tit.   17,  pp.  i>'-l,  x>~2;   1  Domat,  b.  1,  tit.  7,  injury  and  loss;  Story  on  Bailm.,  sec.  S.*];  but 

sees.   2,    3,    arts.    1-3,    14;    PothitT  Traite    de  j)unislies  a  conversion  as  a  larceny:  See  Pen. 

Deiiot.,  n.  50,  C9,  74;    Code  La.,  arts.  2927-^  Code,  sec.  4So:"  Commissioners'  note. 

2931 ;  Ersk.  Inst.,  b.  3,  tit.  1,  sec.  28;  1  Domat,  Whether  the  dcpositai'y  would  be  considered 

b.  1,  tit.  16,  sec.  1,  art.  4.    Code  La.,  art.  21:31,  to  have  a  lien  for  reimbursement  or  indemnity 

is  as  follows:  'He  who  has  made  a  deposit  is  under  this  section,  compare  sees.    1839,  3031; 

bound  to  reind)nrse  the  depositary  the  money  and  Story  on  Bailm.,  s  c.  121. 

he  has  advanced  for  the  safe-keeping  of   the  L'nder's  liability  for  defects  of  articles 

thing,  and  to  indemnify  him  for  all  that  the  borrowed:  See  sec.  1894. 

1834.  Obligailon  of  depositary  of  animals. 

Sec.  1834.     A  depositary  of  living  animals  must  provide  them  with  suitable 
food  and  shelter,  and  treat  them  kindly. 
Lien  of  keepers  of  live-stock:  See  post,  sec.  3051. 

1835.  Obligations  as  to  use  of  thing  deposited. 

Sec  1835.  A  depositary  may  not  use  the  thing  deposited,  or  permit  it  to  be 
used,  for  any  purpose,  without  the  consent  of  the  depositor.  He  ma}'  not,  if 
it  is  purposely  fastened  by  the  depositor,  open  it  without  the  consent  of  the. 
latter,  except  in  case  of  necessity. 

S<.'e  next  section. 

Kiring:  See  jioat,  sees.  1925  et  seq. 

1836.  Liability  for  damage  arising  from  wrongful  use. 

Sec  183G.     A  depositary  is  liable  for  any  damage  happening  to  the  thing 

deposited,  during  his  wrongful  use  thereof,  unless  such  damage  must  inevitably 

have  happened  though  the  jDvoperty  had  not  been  thus  used. 

See  the  subject  of  user  of  deposit  by  the  depositary  considered  fully  in  Story  on  Bailments, . 
Bees.  89-92. 

1837.  Sale  of  thing  in  danger  of  perishing. 

Sec  1837.  If  a  thing  deposited  is  in  actual  danger  of  perishing  before 
instructions  can  be  obtained  from  the  depositor,  the  depositary  may  sell  it  for 
the  best  price  obtainable,  and  retain  the  proceeds  as  a  deposit,  giving  immedi- 
ate notice  of  his  proceedings  to  the  depositor. 

See  Stoiy  ou  Bailments,  sec.  67;  Porthier  Traite  de  Droit,  n.  42-44. 

327 


g§  1S3S-1S47  0BLI'.^,ATT0N8.  [Div.  Ill,  Pakt  IV, 

1GS3.    Ii'junj  to  or  loss  of  thv''^i  fl^'pjsitcd. 

Sec.  1833.  If  ii  thing  is  :oat  or  injure;]  diu-ilig  its  deposit,  and  the  deposi- 
tary refuses  to  inform  the  depositor  of  the  circumstances  under  which  the  loss 
or  injury  occurred,  so  far  us  he  has  iuformatiou  concerning'  them,  or  willfully 
misrepresents  the  circuujstances  to  him,  the  depositary  is  presumed  to  have 
willfully,  or  by  gross  negligence,  permitted  the  loss  or  injury  to  occur. 

Uinler  tliis  section  (leclaratiiins  Ijy  the  ilepos-  of  the  loss  are  not  binding  on  the  depositary: 
itary's  attorney  at  law  as  to  the  circunistaucea     ]ViUon  v.  <S'.  P.  Ii.  Ii.,  53  Cal.  733. 

1S39.   Service  rendered  by  drpositari/. 

Sec.  1839.  So  far  as  any  service  is  rendered  by  a  depositaiy,  or  required 
from  him,  his  duties  and  liabilities  are  prescribed  by  the  title  on  employment 
and  service. 

See  .post;  sees.  1965  et  seq. 

1840.    Limitation  of  liability  of  depositary  for  negligence. 

Sec.  1840.  The  liability  of  a  depositary  for  negligence  cannot  exceed  the 
amount  which  he  is  informed  by  the  depositor,  or  has  reason  to  suppose,  the 
thing  deposited  to  be  worth.  [Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  244;  took  effect  July  1,  1874.] 

ARTICLE  II. 

GRATUITOUS   DEPOSIT. 

J 844.    Gratuitous  deposit,  what. 

'(EC.  1844.     Gratuitous  deposit  is  a  deposit  for  which  the  depositary  receives 

no  consideration  beyond  the  mere  possession  of  the  thing  deposited. 

Gratuitous   deposit. — This   definition    an-  and   services  are  the  principal  objects   of  the 

ewers  to  that  of  the  dcpositinn  of  the  civil  law.  parties,  and  the    thing    is    inetvly  aci-essorial. 

The  code  commissioners,  however,  say  it  corre-  Philosopliically,  or  even  tcchnicaUy,  it  may  be 

Bponds  to  the  nuindatmn.     "A  m<indatum,  or  doul^ted  wliethf-r  this  distinction  really  exists: 

usSir  William  Jones  denominates  it,  'mandate,'  Jones  on  Bailni.,  53." 

may  be  said  to  be  what  is  here  designated  as  a  Degree  of  care  necessary:    See  next  sec- 

'gratuitous  deposit;"  and  then  say:  "In  each  tion.     If  this  l)aili)ient  eorres[iond  to  the  mnn- 

contract  'mandate' and  'deposit,' eras  we  term  datum  as  generally  understood,   re(jniiing    on 

it,   'gratuitous  deposit,' there  are  like  essen-  the  part  of  the  bailee  some  service  to  be  per- 

tials;  in  each  '  there  is  custody,  and  labor  and  formed  with  respect  to  the  depotsit,  then  sections 

service  to  be  performed.'     The  true  distinction  1S."9,  -yitpra,  and  sections  IDTo,  197(i,  1077, /;o.<;^, 

between  them  is,  that  in  case  of  a  deposit  the  must  be  read  together  with  section   1S40,  in 

princi]ial  object  of  the  parties  is  the  custody  of  determining  the  degree  of  care  which  this  bailee 

the  thing,  and  tire  service  and  labor  are  mere  must  use. 
accessorial;  in  the  case  of  a  mandate,  the  labor 

1845.    Nature  of  invoiuntary  deposit. 

Sec.  1845.  An  involuntary  deposit  is  gratuitous,  the  depositary  being  entitled 
to  no  reward. 

Involuntary  deposit  defined:  See  ante,  sec.  1S15. 

1346.    Degrees  of  care  required  of  gratuitous  depositary. 

Sec  184G.  A  gratuitous  depositary  must  use  at  least  slight  care  for  the 
preservation  of  the  thing  deposited. 

Degree  of  care  requisite:  See  note  to  sees.  1844,  supra. 

1847.    His  duties  cease  when. 
Sec.  1847.     The  duties  of  a  gratuitous  depositary  cease: 
i.  Upon  his  restoring  the  thing  deposited  to  its  owner;  or, 
2.  Upon  his  giving  reasonable  notice   to  the  owner  to  remove  it,  and  the 
owner  failing  to  do  so  within  a  reasonable  time.     But  an  involuntary  deposi- 
tary, under  subdivision  two  of  section  eighteen  hundi'ed  and  fifteen,  cannot 
give  such  notice  until  the  emergency  which  gave  rise  to  the  deposit  is  past. 

328 


Ttile  III,  UuAP.  II.]  DEPOSIT  FOIt  KE"PIXG.  §§  IS51-1S55 

ARTICLE  III. 

STORAGE. 

1851.  Deposit  for  Jure. 

Sec.  1851.  A  deposit  not  gratuitous  is  called  storage.  The  depositary  in  such 
case  is  called  a  depositary  for  hire. 

Hiring  ill  general:  See  post,  sec.  1925.  See  letting  and  hiring,  in  Storj'  on  Bailments,  sec. 
also  the  various  subdivisions  of  the  contract  of     ."70. 

1852.  Degree  of  care  required  of  di'positary  for  hire. 

Sec.  1852.  A  depositary  for  hire  must  use  at  least  ordinary  care  for  the  pres- 
ervation of  the  thing  deposited. 

Degree  of  care  requisite. — The  code  com-  Liability  of  inliaspers:  See  sec.  1859. 

mission e IS  say,  in  explanation  of  this  rule,  one  Conmoa  carriers:  Sees.  "ilOJ,  2114,  2194. 

which  varies" wih  the  kind  of  hiring:  "The  Lia'jlllty    of    vyareliousemaii:    See    jiont, 

hiring  of  the  text  is  \\ here  the  bailee  has  in  his  Pecs.  2i".:0,  2121,  ami   the  note  to  Schmidt  v. 

keejiing  goods  about  which  he  is  to  do  some-  Blood,  24  Am.  Dec.  145,  where  the  subject  is 

thing  ior  wliich  he  is  to  receive  compensation  treated.     A  railroad  carrier's  lialiility  as  such 

from  the  owner  or  bailor,  and  this  bailee  is  a  becomes  tranLformcd  to  that  of  a  wliarchouse- 

depositary  for  hire,  and  of  the  thing  liad  he  is  man  on  delivcrmg  the  goods  at  its  wharehouse 

obliged   to  take  ordinary  care."     Title  is  not  on  notice  of  the  consignee:  Hirschjidd  v.  C.  P. 

divested  by  such  deposit:  Eohinaonw  llaas,  40  II.  11.  Co.,  5G  Cal.  4S4. 
Cal.  474. 

1853.  Bate  of  compensation  for  fraction  of  a  loe.eJc,  etc. 

Sec.  1853.  In  the  absence  of  a  different  agreement  or  usage,  a  depositary  for 
hire  is  entitled  to  one  "week's  hire  for  the  sustenance  and  shelter  of  living  ani- 
mals during  any  fraction  of  a  week,  and  to  half  a  month's  hire  for  the  storage 
of  any  other  property  during  any  fraction  of  a  half-month. 

"  This  is  believed  to  be  the  ordinary  or  gen-  vent  misunderstandings  or  misapprehensions:" 
eral  rule  or  usage,  and  is  made  the  rule  to  pre-     Statement  by  commissioners. 

1854.  Termination  of  deposit. 

Sec.  1854.  In  the  absence  of  an  agreement  as  to  the  length  of  time  during 
which  a  deposit  is  to  continue,  it  may  be  terminated  by  the  depositor  at  any 
time,  and  hy  the  depositary  upon  reasonable  notice. 

Termination  by  depositor. — Compare  the     is  specified;  section  1 855,  to  a  case  where  there 
preceding  r.nd  the  next  sections.     Section  1853  .is  sucii  an  understanding, 
nmst  refer  to  a  deposit  where  no  length  of  time 

1855.  Same. 

Sec.  1855.  Notwithstanding  an  agreement  respecting  the  length  of  time  dur- 
ing which  a  deposit  is  to  continue,  it  may  be  terminated  by  the  depositor  on 
paving  all  that  would  become  due  to  the  depositary  in  case  of  the  deposit  so 
continuing. 

An  Act  in  relation  to  warehouse  and  vliarji>i<]pr  rrceiptn.  and  other  matters  pertaining  thereto. 
[Approved  April  1,  1878;  1877-8,  OiO.] 
Issuance  of  receipt  for  cjoo'Js. 

SwTioN  1.  That  no  warehouseman,  wharfinger,  or  other  person  doing  a  storage  business, 
ehall  issue  any  receipt  or  voucher  for  any  good-s,  wares,  merchandise,  grain,  or  other  produce  or 
commodity,  to  any  person  or  i)ersons  purjiorting  to  be  tlie  owner  or  owners  tlieroof,  unless  such 
goods,  wares,  merchandise,  grain,  or  other  produce  or  commoility,  shall  have  l)fcii  Itona  fide 
received  into  store  by  such  warehouseman,  vviiarfinger,  or  otlKr  person,  and  shall  be  in  store  and 
under  h  s  control  at  the  time  of  issuing  such  receipt. 
Issuhiij  of  7-i'rei/U  upon  goods  as  security  f>r  money  /nanfd. 

Si:c.  2.  That  no  wareliouseman,  whariinger,  or  otlier  person  engaged  in  the  storage  business 
shall  issue  any  receipt  or  other  voucher  upon  any  g xxis,  wares,  merchandise,  gr;.iii,  or  other 
proiluce  or  commodity,  to  any  person  or  |iLi-sons.  as  security  for  any  money  l.ianed,  or  other 
indebtedness,  unless  such  goods,  wares,  merchandise,  giain,  or  other  produce  or  commodity, 
shall  be,  at  tlie  time  of  issuing  such  receipt,  tlie  property  of  such  warehouseman,  whariinger,  or 
other  person,  shall  be  in  store  and  under  control  at  the  time  of  issuing  such  receipt  or  voucher 
as  aforesaid. 
Sfvoiid  ri-n'ipfx  not  to  he  is'<ued,  except,  (tc. 

Sko.  .S.  That  no  warehouseman,  wharfinger,  or  other  pcson  as  aforesaid,  shall  issue  any 
second  receipt  for  any  goods,  wares,  merchaudise,  graiu,  or  other  produce  or  commodity,  while 

329 


§§  1S59,  ISGO  OBLIGATIONS.  [Div.  Ill,  Part  IV. 

any  fonner  icccipt  for  any  such  goods  or  chattels  as  aforesaid,  or  any  part  thereof,  sliall  be  out- 
standing and  uncanceled. 
liemoval  of  (joodn  irhen  receipt  is  issued, 

Sec.  4.  That  no  warehouseman,  wharfinger,  or  other  person  as  aforesaid,  shall  sell  or  incum- 
ber, ship,  transfer,  or  in  any  manner  remove  beyond  his  immediate  control,  any  goods,  wares, 
merchandise,  grain,  or  other  produce  or  commodity  for  which  a  receipt  shall  have  been  given  as 
aforesaid,  without  the  written  assent  of  the  person  or  persons  holding  such  receipt  or  receipts 
plainly  indorsed  thereon  in  ink. 
Receipts  clashed. 

Sec.  5.  Warehouse  receipts  for  property  stored  shall  be  of  two  classes:  1.  Transferable  or 
negotiable;  and,  2.  Non-transferable  or  non-negotiable.  Under  the  first  of  tliese  classes,  all 
property  shall  be  transferable  by  the  indorsemement  of  the  party  to  whose  order  such  receipt 
may  be  issued,  and  such  indorsement  of  tlie  party  shall  be  deemed  a  valid  transfer  of  the  prop- 
erty represented  by  such  receipt,  and  may  be  in  blank  or  to  the  order  of  another.  All  ware- 
house receipts  for  property  stored  shall  distinctly  state  on  their  face  for  what  they  are  issued,  as 
also  the  brands  and  distinguishing  marks;  and  in  tlie  case  of  grain,  the  number  of  sacks,  and 
number  of  pounds,  and  kind  of  grain;  also  the  rate  of  storage  per  month  or  season  charged  for 
storing  the  same. 

lieceipl  to  bf  indorsed. 

Sec.  C.  No  wareliouseman,  or  other  person  or  persons,  giving  or  issuing  negotiable  receipts 
for  goods,  grain,  or  other  property  on  storage,  shall  deliver  said  property,  or  any  part  thereof, 
without  indorsing  upon  the  back  of  said  receipt  or  receipts,  in  ink,  the  amount  and  date  of  the 
deliveries.  Nor  shall  he  or  they  be  allowed  to  make  any  offset,  claim,  or  demand  other  tiian  is 
expressed  on  the  face  of  the  receipt  or  receipts  issued  for  the  same,  when  called  upon  to  deliver 
said  goods,  merchandise,  grain,  or  other  property. 
Uo  delivery  except  on  order. 

Sec.  7.     No  warehouseman,  or  person  or  persons  doing  a  general  storage  business,  giving  or 
issuing  non -negotiable  or  non-transferable  receipts  for  goods,  grain,  or  other  property  on  storage, 
siiall  deliver  said  property,  or  any  part  thereof,  except  upon  the  written  order  of  the  person  or 
persons  to  whom  the  receipt  or  receipts  were  issued. 
Kon-nerjotiahle  receipts,  how  marked. 

Sec.  8.     All  receipts  issued  by  any  warehouseman  or  other  person  under  this  act,  other  than 
negotiable,  shall  have  printed  across  their  face,  in  bold,  distinct  letters,  in  red  ink,  the  words 
"  non-negotiable. " 
Loss  by  fire. 

Sec.  9.     No  warehouseman,  person  or  persons  doing  a  general  storage  business,   shall  be 
responsible  for  any  loss  or  damage  to  property  by  fire  while  in  his  or  their  custody,  provided 
reasonable  care  and  \igilance  be  exercised  to  protect  and  preserve  the  same. 
Felony. 

Sec.  10.  Any  warehouseman,  wharfinger,  person  or  persons,  who  shall  violate  any  of  the 
foregoing  provisions  of  tliis  act,  is  guilty  of  felony,  shall  be  subject  to  indictment,  and  upon 
conviction,  shall  be  fined  in  a  sum  not  exceeding  five  thousand  dollars  ($5,000),  or  imprisonment 
iu  the  state  prison  of  this  state  not  exceeding  five  years,  or  both.  And  all  and  every  person 
aggrieved  by  the  violation  of  any  of  the  provisions  of  this  act  may  have  and  maintain  an  action 
against  tlie  person  or  persons  violating  any  of  the  foregoing  provisions  of  this  act,  to  recover  all 
damages,  immediate  or  consequent,  which  he  or  they  may  have  sustained  by  reason  of  any  such 
violation  as  aforesaid,  before  any  court  of  competent  jurisdiction,  whether  such  person  shall  have 
been  convicted  under  the  act  or  not. 

AKTICLE  IV. 

INNKEEPERS. 

1859.  Innkeeper's  liability. 

Sec.  1859.  An  innkeeper  is  liable  for  all  losses  of  or  injuries  to  personal 
property  2>laeed  by  bis  guests  under  bis  care,  unless  occasioned  by  an  irresisti- 
ble sui:)erLuman  cause,  by  a  public  enemy,  by  the  negligence  of  the  owner,  or 
by  the  act  of  some  one  whom  he  brought  into  the  inn. 

Liability  of  innkeepers:  See  the  very  in-    457;  and  Gray  v.  Commonwealth,  35  Id.  124, 
teresthig  and  important  decision  of  Pinb'rton    and  note  125. 
V.  Woodirard,  .3.'}  L'al.  557;  and  Mateer  v.  Bruwn,        See  next  section. 

1  Id.  221.     For  a  discussion  of  wiiat  is  an  inn.        Refusing  to  receive  guest  a  misdemeanor: 
and  the  rii^hts  ami  liabilities  of  innkeepers,  see     Pen.  Code,  sec.  365. 
the  note  to  CLute  v.  Whjijins,  7  Am.  Dec.  449- 

1860.  Ilnw  exempted  from  liability. 

Sec.  18G0.  If  an  innkeeper  keeps  a  fire-proof  safe,  and  gives  notice  to  a  guest, 
either  personally  or  by  putting  up  a  printed  notice  in  a  prominent  place  in  the 
room  occupied  by  the  guest,  that  he  keeps  such  a  safe,  and  will  not  be  liable  for 
money,  jewelry,  documents,  or  other  articles  of  unusual  value  and  small  com- 

330 


1856.  Lien  for  Storage  Charges.  A  depositary  for  hii-e 
has  a  lien  for  storage  [cliarges  and  for  advances  and  insur- 
ance incurred  at  the  request  of  the  bailor,  and  for  money 
necessarily  expended  in  and  about  the  care,  preservation 
and  keeping  of  the  property  stored,  and  he  also  has  a  lien 
for  money  advanced  at  the  request  of  the  bailor,  to  discharge 
a  prior  lien,  and  for  the  expenses  of  a  sale  where  default 
has  been  made  in  satisfying  a  valid  lien.  The  rights  of  the 
depositary  for  hire  to  such  lien  are]  regulated  by  the  title 
on  liens.  (In  effect  60  days  from  and  after  April  10,  1909. 
Stats.   1909,   Chap.   664.)  Civ.    Code,    1909. 


Title  III,  Chap.  II.]  DEPOSIT  FOR  KEEPING.  §§  lSGl-1863 

pass  unless  placed  Iborcin,  he  is  not  liable,  except  so  far  as  his  own  acts  con- 
tribute thereto,  for  any  loss  of  or  injury  to  such  articles,  if  not  deposited  with 
him,  and  not  required  by  Ihe  guest  fur  present  use. 

Exemp  Jon  from  liability. — "Tliis  suction  it  was  always  enforced,  as  seen  from  tlie  decis- 

affonls  an  opportunity  for  innkeepers,  by  tlieir  ions  (|Uote<l  there.     Tiiis  means  of  defense  la 

own  acts,  to  relieve  themselves  to  a  certain  ex-  affonleii  hy  and  rests  alone  in  Ihe  statute.    The 

tent  from  what  might  he  termed  the  extreme  cases  of  PnroiK  v.  Culcinnn,  I  Dosw.  .322;  21  N. 

stringency  of  the  rule  in  the  text  of  the  pre-  Y.  Ill;  ami  Oile  v.  Li/>bi/.  ."G  IJarl).  70,  are  oa 

ceding  section,  and  from  the  rigor  with  which  this  point:  "   Code  commissiouera'  note. 

1861.  Liena  by  hotel,  inn,  board i.ng-Jiouse,  and  lodf/ing-house  keepers. 

Sec.  18G1.  Hotel,  inn,  boarding-house,  and  lodging-house  keepers  shall  have 
a  lien  upon  the  baggage  and  other  propert}'  of  value  of  their  guests,  or  boarders, 
or  lodgers,  brought  into  such  hotel,  inn,  or  boarding  or  lodging  house,  by  such 
guests,  or  boarders,  or  lodgers,  for  the  proper  charges  due  from  such  guests, 
or  boarders,  or  lodgers,  for  their  accommodation,  board,  and  lodging,  and 
room  rent,  and  such  extras  as  are  fui'nished  at  their  request,  with  the  right  to 
the  possession  of  such  baggage  or  other  property-  of  value,  until  all  such  chargen 
are  paid.  [New  section,  approved  April  1,  187G;  Amendments  1875-G,  78j  looli 
effect  from  passage.  ] 

1862.  Sale  of  unclaimed  baggage  for  storage,  etc. 

Sec.  18G2.  "Whenever  any  trunk,  carpet-bag,  valise,  box,  bundle,  or  other 
baggage  has  heretofore  come  or  shall  hereafter  come  into  the  possession  of  the 
keeper  of  any  hotel,  inn,  boarding  or  lodging  house,  as  such,  and  has  remained 
or  shall  remain  unclaimed  for  the  period  of  six  months,  such  keeper  may  pro- 
ceed to  sell  the  same  at  public  auction,  and  out  of  the  proceeds  of  such  sale 
may  retain  the  charges  for  storage,  if  any,  and  the  expenses  of  advertising  and 
sale  thereof;  but  no  such  sale  shall  be  made  until  the  expiration  of  four  weeks 
from  the  first  publication  of  notice  of  such  sale  in  a  newspaper  published  in  or 
nearest  the  city,  town,  village,  or  place  in  which  said  hotel,  inn,  boarding  or 
lodging  house  is  situated.  Said  notice  shall  be  published  once  a  week  for  four 
successive  weeks,  in  some  newspaper,  daily  or  weekly,  of  general  circulation, 
and  shall  contain  a  description  of  each  trunk,  carpet-bag,  valise,  box,  bundle, 
or  other  baggage,  as  near  as  may  be,  the  name  of  the  owner,  if  known,  the 
name  of  such  keeper,  and  the  time  and  place  of  such  sale;  and  the  expenses 
incurred  for  advertising  shall  be  a  lien  upon  such  trunk,  carpet-bag,  valise,  box, 
bundle,  or  other  baggage,  in  a  ratable  proportion,  according  to  the  value  of 
such  piece  of  property,  or  thing,  or  article  sold;  and  in  case  any  balance  aris- 
ing from  such  sale  shall  not  be  claimed  by  the  rightful  owner  within  one  week 
from  the  day  of  said  sale,  the  same  shall  be  paid  into  the  treasury  of  the  county 
in  which  such  sale  took  place;  and  if  the  same  be  not  claimed  b}'  the  owner 
thereof  or  his  legal  representatives  within  one  year  thereafter,  the  same  shall  be 
paid  into  the  general  fund  of  said  county.  [  New  section,  approved  April  1,  1876; 
Amendments  1875-G,  78;  took  effect  from  j^assage.] 

1863.  Posting  of  statement  of  charges,  etc. 

Sec  18G3.  Every  keeper  of  a  hotel,  inn,  boarding  or  lodging  house,  shall 
post  in  a  conspicuous  place  in  the  office  or  public  room,  and  in  every  bedroom 
of  said  hotel,  -boarding-house,  inn,  or  lodging-house,  a  printed  copy  of  this  sec- 
tion, and  a  statement  of  charge  or  rate  of  charges  by  the  day,  and  for  meals  or 
items  furnished,  and  for  lodging.  No  charge  or  sum  shall  be  collected  or 
received  b}'  any  such  person  for  anj'  service  not  actually  rendered,  or  for  any 
item  not  actually  delivered,  or  for  any  greater  or  other  sum  than  he  is  entitled 

331 


§3  18G4-1SC0  OBLIGATION'S.  [Div.  Ill,  Pakt  IV, 

to  by  tlie  pfencral  rules  and  rc.'^ulations  of  said  hotel,  iun,  boarding  or  lodging 
house.  For  any  violation  of  this  section,  or  any  provision  herein  contained, 
the  offender  shall  forfeit  to  the  injured  i^arty  three  times  the  amount  of  the 
sum  charged  in  excess  of  what  he  is  entitled  to.  ( New  section,  approved  April  1, 
187G;  Ainendmenls  1875-G,  78;  took  effect  from  passage.] 

ARTICLE  V 

FINDINO. 

1864.  Obligation  of  finder. 

Sec.  1804.  One  who  finds  a  thing  lost  is  not  bound  to  take  charge  of  it,  but 
if  he  docs  so,  he  is  thenceforward  a  depositary  for  the  owner,  with  the  rights 
and  obligations  of  a  depositary  for  hire. 

Depositary  for  hire:  See  ante,  sec.  1851  et  Property  of  finder  in  lost  cliattel;  See 

seq.  note   to  Brandon  v.  J/untsvifle   Ba)d-,  18  Am. 

"This  section,  and  some  of  the  ensuing  ones,  Doc.  ilj.     Finder's  title  good  as  against  every 

differ  niaterially  ffom  the  common  law,  under  one   but  the  owner  and   those  claiming  under 

v/liich  the  linJer  is   a  gratuitous  depositary,  him:  Dnrfee  v.  Jones,  11   11.  I.  583;  Ilaimtker 

Mr.  Justice  Story  consiiiere<l  the  law  in  this  v.  Blanchnrd,  90  Pa.  St.  377;  Bowen  v.  iHulli- 

respect  to  be  unsatisfactory,  and  it  lias  licen  van.  62  Ind.  281. 

altered,  giving  tiie  tinder  a  reward  and  holding  Finders  riglit  to  a  reward;  See  note  to 

him  to  a  corresponding  accountability.     Tliis  Dfixloinloi  v.  WUt;on,  25  Am.  Dec.  187. 

is  more  just  to  both  parties.     '  One  wlio  liuds  Advertisement  offering  reward. — For  a 

a  thing  lo>t  is  not  bound  to  take  charge  of  it: '  col  ection  of  decisions  upon  the  rights  of  the 

See  Isaar  v.  Clarke,  2  Bulst.  306;   Edwards  on  finder  under  an  advertisement  ofTcring  a  re- 

Bailm.  55,  tit.  Finder;  Story  on  Bailm.,  sec.  8G,  ward  for  the  recovery  of  lost  articles,  see  Ab- 

87,   c.  2.     The  doctiine  laid  down  in   1   Bac.  bott's  note  to  1  Addison  on  Cent.  24;  see  next 

Abr.,  tit.  Bailment,  D,  is  very  unsatisfactory:"  section. 
From  coaimissiouers'  note. 

1865.  Finder  to  notify  owner. 

Sec  18G5.  If  the  finder  of  a  thing  knows  or  suspects  who  is  the  owner,  he 
must,  with  reasonable  diligence,  give  him  notice  of  the  finding;  and  if  he  fails 
to  do  so,  he  is  liable  in  damages  to  the  owner,  and  has  no  claim  to  any  reward 
offered  by  him  for  the  recovery  of  the  thing,  or  to  any  compensation  for  his 
trouble  or  expenses. 

Duty  of  findar  of  lost  articles:  See  Pol.  \.  State,  35  Ohio  St.  36;  State  v.  Dean,  49  Iowa, 

Code.  sec.  .SI.*);;  tt  seq. ;  Pen.  Code,  sec.  48.").  73;  Bailey  v.  State,  58  Ala.  414;  Pen.   Code, 

When  coavertius  found  chattel  is  lar-  sec.  485. 
ceny:  See  Grhj'j.'i  v.  i,taie,  58  Ala.  425;  Brooks 

1868.  Chnmant  t.')  prove  ownership. 

Sec.  18GG.  The  finder  of  a  thing  may,  in  good  faith,  before  giving  it  up, 
require  reasonable  proof  of  ownership  from  any  person  claiming  it. 

1887.    Reward,  etc. ,  to  finder. 

Sec.  18(57.  The  finder  of  a  thing  is  entitlcsd  to  compensation  for  all  expenses 
necessarily  incurred  by  him  in  its  preservation,  and  for  any  other  service  neces- 
sarily performed  by  him  about  it,  and  to  a  reasonable  reward  for  keeping  it. 

1368.    Finder  may  put  thing  found  on  dorage. 

Sec.  18G8.  The  finder  of  a  thing  may  exonerate  himself  from  liability  at  any 
time  by  placing  it  on  storage  with  any  responsible  person  of  good  character,  at 
a  reasonable  expense. 

1869.  When  finder  may  sell  the  thing  found. 

Sec  18G9.  The  finder  of  a  thing  may  sell  it,  if  it  is  a  thing  which  is  com- 
monly the  subject  of  sale,  when  the  owner  cannot,  with  reasonable  diligence, 
be  found,  or,  being  found,  refuses  upon  demand  to  pay  the  lawful  charges  of 
the  finder,  in  the  following  cases: 

332 


Title  IV,  Chap.  I.]  LO.IX  FOR  USE.  §§  1870-1886 

1.  When  the  tiling  is  in  danger  of  perishing,  or  of  losing  the  greater  part  of 
its  value;  or, 

2.  "When  the  lawful  charges  of  the  finder  amount  to  two  thirds  of  its  value. 

"This  provision  is  new,  and  somewhat  tx-  as  set  forth  in  article  1,  chapter  G,  title  7,  part 
tends  the  powers  of  the  finder  of  lost  goods,     3,  i'oliticul  Code:"  Code  commissioners'  note. 

1870.  noio  sale  is  to  be  made. 

Sec.  1870.     A  sale  under  the  provisions  of  the  last  section  must  be  made  in 
the  same  manner  as  the  sale  of  a  thing  pledged. 
Sale  of  pledge:  See  sees.  3000,  post,  et  seq, 

1871.  Surrender  of  thing  to  the  finder. 

Sec.  1871.     The  owner  of  a  thing  found  may  exonerate  himself  from  the 

claims  of  the  finder  by  surrendering  it  to  him  in  satisfaction  thereof. 

"This  provision  cannot  be  supported  l>y  the    made    responsible     for    excessive    expenses:" 
citation  of  any  jiositive  authority,  hut  seeins     Statement  by  code  coramissiouera. 
proper,  ia  order  to  prevent  owners  from  being 

1872.  Thing  abandoned. 

Sec.  1872.  The  provisions  of  this  article  have  no  application  to  things  which 
have  been  intentionally  abandoned  by  their  owners. 

CHAPTER  III. 
DEPOSIT  FOR  EXCHANGE. 

1878.   Rf'lat ions  of  the  parties. 

Sec,  1878.  A  deposit  for  exchange  transfers  to  the  depositary  the  title  to  the 
thing  deposited,  and  creates  between  him  and  the  depositor  the  relation  of 
debtor  and  creditor  merely. 

Deposit  for  exchanga  defined:  Sec.  1S18,  ante. 

Loan  for  exoliauge:  iiee  post,  sec.  1902. 


TITLE  jy. 

LOAN. 

ChAPTEU    I.     LOAX  FOR  UsE 1884 

II.     Loan  for  Exchange 1902 

III.     Loan  op  Money 1912 

CHAPTER  I 

LOAN   FOR   USE. 

1884.  Loan,  what. 

Sec.  1884.  A  loan  for  use  ia  a  contract  by  which  one  gives  to  another  the 
temporary  possession  and  use  of  personal  property,  and  the  latter  agrees  to  re- 
turn the  sumo  thing  to  him  at  a  future  time,  without  reward  for  its  use. 

1885.  Tith^  to  property  lent. 

Sec  1885.  A  loan  for  use  does  not  transfer  the  title  to  the  thing;  and  all  its 
increase  during  the  period  of  the  loan  belongs  to  the  lender. 

1836.    Care  required  of  borrowfr. 

Sec.  188G.  A  borrower  for  use  must  use  great  care  for  the  preservation  in 
safety  and  in  good  condition  of  the  thing  lent. 

333 


§§  1887-1894  OBLIGATIONS.  [Div.  Ill,  Taut  IV, 

Care  reqiiirod  of  borrower. — He  is  hound  7S  Id.  40.     "Whatever  care  the  law  requires 

to  use  great  cure,  and  is  liable  for  loss  occasioned  to  be  given  to  the  priniipal   thing  loaned  is  to 

l)y   sliglit   ne;^ligeni:e:    Scranto}i   v.    iktxter,  4  bu  extende<l   to  all  wliicli   belongs  to  and  goes 

Sandf.  5;  \Voo<l\r.  McCltire,  7  Inil.  153;  liemieU  with  it:"  Comnaissiouera'  note. 
V.  O'Brien,   37  111.  2.")0;  Uagebuah  v.  llajland, 

1887.  Same. 

Seo.  1887.     One  who  borrows  a  living  animal  for  use  must  treat  it  with  great 
kindness,  and  provide  everything  necessary  and  suitable  for  it. 
DepOjitary  of  living  animals  for  keeplns;  See  ante,  sec.  1834. 

1888.  Degree  of  skill. 

Sec.  1888.  A  borrower  for  use  is  bound  to  have  and  to  exercise  such  skill  in 
the  care  of  the  thing  lent  as  he  causes  the  lender  to  believe  him  to  possess. 

"Sir   William    Jones,  Bailm.,  p.    65,    is   of  Usage,  note  49.    But  this  doctrine,  says  Story, 

opinion  tliat  tiio  borrower's  incapacity  to  exert  Bailm.,  sec.  2.S7,  must  be  received  with  qnalifi- 

more  than  ordinary  diligence  will   not,   even  cation  and  reserve,  and  conlined  to  cases  of  en- 

npon  the  ground  of  an  impossibility,  furnish  gasjements,  etc.     The  lender  may  insist  on  such 

a  sufBcient  excuse  for   slight  neglect;  for  he  diligence  only  as  belongs  to  the  age,  character, 

contend -i  that  the  liorrower  ouglit  to  have  con-  and  known  habits  of  the  borrower:  "  Commis- 

eidered  his  own  capacity  before  he  deluded  his  sioncrs' note, 

friend   by  engaging  in  the  act  of  borrowing.  Compare  with  section  1970. 
Such,  also,  is  the  doctrine  of  Pothier  PrOt  h 

1889.  Borrower,  when  to  repair  injuries. 

Sec.  1889.  A  borrower  for  use  must  repair  all  deteriorations  or  injuries  to 
the  thing  lent,  which  are  occasioned  by  his  negligence,  however  slight. 

1890.  Use  of  thing  lent. 

Sec.  1890.     The  borrower  of  a  thing  for  use  may  use  it  for  such  purposes  only 
as  the  lender  might  reasonably  anticipate  at  the  time  of  lending. 
See  next  section. 

1891.  Relending forbidden. 

Sec.  1891.  The  borrower  of  a  thing  for  use  must  not  part  with  it  to  a  third 
person,  without  the  consent  of  the  lender. 

Misappropriating  the  article  borrowed  is  conversion:  McJilahon  v.  Sloan,  12  Pa.  St, 
229;  Crumj?  v.  Mitchell,  34  Miss.  449. 

1892.  Borrower,  when  to  bear  expenses. 

Sec.  1892.  The  borrower  of  a  thing  for  use  must  bear  all  its  expenses  during 
the  loan,  except  such  as  are  necessarily  incurred  by  him  to  preserve  it  from 
unexpected  and  unusual  injury.  For  such  expenses  he  is  entitled  to  compen- 
sation from  the  lender,  who  may,  however,  exonerate  himself  by  surrendering 
the  thing  to  the  borrower. 

1893.  Lender  liable  for  defects. 

Sec.  1893.  The  lender  of  a  thing  for  use  must  indemnify  the  borrower  for 
damage  caused  by  defects  or  vices  in  it,  which  he  knew  at  the  time  of  lending, 
and  concealed  from  the  borrower. 

See  also  ante,  sec.  IS.'IS. 

Loan  for  exchange:  ^eepod,  sees.  1902,  1906. 

1894.  Lender  may  require  return  of  thing  lent. 

Sec.  1894.  The  lender  of  a  thing  for  use  may  at  any  time  require  its  return, 
even  though  he  lent  it  for  a  specified  time  or  purpose.  But  if,  on  the  faith  of 
8uch  an  agreement,  the  borrower  has  made  such  arrangements  that  a  return 
of  the  thing  before  the  period  agreed  upon  would  cause  him  loss,  exceeding  the 
benefit  derived  by  him  from  the  loan,  the  lender  must  indemnify  him  for  such 
loss,  if  he  compels  such  return,  the  borrower  not  having  in  any  manner  violated 
his  duty. 

334 


Title  IV,  Chap.  III.]  LOAN  OF  MONEY.  §§  lS9o-1906 

1895.  When  returnable  without  demand. 

Sec.  1985.  If  a  thing  is  lent  for  use  for  a  specified  time  or  purpose,  it  must 
be  returned  to  the  lender  without  demand  as  soon  as  the  time  has  expired  or 
the  purpose  has  been  accomplished.  In  other  cases,  it  need  not  be  returned 
until  demanded. 

1896.  Place  of  return. 

Sec.  189G.  The  borrower  of  a  thing  for  use  must  return  it  to  the  lender  at 
the  place  contemplated  by  the  parties  at  the  time  of  lending;  or  if  no  par- 
ticular place  was  so  contemplated  by  them,  then  at  the  place  where  it  was  at 
that  time. 

CHAPTER  II. 
LOAN  FOR  EXCHANGE. 

1902.  Loan  for  exchange,  what. 

Sec.  1902.     A  loan  for  exchange  is  a  contract  by  which  one  delivers  personal 

property  to  another,  and  the  latter  agrees  to  return  to  the  lender  a  similar 

thing  at  a  future  time,  without  reward  for  its  use. 

Loan  of  money  as  a  loan  for  exchange:  See  the  civil  and  the  common  law  with  respect  to 
sec.  1'J12.  the  transaction  made  the  subject  of  this  sec- 

For  a  discussion  of  the  difiference  between     tion,  see  Soliouler  on  Bailment,  ,'>-7. 

1903.  Same. 

Sec.  1903.  A  loan,  which  the  borrower  is  allowed  by  the  lender  to  treat  as  a 
loan  for  use  or  for  exchange,  at  his  option,  is  subject  to  all  the  provisions  of 
this  chapter. 

"This  is  interposed  as  a  provision  necessary  to  prevent  frauds  on  tliird  persons: "   Commis* 

sioners'  note. 

1904.  Title  to  property  lent. 

Sec.  1904.     By  a  loan  for  exchange,  the  title  to  the  thing  lent  is  transferred 

to  the  borrower,  and  he  must  bear  all  its  expenses,  and  is  entitled  to  all  its 

increase. 

This  would  follow  from  the  title  passing  to  76;  Hurd  v.   West,  7  Cow.  752;  Carpenter  v. 

the  borrower,  as  stated  in  section  l'J02.     And  Griffin,  9  Paige,   cases   cited  by  the  commis- 

80  Nor/on  v.    Woodrvff,  2  N.  Y.   153;  Foiitcr  sioners. 
V.  Pettlbone,  7  Id.  433;  Mailory  v.  W'dil'^,  4  Id. 

1905.  Contract  cannot  he  modifi''d  by  lender. 

Sec.  1905.  A  lender  for  exchange  cannot  require  the  borrower  to  fulfill  his 
obligations  at  a  time  or  in  a  manner  different  from  that  which  was  originally 
agreed  upon. 

"This  follows  from  the  nature  of  the  con-  to  be  controlled  and  governed  by  their  agree- 
tract.  It  is,  in  fact,  simply  an  executory  ex-  ment  made  at  the  time  possession  of  the  loan 
change,  and  manifestly  just  to  require  parties    changes: "  Commissioners'  note. 

1906.  Certain  sections  applicable. 

Sec.  190G.  Sections  eighteen  hundred  and  ninety-three,  eighteen  hundred 
and  ninety-five,  and  eighteen  hundred  and  ninety-six  apply  to  a  loan  for 
exchange. 

CHAPTER  III. 
LOAN  OF  MONEY. 

"Originally,  no  interest  was  allowed  upon  a  ing,  is  universally  known  as  a  loan.     This  use 

loan  of  money;  but  with  the  progress  of  l)usi-  of  the  word  having  obtained  so  long,  it  would 

nesg  it  became  necessary;  and  the  transaction  be  idle  to  attempt  to  change  it:  "  Commission* 

X'a'cui  entered  into,  although  in  strictness  a  hir-  ers'  observations. 

335 


§§  1012-1917  OBLIGATIONS.  [Div.  Ill,  Part  rV, 

1912.  Loan  of  monpy. 

Sec.  1912.  A  loan  of  money  is  a  contract  by  which  one  delivers  a  sum  of 
money  to  another,  and  the  latter  agrees  to  return  at  a  future  time  a  sum  equiva- 
lent to  that  which  he  borrowed.  A  loan  for  mere  use  is  governed  by  the  chap- 
ter on  loan  for  use. 

Interest:  See  sees.  1914  et  seq. 

1913.  Loan  lo  be  repaid  in  current  money. 

Sec.  1913.  A  borrower  of  money,  unless  there  is  an  express  contract  to  the 
contrary,  must  pay  the  amount  due  in  such  money  as  is  current  at  the  time 
when  the  loan  becomes  due,  whether  such  money  is  worth  more  or  less  than 
the  actual  money  lent. 

See  Code  I^.,  art.  2884.  The  loan  of  money  section  recognizes  the  existence  of  the  act  to 
differs  from  another  ordinary  inutum  in  this:  ns  known  as  the  speciKc-contract  act,  ])rovidecl 
the  identical  money  is  not  consumed,  but  it  for  in  the  Code  of  Civil  Procedure  of  California, 
passes  beyond  the  control  of  tlie  borrower,  and  section  GOT:  Sec.  200;  see  also  sec.  33d7,  i'06t: 
is  as  incap;ible  of  being  collected  and  returned,  Note  bj'  commissioners, 
almost,  as  if  it  were  actually  consumed.     This 

1914.  Loan  presumed  to  be  on  interest. 

Sec.  1914.     Whenever  a  loan  of  money  is  made,  it  is  presumed  to  be  made 

upon  interest,  unless  it  is  otherwise  expressl}'  stipulated  at  the  time  in  writing. 

{Amendment,  approved  March  30,  1874;    Amendments  1873-4,  244;   took  effect 

July  I,  1874.] 

Interest. — For  a  sketch  of  the  early  repug-  French,  G  Am.  Dec.  188.     No  usury  law  was  in 

nance  to  allowing  interest,  and  a  statement  of  force  in  California  in  1850:  Fowler  v.  Umilli,  2 

many  principles  connected  with  the  subject  in  Cal.  39. 
its  modern  aspect,  see  the  note  to  Sdlecb  v. 

1915.  Interest  defined. 

Sec.  1915.  Interest  is  the  compensation  allowed  by  law  or  fixed  by  tho  par- 
ties for  the  use,  or  forbearance,  or  detention  of  money.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  245;  look  effect  July  1,  1874.J 

1916.  Annual  rate. 

Sec.  191G.  When  a  rate  of  interest  is  prescribed  by  a  law  or  contract,  with- 
out specifying  the  jDeriod  of  time  by  which  such  rate  is  to  be  calculated,  it  is  to 
be  deemed  an  annual  rate. 

"This  prevents  any  misunderstanding  in  this  state  the  custom  most  prevalent  has  been 
cases  of  omission,  and  conforms  to  the  general  a  monthly  rate  of  interest:  "  Comuiissioners' 
custom  of  borrowing  and  loaning,   though  in     note. 

1917.  Legal  interest — ComjnUation. 

Sec.  1917.     Unless  there  is  an  express  contract  in  writing,  fixing  a  different 

rate,  interest  is  payable  on  all  moneys  at  the  rate  of  seven  per  cent  per  annum 

after  they  become  due,  on  any  instrument  of  writing,  except  a  judgment,  and 

on  moneys  lent,  or  due  on  any  settlement  of  account,  from  the  daj'  on  which 

the  balance  is  ascertained,  and  on  moneys  received  to  the  use  of  another  and 

detained  from  him.     In  the  computation  of  interest  for  a  period  less  than  a 

year,  three  hundred  and  sixty  days  are  deemed  to  constitute  a  year.     \Amend- 

inent,  approved  February  15,  1878;  Amendments  1877-8,  87;  took  effect  sixtieth 

day  after  passage.  ] 

Rate  of  iutsrest — The  legislature  has  the  1803,  Stats.  1SG7-8,  p.  553,  was  prospective 
power  to  impose  on  debtors  the  obligation  of  in  its  operation,  and  reduced  the  rate  of  inter- 
paying  interest  on  debts  already  due:  Bea/i  v.  est  on  future  contracts:  ]lliile  v.  Liiont,  42 
Amwlor  To.,  35  Cal.  G24;  Lhinni'  w  M  isllct,  Cal.  279;  riamloLphw  Bayne,AAh\.'M\\S.  That 
50  Id.  244;  Cnmm  ii;ii  v.  Howard,  G3  Id.  503;  a  rei)eal  of  usury  laws  may  opjrat'i  rctrospect- 
and  it  may  prohibit  the  exacting  of  interest  on  ively,  see  Ewi-U  v.  Danoa,  2  Sup.  Ct.  Rep.  413. 
future  contracts  unless  provided  for  l)y  writing:  A  change  in  the  rate  of  interest  does  not  affect 
Id.     So  it  may  reduce  the  rate.     Tlie  act  of  the  contract:  Aguirre  v.  Packard,  14  Cal.  171. 

336 


Title  IV,  Chap.  HI.] 


LOAN  OF  MOXEY. 


§§  1918-1920 


Where  the  rate  of  interest  is  not  agreed  upon, 
the  court  may  allow  legal  intei-est  from  the 
time  tlie  debt  became  due:  Jones  v.  Gardner, 
67  Cal.  641.  And  so  in  actions  on  official  bonds 
for  defalcations:  Peoplex.  Breiifo[]le,  17  Id.  504; 
SmitJi  V.  Johnson,  23  Id.  03.  Jiut  not  unless  it 
was  understood  that  some  interest  was  to  be 
paid:  Ferret  v.  Jones,  39  Id.  0C>5;  but  see  sec. 
1914,  Ktipra.  Where  interest  commences  after 
demand,  demand  must  be  made  before  it  can 
be  allowed:  JJnller  v.  Austin,  G4  Id.  3.  A 
statement  of  a  mutual  account  in  v.iiiuli  interest 
is  charged  on  both  sides  is  a  sudicient  writing 
to  bind  ih.3  party  rendering  tiie  statement  as 
to  the  interest  he  has  charged  himself  wiLh: 
Fratalovgo  v.  Larco,  47  Id.  378.  Interest  in 
excess  of  the  legal  rate  will  not  l)e  allowed,  ex- 
cept upon  an  express  agreement  in  writing: 
Crosbi/  V.  McDermott,  7  Id.  140;  Hill  v.  E:dred, 
49  Id.  398;  Go'dsmlth  v.  Sawyer,  43  Id.  '239. 
The  law  does  not  fav'or  the  giving  of  interest  in 
excess  of  the  statutory  rate:  iJrosb)/  v.  il/c- 
D"rmott,  7  Id.  140.  And  subsequent  advances 
do  not  impliedly  carry  the  same  rate  of  illegal 
interest  stipulated  to  run  upon  the  original 
advancement:  Marzion  v.  Pioclie,  8  Iil.  522. 
The  written  agreement  to  pay  interest  in  excess 
of  the  statutory  rate  is  to  operate  prospectively, 
and  so  c mstrued  will  stand:  Adams  v.  llas- 
Un(]s,  0  Id.  120;  but  au  agreement  to  pay  such 


excessive  rate  on  an  indebtedness  incurred 
prior  to  the  contract  is  void  for  want  of  coa^ 
sideration  as  to  the  excess  of  interest  up  to  tho 
date  of  the  agreement:  Id.  But  the  require- 
ment that  a  contract  for  more  than  the  legal 
rate  of  interest  must  be  in  writing  does  not 
prevent  equity  from  correcting  a  contract  as  ta 
the  rate  of  interest:  llathaivaj  v.  Brud)/,  23 
Id.  121 ;  and  for  the  circumstances  under  which 
a  parol  contract  for  excessive  rate  will  be  en- 
forced, see  Hidden  v.  Jordan,  28  Id.  301.  The 
rate  (ixcd  in  a  promissory  note  is  not  a  contract 
in  writing  between  tlie  niahcr  ami  suielies: 
Smith  V.  Johnsin,  23  Id.  03.  The  interest  is  to 
be  paid  although  the  creditor  had  money  of  the 
debtor  in  his  hands,  if  the  same  was  not  applied 
to  the  interest:  LaufjhUn  v.  IlVi^/i/,  03  Id.  113. 

lutSrast  after  maturity. — Moneys  after 
they  become  due  bear  interest  at  the  rate 
agreed  upon  in  the  written  contract,  although 
nothing  be  expressly  said  about  interest  after 
maturity:  Koldcr  v.  Smith,  2  Cal.  597.  For  a 
carel'ul  consideration  of  this  question,  see  a 
recent  decision  by  the  supreme  court  of  Indiana; 
Shaw  V.  lih/h;/,  2  Journal  of  Banking.  113, 
where  the  above  view  is  adopted,  and  prior 
cases  in  tliat  state  are  overruled. 

Interest  oa.iudsiasnts:  See  infra,  sec,  1020^. 

Compounding  interest :  See  inj'ra^  sjuc,. 
1919. 


1918.    Same. 

Sec,  1918.  Parties  may  agi'ee  in  wntin<]f  for  the  payment  of  any  rate  of  intejs 
est,  and  it  sball  be  allowed,  according  to  the  terms  of  the  agreement,  until  the 
entry  of  judgment. 

Stats.  1808,  553,  sec.  2;  Stats.  1870,  099,  as  may  be  agreerl  upon:  Hinds  v.  Mnrmoleio^. 
eer.  l._ 

National  banks  may,  by  reason  of  this  sec- 
tion, charge  and  receive  such  rates  of  interest 


00   Cal.    229;     Farmers'   Nat. 
Stover,  Id.  387. 


Gold  Bank   v. 


1919.    Inleresl  becomes  part  of  principal,  when. 

Sec.  1919.  The  parties  may,  in  any  contract  in  -writing  whereby  any  debt  is 
secured  to  be  paid,  agree  that  if  the  interest  on  such  debt  is  not  jDunctually 
paid  it  shall  become  a  part  of  the  principal,  and  thereafter  bear  the  same  rata 
of  interest  as  the  principal  debt. 


CompoundJig  interest:  See  the  note  to 
Se/leck  V.  French,  0  Am.  Dec.  1S5.  Tho  inter- 
est was  com[>ounded  for  non-payment  of  the 
interest  payal)le  monthly  in  Pai/e  v.  Willinms, 
54  Cal.  202.  For  the  rule  as  to  the  computa- 
tion of  intei'est  where  partial  payments  have 
been  made,  see  Fstate  of  Dew,  35  Id.  092. 

Where  parties  are  in  the  liabit  of  making 
periodical  statements  of  account  without  charg- 


ing interest  on  the  ascertained  balances,  such 
settlements  are  dcemtd  conclusive,  r,nd  the 
courts  will  not  go  behind  them  to  allow  inter- 
est, except  in  the  case  of  mistake  or  fraud: 
Chandler  v.  Peop'^s  Snrinrjs  Bai./:,  00  Cal.  401. 
Siirae  rate  as  principal  d3bt. — In  eom- 
poiuuliiig  interest,  greater  rate  than  that  o;i  tlia 
principal  debt  cannot  be  allowed:  Slvcikjs  and 
Loan  Socitti/  v.  llorlon,  03  Cal.  105. 


1920.    Interest  on  judgment. 

Seo.  1920.  Interest  is  payable  on  judgments  recovered  in  the  courts  of  this? 
state  at  the  rate  of  seven  per  cent  per  annum,  and  no  greater  rate,  but  such 
interest  must  not  be  compounded  in  any  manner  or  form.  [Amejidment,  approved 
March  30,  1874;  Amendments  1873-4,  245;  tuulc  effect  Juhj  1,  1874.] 

Interest  on  judgments. — "This  conforms     which  did  not  disclose,  and  were  not  proved  to 


to  the  amendment  of  the  act  of  1808,  533,  as 
made  iu  1870,  099,  sec.  1:"  Commissioners' 
note. 

At  common  law,  judgments  did  not  carry  in- 
terest: Thomson  v.  Monrow,  2  Cal.  99;  and  it 
has  been  so  \vAA  with  respect  to  judginents  of 
this  state,  and  to  judgments  of  other  states, 

Ctv.  Code— 22  337 


carry,  interest:  Cacnider  v.  Gnitd,  4  Id.  251. 
But  in  Emeric  v.  Tanrut,  0  Id.  155;  Corcoran  v. 
Doll,  32  Id.  82;  Lane  v.  Gluchavf,  33  I<1.  288; 
anil  in  Mount  v.  Chajnnan,  9  Id.  294,  it  was  de- 
cided that  jmlgments  on  contracts  bearing  in- 
terest eii-ried  t!ic  ^:ame  interest  as  the  contracts. 
Since  the  act  of  1870,  Stats.  1870,  099,  interest 


§§  1925-1928 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


is  allowable  on  all  money  jnrlgments:  Bdl  v. 
Knowles,  45  Id.  193;  JJoitfjherd/  v.  Miller.  3S 
1(1.  548;  \Vh,tcher  v.  Webb,  44  Id.  127;  h'an- 
ihlpit  y.  Bnyiie,  Id.  3(J6.  It  had  been  held 
that  a  jud^'uient  for  use  and  occupation  did  not 
draw  interest:  Oshornv. //eMdrirt^oit,  S  Id.  32. 
But  in  Bar/ce  v.  Car  rut  hers,  31  Id.  4G7,  a  judg- 
ment for  damages  in  a  forcible  entry  and  de- 
tainer case  carried  interest.  So  also  street  as- 
sessment judgment:  Ilimmelman  v.  Oliver,  34 
Id.  '24(j;  degree  in  foreclosure  on  sum  due: 
Whitcher  v.   Webb,  44  Id.    127;  and  all  final 


money  judgments:  Clarlc  v.  Dunam,  46  Id. 
204. 

The  judgment  bears  interest  only  from  the 
time  it  is  pronounced:  Bcbtud  v.  L.  ct  L.  Ins, 
Co.,  30Cal.  78. 

Compound  interest  never  to  be  allowed  on 
judgments:  See  application  of  principle  to  an 
action  against  an  administrator  in  a  judgment 
recovered  against  the  decedent  during  his  life- 
time, and  rejected  as  a  claim  by  the  adminis- 
trator: Qaivcy  V.  Hall,  la  Cal.  07. 

Interest  as  damases;    Bee  jjost,  sec.  3287. 


TITLE  V. 

HIRING. 

Chapter  I.     Hiring  in  General 1925 

II.     Hiring  of  Real  Property 1941 

III.     Hiring  of  Personal  Property 1955 


CHAPTER  I 

HIRING  IN  GENERAL. 
."1925.    Hiring,  lohat. 

Sec.  1925,  Hiring  is  a  contract  by  wliich  one  gives  to  another  the  temporary 
'  possession  and  use  of  property,  other  than  money,  for  reward,  and  the  latter 
.  ajrrees  to  return  the  same  to  the  former  at  a  future  time. 


Hirine;  personalty:  See  post,  sees.  1955  et 
-  seq. 

HirinSi  or  locatlo  coivdactio,  was  divided  at 

■  the  civil  law  into:  1.  The  hiring  of  a  thing  for 

■use  [locatio  rei);   2.  The   lii.ing  of  work  and 

;  labor  {locatio  o peris /aciendi);  3.  The  hiring  of 


care  and  service  to  be  performed  or  bestowed 
on  the  thing  delivered  (locatio  cuHtodice);  and 
4.  The  hiring  of  the  carriage  of  goods  from  one 
place  to  another  (locatio  operis  niercium  vehen- 
darum):  Storv  on  Bailm.,  sec.  8. 


11926.    Prodiids  of  thing. 

Sec.  1923.     The  products  of  a  thing  hired,  during  the  hiring,  belong  to  the 
hirer. 

.1927.    Quiet  poi^scssion. 

Sec.  1927.     An  agreement  to  let  upon  hire  binds  the  letter  to  secure  to  the 

:  hirer  the  quiet  possession  of  the  thing  hired  during  the  term  of  the  hiring, 

.against  all  persons  lawfully  claiming  the  same. 

Duty  of  letter  of  building  in  this  respect,         See  Schouler  on  Bailments,  p.  148;  and  Story 
See  post,  pec.  1041.  on  Bailments,  sec.  387,  as  to  the  implied  war- 

Duty  of  latter  of  personalty  likewise:  See    ranties  on  tlie  part  of  the  letter. 

post,  sec.  1955. 

1928.    Degree  of  care,  etc.,  on  part  of  hirer. 

Sec.  1928.     The  hirer  of  a  thing  must  use'ordinary  care  for  its  preservation 
in  safety  and  in  good  condition. 


Degree  of  diligence. — This  bailment  being 
one  of  mutual  benefit,  the  law  demands  of  the 
hirer  ordinary  ddigence  only  for  the  preserva- 
tion and  safety  of  the  thing  bailed:  Smith  v. 
Simms,  51  How.  305;  that  is,  such  care  and 
diligence  as  is  usual  with  men  of  ordinary  dis- 
cretion in  managing  their  own  property:  Id.; 
Millon  V.  Sili>ibury,  13  Johns.  211;  Maynard 
V.  Buclc,  100  Mass.  40;  Jackson  v.  Robinson,  IS 
B.  Mon.  1 ;  Colliiis  v.  Bennett,  4G  N.  Y.  490; 
Chamberlin  v.  Cobb,  32  Iowa,  6 1 ;  therefore,  in- 


tliQ  bailee's  not  returning  the  article  as  it  was 
received:  Watlim^v.  Roberta,  2S  Ind.  1G7;  Hy- 
landv.  Paid,  33  Barb.  241;  Fidd  v.  Brackett, 
5G  Me.  121;  McEvers  v.  Steamboat  Snn<jamon, 
22  Mo.  187;  where  the  hirer  has  used  ordinary 
care  in  regard  to  an  animal  hired,  he  is  not  to  be 
made  answerable  for  its  sickness  or  death:  Buis 
V.  Cook,  GO  Mo.  391 ;  IJarrinq'on  v.  Snyder,  3 
Barb.  380;  Francis  v.  Shorader,  67  111.  272; 
Eastman  v.  Sanborn,  3  Allen,  594;  if,  however, 
the  thing  is  used  for  a  different  purpose  or  in 


evitable  accident  or  superior  force  will  excuse    a  different  maimer  than  that  which  was  con- 

338 


i'lTLE  V,  Chap.  L]  HIRING  IN  GENERAL.  S§  1929-1934 

templatefl  by  the  parties  at  the  time  of  the  hir-  contract  for  exemption  from  liability  for  want 

ing,  tho  liirerwill  be  responsible  for  the  results  of  ordinary  care  and  skill,  see  Alexander  v. 

of  even  his  slight  negligence:  Srhenrhv.  Stronrj,  Greene,  3  Hill,  9. 

4  N.  J    L.  87;  Jloinrr  v.  Thicvifj,  3  Pick.  492;  See   a   collection   of    recent   decisions   in   3 

Per  ham  v.  Coney,  117  Mass.  102;   Lewis  v.  Mc-  Wait's   Act.  &   Di'f.,   617  et  seq.;    losses   oc- 

A/ce,  32  ( Ja.  4Go.     In  B  nrh  v.  Raritnn  etc.  R.  casioned  by  robbery  are  governed  by  like  rules: 

.^.  Co.,  37  N.  Y.  4.37,  tho  bailee,  having  used  a  See  Id.  619. 

barge  fnr  other  than  the  stipulated  purpose,  Burden  of  proving  negligence  in   these 

was  held  liable  for  loss,  indepenilently  of  any  cas^s:  See  the  discussion  iu  Story  on  Bailin., 

question    of  negligence:    See   also   infra,   sec.  sees.  410  et  scq. 

19.'jO.     That  an  ordinary  bailee  for  hire  may 

1929.    Muiit  repair  wjuries^,  etc. 

Sec.  1929.  The  hirer  of  a  thing  must  repair  all  deteriorations  or  injuries 
thereto  occasioned  by  his  ordinaiy  negligence. 

R3oairs This  requirement  results  from  the     respect  to  the  consequence  of  not  complying 

rule  of  thi!  previous  section,  and  the  same  rule     with  its  provisions,  see  sec.  1931,  infra. 
applies  to  realty:  See  jwsl,  sec.    1941.     With 

1B30.    Tiling  lei  for  a  particular  purpose. 

Sec.  1930.  When  a  thing  is  let  for  a  particular  purpose,  the  hirer  must  not 
use  it  for  any  other  purpose;  and  if  he  does,  the  letter  may  hold  him  respon- 
Bible  for  its  safety  during  such  use  in  all  events,  or  may  treat  the  contract  as 
thereby  rescinded. 

See  cases  cited  supra,  in  note  to  sec.  1928. 

1831.    When  letter  may  terminate  the  hiring. 

Sec  1031.  The  letter  of  a  thing  may  terminate  the  hiring  and  reclaim  the 
thing  before  the  end  of  the  term  agreed  upon : 

1.  When  the  hirer  uses  or  permits  a  use  of  the  thing  hired  iu  a  manner  con- 
trary to  the  agreement  of  the  parties;  or, 

2.  When  the  hirer  does  not,  within  a  reasonable  time  after  request,  make 
Buch  repairs  as  he  is  bound  to  make. 

1982.  When  hirer  may  terminate  the  hiring. 

Sec  1032.  The  hirer  of  a  thing  may  terminate  the  hiring  before  the  end 
of  the  term  agreed  upon : 

1.  When  the  letter  does  not,  within  a  reasonable  time  after  request,  fulfill 
his  obligations,  if  any,  as  to  placing  and  securing  the  hirer  in  the  quiet  posses- 
sion of  the  thing  hired,  or  putting  it  into  good  condition,  or  I'epairing;  or, 

2.  Wlien  the  greater  part  of  the  thing  hired,  or  that  part  which  was,  and 
which  the  letter  had  at  the  time  of  the  hiring  reason  to  believe  was,  the  material 
inducement  to  the  hirer  to  enter  into  the  contract,  perishes  from  any  other 
cause  than  the  ordinary  negligence  of  the  hirer. 

1983.  When  hiring  terminates. 

Sec  1033.     The  hiring  of  a  thing  terminates: 

1.  At  the  end  of  the  term  agreed  upon; 

2.  By  the  mutual  consent  of  the  parties; 

3.  By  the  hirer  acquiring  a  title  to  the  thing  hired  superior  to  that  of  the 
letter;  or, 

4.  By  the  destruction  of  the  thing  hired. 

Subd.  4,  Destruction  of  thing  hired.—  stroyed  by  fire,  see  Harrington  v.  Watson^  1 
As  to  the  rule  where  leased  premises  are  de-     West  Coast  Rep.  09  (Or.). 

1934.    When  terminated  by  death,  etc.,  of  party. 

Sec  1934.  If  the  hiring  of  a  thing  is  terminable  at  the  pleasure  of  one  of 
the  parties,  it  is  terminated  by  notice  to  the  other  of  his  death  or  incapacity  to 
contract.     In  other  cases  it  is  not  terminated  thereby. 

339 


§§  1935-1942  OBLIGATIONS.  [Drv.  IH,  Part  TV,  • 

1935.    Apportionment  of  hire. 

Sec.  1935.  When  the  hiring  of  a  thing  ia  terminated  before  the  time  origi- 
nally agreed  upon,  the  hirer  must  pay  the  due  proportion  of  the  hire  for  such 
use  as  he  has  actually  made  of  the  thing,  unless  such  use  is  merely  nominal, 
and  of  no  benefit  to  him. 

Apportionment  of  hire. — The  corle  com-  For  the  compensation  to  which  a  depositary 
missioiicrs  say:  "Modilied  from  Story  ou  for  hire  is  entitled  upon  a  termination  of  tlio 
Bailm.,  sees.  413,  41S  a."  deposit,  see  ante,  sees.  1S53-1S55. 

CHAPTER  II. 

HIRING  OF  REAL  PROPERTY. 
1D41.    Lessor~to  make  dwelling-house  fit  for  its  purpose. 

Sec.  1941.  The  lessor  of  a  building  intended  for  the  occupation  of  human 
brings  must,  in  the  absence  of  an  agreement  to  the  contrary,  put  it  into  a  con- 
dilion  fit  for  such  occupation,  and  repair  all  subsequent  dilapidations  thereof, 
which  render  it  untenantable,  except  such  as  are  mentioned  in  section  nineteen 
htmdred  and  twenty-nine.  [Amendment,  approved  March  30, 1874;  Ametidments 
1873-4,  245;  took  effect  Jul;/  1,  1874.] 

"Tills  section  changes  the  rule  upon  this  that  tlie  obligation  of  the  landlord  should  be 
subject  to  conform  ti»  tliat  which,  notwith-  limited  by  the  extent  of  tlie  privilege  con- 
standing  steady  judicial  adherence  for  hun-  ferre  1  upi)u  tJie  tenant;  that  it  is  tlie  duty  of 
dreds  of  years  to  the  adverse  doctrine,  is  gen-  the  landlord  to  repair  upon  notice,  and  if  ha 
erally  believed  by  the  unprofessional  pu!)iic  to  does  not  perform  this  duty,  he  is  to  be  com- 
bijlaw,  and  upon  which  basis  they  almost  always  pelled  to  piy,  by  deduction  from  the  rent,  to 
contract.  The  very  fact  that  there  are  re-  the  extent  of  a  month's  rental,  or,  at  the  op- 
peated  decisions  to  the  contrary,  down  to  the  tion  of  the  tenant,  the  term  be  concluded 
year  eighteen  hundred  and  sixty-one,  shows  without  redress  to  the  landlord.  If  dou1)t  re- 
that  the  public  do  not  and  cannot  understand  mained  that  this  is  the  proper  construction, 
their  justice,  or  even  realize  their  existence,  we  think  the  legislative  purpose  is  aiiparent 
So  familiar  a  point  of  law  could  not  rise  again  when  sections  1941  and  1942  of  the  Civil  Code, 
and  again  for  adjudication  were  it  not  that  the  as  amended  in  the  year  1S74,  are  compared 
community  at  large  revolt  at  every  application  with  the  same  sections  as  they  stood  ori-inally. 
of  the  rule:"  Coiumissioners'  note.  The  "Section  l'^4l  was  amended  by  simply  in- 
amenlmeut  suggested  by  the  cotle  examiners  sorting  the  words  'in  the  absence  of  au  agree- 
was  the  introduction  of  the  clause  "in  the  ab-     ment  to  the  contrary.' 

Benco,"  etc.  As  an  example  of  what  is  stated  "  Prior  to  the  amendment,  section  1492  read: 
Ly  the  commissioners,  see  Breusd'r  v.  De  Fre-  'If  within  a  reasonable  time  after  notice  to  the 
7npri/,  .S3  Cal.,  3H,  where  the  lessor  was  not  lessor  of  dilapidations  which  he  ouglit  to  re- 
held  Lable  to  maUe  re[)airs.  pair  he  neglects  to  do  so,  the  lessee  may  re- 

The  above  and  tiie  succeeding  sections  were  pair  the  same  himself  and  deduct  the  ex|>fnse3 
construed  in  I'an  Every  v.  U<j(i,  59  Cal.  533,  a  of  such  repair  from  the  rent,  or  otherwise  re- 
sumnira-y  action  against  a  tenant  for  holding  cover  it  from  the  lessor.'  By  the  amendment 
over,  in  which  a  couuter-cl.iim  for  one  thousand  of  this  section  the  legislature  have  taken  away 
dollars  was  set  up  for  d  image  occasione  1  to  the  from  the  lessee  tlie  ri^lit  to  make  all  repairs 
tenant's  furniture  and  carpets  by  water  leaking  (without  limitation  as  to  expenditure)  which 
tlirough  the  roof  and  walls  of  the  budding,  the  lessor  ouglit  to  make;  and  have  also  taken 
Referring  to  the  above  section,  t'le  court  said:  away  the  right  to  recover  any  sum  expended 
"It  id  insisted  that  t'iesectionlastcited,by<)pur-  'otlierwise' tliau  by  doductiou  to  the  amount 
ation  of  law,  inserts  in  every  lease  a  covenant  on  of  a  month's  rent,  giving  to  the  tenant,  in 
the  i>art  of  the  landlord  to  rep  lir.  B.it  lieariugin  return  for  such  restriction,  the  privilege  of 
mind  tiiat  at  the  common  law  no  sacii  covenant  vacating  the  [treiiiises  without  further  liability 
was  implied,  and  reading  tha  two  sections  upon  the  lea?e."  The  judgment  for  the  plaint- 
[1041  and  1942]  together,  the  intent  seems  clear    iif,  given  in  tlie  lower  court,  was  affirmed. 

1942.    Wlien  leksee  may  make  repairs,  etc. 

Si:c.  1942.  If  within  a  reasonable  time  after  notice  to  the  lessor  of  dilapida- 
tions which  he  ought  to  repair  he  neglects  to  do  so,  the  lessee  may  repair  the 
Bame  himself,' where  the  costs  of  such  repairs  do  not  require  an  expenditure 
greater  than  one  month's  rent  of  the  premises,  and  deduct  the  expenses  of  such 
repair;i  from  the  rent,  or  the  lessee  may  vacate  the  premises,  in  which  case  he 
shall  ba  discharged  "from  further  payment  of  rent,  or  performance  of  other  con- 
ditiinis.  [  Amend mciU,  approced  March  30,  1874;  Amendments  1873-4,  24G;  took 
eJfeclJuli/  1,  1874.  J 

340 


Title  V,  Chap.  II.]  HIRIXG  OF  REAL  PROPERTY.  §§  1943-1947 

•     When  lessee  may  repair  at  lessor's  ex-  malce  the  repairs  needed,  and  is  also  authorized 

pense. — lu  the  section  as  originally  proposed  to  make  them  himself  when  tliey  do  not  recjaire 

tiiere  was  neither  any  limit  to  the  amount  of  an   expenditure  exceeding   one    month's    rent, 

repairs    nor  did  it  ci-ntain  the  above  alterna-  which  would  seem  to  be  all  that  with  justice 

live.     In  proposing  tliis  amendment,  tlie  code  to  the  landlord  could  be  allowed  to  the  tenant. " 
examiners  ur;4eil:   '•  Tlie  present  section  author-         The  observation  of  the  code  commissioners 

izcs  tlio  tenant  to  repair  dilapidations,  however  to  t'le  original  section — an  observation  losing 

great,  e\  en  tlmngli  tliey  might  require  the  re-  none  of  its  force  by  reason  of  the  amendment — 

construction  of  half  of  the  premises,  and  deduct  is:  '"The  rules  prescribed  in  the  precedin-^  sec- 

:the   expenses   of    the    repairs    from    the   rent,  tiou  necessitate  this." 

When  buildings  have  been  nearly  destroyed  by         See  tiie  facts  in  Saviiifja  L.  Soc.  v.  G>'rich'e)>, 

fire,  or  an  eartlicjuake,  the  exercise  of  this  right  C4  Cal.  5J0,  where  a  letter  from  the  vice-presi- 

vould   jirove  of  serious  injury  to  tlie  landlord,  dent  of  the  biuli  was  held  not  to  empower  the 

Tiie  tenant  is  given  t!ie  privilege  of  vacating  tenant  to  charge  the  bank  with  cost  of  repairs 

.the  premises  m  case  tiie  landlord  neglects  to  iu  excess  of  the  rent. 

1943.  T'Tm  of  hirinrj  loJi^n  no  limit  is  fixed. 

Sec.  11)43.     A  liiring'  of  real  property,  otlier  tlian  loclging3  and  dwellin;^- 

liouses,  in  places  where  there  i.s  no  usage  on  the  subject,  is  presumed  to  be  for 

one  year  from  its  commencement,  unless  otherwise  expressed  in  the  hiring. 

Torm  of  hiring. — "This  section  adopts  a  In  smie  of  the  larger  cities,  such  as  New  York, 
now,  but  obvioiialy  convenient  if  not  necessary,  it  is  considered  to  operate  well,  and  may  every- 
ru'.e  as  to  the  time  for  which  tlie  hiring  is  made,     where:"  Commissioners'  note. 

1944.  Ilirinfj  of  lodgingH  for  indffinile  term. 

Skc.  1944.  A  hiring  of  lodgings  or  a  dwalling-house  for  an  unspecified  term 
is  presumed  to  have  been  made  for  such  length  of  time  as  the  parties  adopt  for 
the  estimation  of  the  rent.  Thus  a  hiring  at  a  monthl}'  rate  of  rent  is  presumed 
to  be  for  one  month.  In  the  absence  of  any  agreement  respecting  the  length 
of  time  or  the  rent,  the  hiring  is  presumed  to  be  monthly. 

1945.  Pf'TLewal  of  lease  bij  lessee's  continued  posS''ssion. 

Si:c.  1045.     If  a  lessee  of  real  property  remains  in  possession  thereof  after  the 

expiration  of  the  hiring,  and  the  lessor  accepts  rent  from  him,  the  parties  are 

presumed  to  have  renewed  the  hiring  on  the  same  terms  and  for  the  same  time, 

not  exceeding  one  month  when  the  rent  is  payable  monthly,  nor  in  any  case 

one  year. 

R^U3■^wal. — Prior  to  the  adoption  of  this  sec-         Covenant  for  the  construction  of  buildings 

tion,  ii,  at  llie  termination  of  a  lease  fora  year,  contain"d  in  tiie  original  lease  is  not  to  be  cou- 

•\vith  lent  payable  montidy,  the    landlord   re-  sidek-ed  as  renewed   wicii  the   renewal  of  t'le 

ccived    lent   for   the    new    mo:ith,   it  was  not  lease:   J/iH  v.   Bfa'ty,  Gl  Cal.  '2d'l.     In  Morku 

deemed    to   create    I)y   implication  a   renewed  v.  /I'yt//,  G3  Id.  107,  the  tenant  erected  a  build- 

Icse  for  a  year:   IVnmnihenj  v.  Myer.%  32  Cal.  ing  on  tlie  leased  premises,  and  at  the  exij:ra- 

93;  Sl(i'i<i'<  v.   ElkitK,   4.")  id.    1-54.     But  "  tiiis  tion  of  liis  term  tordc  a  new  lease  without  say- 

6Jc!.io;i,"  say  the  commissioners,  "provides  a  ing  tlierein  anything  about  tiie  buildin  ;s;  they 

tliifereut  rule."    See  next  section.  were  thereby  held  to  have  passed  to  the  lessor. 

19<6.    Notice  to  quit. 

Sec.  1'.)4G.  A  hiring  of  real  property,  for  a  term  not  specified  by  the  parties, 
is  deemed  to  be  renewed,  as  stated  in  the  last  section,  at  the  eud  of  the  term 
implied  b}'  law,  unless  one  of  the  parties  gives  notice  to  the  other  of  his  inten- 
tion to  terminate  the  same,  at  least  as  long  before  the  expiration  thereof  as  the 
term  of  the  hiring  itself,  not  exceeding  one  month. 

Terminatioii  of  estates  at  will:   See  ante,  kinds  of  tenancies.     As  to  the  right  to  change 

Bees.  "iK)  ( t  Ri'q.,  and  notes.  tlie  terms  of  a  lease  being  deiieinlcut  on  statu- 

Terminatlou  of  tenancy  generally:  See  a  tory  auDliority,  see  Slopmlkamp  v.  Manjeol,  -42 

Very  i;-.ni|)lete  ro\  iew  of   the  cases  iu  a  note  to  Cal.  317. 
42  Am.  Dec.  125,  on  the  termination  of  various 

1947.    Rent,  when  pnynhle. 

Sec.  1 947.  When  there  is  no  u.s.age  or  contract  to  the  contrary,  rents  are  pay- 
able at  the  termination  of  the  holding,  when  it  does  not  exceed  one  year.     If 

su 


§§  194S,  1949 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


the  holding  13  hj  the  day,  week,  month,  quarter,  or  year,  rent  is  payable  at  the 

termination  the  respective  periods,  as  it  successively  becomes  due. 

"This  is  made  to  conform  to  general  usage  of  other  hirings  in  this  chapter:"  Commissioners' 
note. 

1948.    Ailomment  of  a  tenant  to  a  stranger. 

Sec.  1948.  The  attornment  of  a  tenant  to  a  stranger  is  void,  unless  it  ia 
made  with  the  consent  of  the  landlord,  or  in  consequence  of  a  judgment  of  a 
court  of  competent  jurisdiction. 


Grants  of  rents  or  reversions;  See  ante. 
Bee.  111. 
ni^lits  of  l3S3or  and  lessse,  ou  transfer  of 

realty:  See  ante,  sees.  821  et  seq. 

Attornment  to  strangsr  is  void  as  to  the 
landlord,  xmless  made  witli  his  consent,  or  in 
coiiseriuenco  of  a  judgment  or  decree  of  a  court 
of  competent  jurisdiction:  Thompson  v.  Piochc, 
4-1  Cal.  SOS.  But  to  justify  such  attornment, 
on  tlie  ground  of  judgment  for  the  leased  prem- 
ises, it  is  necessaiy  for  tlie  tenant  to  show  that 
the  landlord  iiad  notice  of  the  pendency  of  the 
action:  Douglas  v.  Fnlda,  45  Id.  592.  If  the 
landlord  has  notice  and  actually  defends,  he  will 
be  estopped,  as  to  the  tenant,  to  deny  that  the 
tenant  was  not  evicted  hy  paramount  title: 
WhcAock  V.  Warsrhaurr,  34  Id.  2G5.  After 
judgment  for  the  premises,  if  the  tenant  attorns 
and  I'ays  rent  to  the  plaintiff,  the  jio-ssession  of 
the  former  will  ho  the  possession  of  the  latter: 
Mccluim  V.  McKay,  ,37  H.  154. 

All  assignment  of  his  lease  hy  the  tenant  is 
not  an  attornment  to  the  assignee — it  simply 
m.ikes  the  latter  the  tenant  of  the  lessor:  Mc- 
Lcran  v.  Benton,  4.'}  Cal.  4G8. 

The  tenant  may  show  that  the  attornment 
was  hy  ndstake  or  fraud:  AIcDevitt  v.  Sullivan, 

8  Cal.  592. 

Estoppel  to  deny  landlord's  title:  See  a 
valuahle  article  in  5  Am.  Law  Rev.  1,  upon 
this  topic.  One  who  enters  into  the  possession 
of  land  under  another  cannot  question  the  title 
of  him  under  whom  he  holds:  Jloen  v.  Shn- 
mons,  1  Cal.  119;  Pierce  v.  Miuturn,  I  1.1.  470; 
Ramirez  v.  Kent,  2  Id.  558;  Tew/csbun/  v.  Mc- 
Graf,  .S.3  Id.  237;  Anderson  v.  Parker,  6  Id. 
197:  Smilh  v.  Shatv,  IG  Id.  88;  'J'errett  v.  Cow- 
enhaven,  79  N.  Y.  400;  Nitns  v.  Sherman,  43 
Mich.  45;  Campan  v.  Lnfferty,  Id.  429;  Bet/a  v. 
Wnr/h,  39  N.  J.  Eq.  82;  J/'rdch  v.  Bullock,  57 
N.  H.  15.  This  principle  controls  in  favor  of 
the  landlord's  vendor:  McKune  v.  Montr/omen/, 

9  Cal.  575;  and  so  where  the  defendant  entered 
under  t!ie  plaintiff's  tenant:  Anderson  v.  Par- 
ker, G  Id.  197.  An  alien  non-resident  was  held 
entitled  to  the  estoppel  in  Ilamirez  v.  Kent,  2 
Id.  558. 


But  the  estoppel  endures  no  longer  than  the 
tenant's  possession  uuder  the  lease:  WU  tson  v. 
Cleiveland,  3d  Ca\.  192.  And  such  possession 
will  be  deemed  to  continue,  for  the  purposes  of 
the  estoppel,  even  after  the  expiration  of  the 
term,  where  there  has  been  no  surrender  of 
possession  or  notice  to  the  landlord  that  the 
tenant  shall  claim  under  another  title:  Miller 
v.  Lang,  90  Mass.  13.  The  possession,  how- 
ever, is  considered  interrupted  by  a  construc- 
tive eviction:  Whalin  v.  White,  25  N.  Y.  4G2, 
4G5;  Green  vault  v.  Davis,  4  Hill,  463;  Sinters  v. 
Sa'tus,  3  Denio,  214;  Pioss  v.  Dysart,  33  Pa.  St. 
452;  and  likewise  the  California  cases  supra, 
requiring,  however,  notice  to  the  landlord  of 
the  pendency  of  proceedings  in  which  the  judg- 
ment was  rendered  under  which  the  construc- 
tive eviction  is  alleged. 

That  the  tenant,  after  surrendering  posses- 
sion, may  set  up  a  i)aramount  title,  see  Wlllson 
V.  Clei'veland,  30  Cal.  190;  or  that  he  may 
show  that  tlic  landlord's  title  has  terminated, 
sec  McDevilt  v.  Su'livan,  8  Id.  592. 

Whetheronc  already  in  possession  is  estopped 
to  deny  the  title  of  his  lessor  is  a  mooted  (pies- 
tion,  in  the  absence  of  mistake,  fraud,  or  mis- 
representation on  the  part  of  the  les.sor.  Where 
the  tenant  has  been  induced  to  take  the  lease 
by  these  wrongful  means,  he  may  question  his 
lessor's  title:  Carter  v.  Marshall,  72  111.  009; 
Swift  V.  Denii,  11  Vt.  323;  Shultzv.  Elliott,  11 
Humph.  183;  Miller  v.  McBrier,  14  Serg.  &  R. 
382.  But  whether  the  prior  possession,  in  the 
absence  of  wrongful  procurement  of  the  lease, 
will  set  the  estoppel  at  large,  is  a  matter  of 
doubt.  It  is  answered  in  the  affirmative  in 
California:  Tewksbnry  v.  ^fagrajf,  33  Cal.  2.37; 
Fraiklin  v.  Merida,  35  Id.  558;  and  in  tlio 
negative  in  New  York:  Prevot  v.  Lau-reuce,  51 
N.  Y.  219;  and  in  Kentucky;  Patterson  v. 
Hansel,  4  Bush,  654.  See  Mr.  Bigelow's  dis- 
cussion of  this  matter.  Estoppel,  409  et  seq. 

See,  for  an  extended  treatise  upon  this  sub- 
ject, Bigelow  ou  Estoppel,  390,  and  the  article 
in  5  Am.  Law  Rep.  1,  referred  to  supra,  to 
which  Mr.  Bigelow  admits  himself  to  be  greatly 
indebted. 


1949.    Tenant  mast  deliver  notice  served  on  him. 

Sec.  1949.     Every  tenant  who  receives  notice  of  any  proceeding  to  recover 

the  real  property  occupied  by  him,  or  the  possession  thereof,  must  immediately 

inform  his  landlord  of  the  same,  and  also  deliver  to  the  landlord  the  notice,  if 

in  writing,  and  is  responsible  to  the  landlord  for  all  damages  which  he  myr 

sustain  by  reason  of  any  omission  to  iuforin  him  of  tlie  notice,  or  to  deliver  it  to 

hi;n  if  in  writing.      \A:nen:hnent,  approved  March  3U,  1874;  Amendments  1873-4, 

24G;  took  effect  Jnhj  1,  1874.] 

Tenant  must  give  notice  of  advers3  pro-     191S,  supra,  making  judgment  against  him  not 
ceedin^;;    See   the  cases   i;i  tlie  note  to   sej.     a  [>rotectioa  as  against  the  unuotilied  landlord. 

.342 


Trrut  V,  Chap.  III.]         HIUmG  OF  PERSONAL  PROPERTY.  §§  1950-1957 

1950.    Letting  parts  of  rooms  forbidden. 

Sec.  1950.  One  who  hires  part  of  a  room  for  a  dwelling  is  entitled  to  the 
whole  of  the  room,  notwithstanding  any  agreement  to  the  contrary;  and  if  a 
landlord  lets  a  room  as  a  dwelling  for  more  than  one  family,  the  person  to  whom 
he  first  lets  any  part  of  it  is  entitled  to  the  possession  of  the  whole  room  for  the 
term  agreed  upon,  and  every  tenant  in  the  building,  under  the  same  landlord, 
is  relieved  from  all  obligation  to  pay  rent  to  him  while  such  double  letting  of 
any  room  continues. 

"This  provision  is  intended  to  prevent    will  be  a  punishment  that  could  he  enforced  by 
one  of   tiie  chief  abuses  of   tenement-houses,     way  of  defense  to  an  action  therefor:"  Corn- 
Mere  penalties,  whether  civil  or  criminal,  are     luissioners'  statement, 
not  likely  to  be  enforced.     But  the  loss  of  rent 

An  Act  concerning  lodging-houses  and  sleeping  apartments  loithhi  the  limits  of  incorporated  cities. 

[Approved  April  3, 1876;  1875-6,  7J9.] 
Kumher  of  cnluc  feH  for  each  person. 

Section  1.  Every  person  who  owns,  leases,  lets,  or  hires,  to  any  person  or  persons,  any  room 
or  apartment  in  any  building,  house,  or  other  structure,  within  tiie  limits  of  any  incorporated 
city,  or  city  and  count}',  within  the  state  of  California,  for  the  purpose  of  a  lodging  or  sleeping 
apartment,  which  room  or  ajiartment  contains  less  tliaii  five  hundred  cubic  feet  of  K^iacc,  in  the 
clear,  for  each  person  so  occupying  such  room  or  apartment,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  sliall,  upon  conviction  thereof,  be  punished  l)y  a  line  of  not  less  tiian  tifty  (50)  dol- 
lars or  more  than  live  hundred  (500)  dollars,  or  by  imprisonment  in  the  county  jail,  or  by  both 
such  lino  or  imprisonment. 
Misdemeanor. 

Sec.  2.  Any  person  or  persons  found  sleeping  or  lodging,  or  who  hires  or  uses  for  the  pnrposo 
of  sleeping  in  or  lodging  in  any  room  or  apartment  which  contains  less  than  five  hundred  (jCO) 
cubic  feet  of  space,  in  the  clear,  for  each  person  so  occupying  such  room  or  apartment,  shall  be 
d  'emed  gudcy  of  a  misdemeanor,  and  shall,  upon  conviction,  be  punished  by  a  line  of  not  less 
than  ten  (10)  or  more  than  fifty  (50)  dollars,  or  by  both  such  fine  and  imprisoumeut. 
BuUdiiigx  exi'ep'e'l. 

Sfic.  3.  It  thall  be  the  duty  of  the  chief  of  police  (or  such  other  person  to  whom  the  police 
powers  of  a  ciiy  are  deiegated)  to  detail  a  competent  and  qualified  otlicer  or  ollicers  of  the 
regular  force  to  examine  into  any  violation  of  any  of  the  provisions  of  this  act,  and  to  arrest 
any  person  miiity  of  any  such  violation. 

S£C.  4.  The  provisions  of  this  act  sliall  not  be  construed  to  apply  to  hospitals,  jails,  prisons, 
insane  asylums,  or  other  public  institutions. 

Sec.  5.     All  acts  or  parts  of  acts  in  conflict  with  the  provisions  of  this  act  are  hereby  repealed. 

Sec.  C.     This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 


CHAPTER  III. 

HIRING  OF  PERSONAL  PROPERTY. 

1955.  Obligrttiovs  of  letter  of  personal  properly. 

Sec.  1955.     One  who  lets  personal  property  must  deliver  it  to  the  hirer, 

secure  his  quiet  enjoyment  thereof  against  all  lawful  claimants,  put  it  into  a 

condition  fit  for  the  purpose  for  which  he  lets  it,  and  repair  all  deteriorations 

thereof  not  occasioned  by  the  fault  of  the  hirer  and  not  the  natural  result  of 

its  use. 

See  ante,  sec.  1927.     The  commissioners  cite  for  faulty  condition  of  his  hired   teams:  Se» 

Story  on  Bailment,  sec.  3S3,  as  furnishing  a  Jlorne;/  v.  Mea/dn,  115  Mass.  32o;  Uodley  v.. 

statement  <if  the  essentials  of  the  letter's  un-  Cross,  3-4  Vt.  5SG. 
dertakiug  as  to  livery-stable  keeper's  liability 

1956.  Ordinary  expenses. 

Sec.  195G.  A  hirer  of  personal  property  must  bear  all  such  expenses  concern- 
ing it  as  might  naturally  be  foreseen  to  attend  it  during  its  use  by  him.  All 
other  expenses  must  be  borne  by  the  letter. 

1957.  Extraordinary  expenses. 

Sec.  1957.  If  a  letter  fails  to  fulfill  his  obligations,  as  prescribed  by  section' 
nineteen  hundred  and  fifty-five,  the  hirer,  after  giving  him  notice  to  do  so,  if. 

343 


§§  ia-.S-1965  OBLIGATIONS-  [Div.  Ill,  Part  IV, 

Bucli  ijotice  can  conveniently  be  given,  may  expend  any  reasonable  amonnt 

ueceswary  to  make  good   the  letter's  default,  and  may  recover  such  amouufc 

fyom  liiiu. 

"Thus  the  liirrr  of  an  animal  may  recover  flarrivfjton  v.  Smjchr,  3  Barix  3S0;  I-hfll  v. 
the  expense  of  necessary  nieilical  aUeinlance  vVo/w//,  4  Gralt.  17(i;  sJt;e,  however,  HfdJlii;/  v. 
And  extra  aceoiiinioJationa  daring  its  sickness:     JJaU,l]iih\).'6dij:"  Coniniissiouers'  illustraiiou. 

1353,    Riiurn  offJu'ng  hired. 

Skc.  1958.     At  the  expiration  of  the  term  for  which  personal  property  is  hired, 

the  hirer  must  return  it  to  the  letter  at  the  place  contemplated  by  the  pirtien  at 

t.he  time  of  hiring;  or  if  no  particular  place  was  so  contemplated  by  them,  at 

the  place  at  which  it  was  at  that  time. 

"  The  same  rule  applies  here  as  to  other  bailments:"  Commissioners'  note;  see  ante,  sees.  1806, 
1824. 

1959.    Charter-party,  what. 

Sec.  1959.     The  contract  by  which  a  ship  is  let  is  termed  a  charter-party. 

By  it  the  owner  may  either  let  the  capacity  or  burden  of  the  ship,  continuing  the 

employPxient  of  the  owner's  master,  crew,  and  equipments,  or  may  surrender 

the  entire  ship  to  the  charterer,  who  then  provides  them  himself.     The  master 

or  a  i^art  owner  may  be  a  charterer. 

See  avtp,  sec.  965.  tract  of  afTi'eiglitmcnt,  and  the  owner  or  his 

Coniraot    of    affreishtraent. — Whoi-e   the  .Tjent,  his   master,  may  hold  possession   of  the 

owner  of  the  vessel  lets  only  the  canning  ca-  freight,  hcrewlieat,  until  the  lien  for  frei  ditage 

pacity  of  his  ship,  and  not  the  ship  itself,  and  and   charge   had   lieen    extinguished:    Hays  v. 

retains  tlie  possession,  co)nma:id,  and  navigation  Campbell,  55  Cal.  421. 

of  the  vessel,  such  contract  ia  considered  a  con- 


TITLE  VI. 

SERVICE. 

Chapter  I.     Service  with  Employment 1905 

II.     Particular  Employments 2009 

XII.     Service  without  Employment 2078 

CHAPTER  I. 

SERVICE  WITH  EMPLOYMENT. 

"Tlie  scope  of  this  chiiptsr  is  not  confined     See  Edwards  on  Bailm.,  p.  338;  Stoiy  onBailm., 
to  servants,  but  includes  factors,  brokers,  car-     sees.  421-423:"  iStatemeut  by  conimissionei-s. 
riers,  agents,  and  all  similar  classes  of  persons: 

Article  I.  Definition  of  Employment ^..^ ^..., 1^05 

II.  Oblioation.s  of  the  Employer 1  "09 

III.  Oblioation.s  of  the  E-mployee 1  i'~5 

IV.  Termination  of  Employment ^ 1S06 

ARTICLE  I. 

definition  of  employment. 
1965.    Emjyloyment,  what. 

Sec.  19G5.  The  contract  of  employment  is  a  contract  by  which  one,  who  is 
called  the  employer,  engages  another,  who  is  called  the  employee,  to  do  some- 
thing for  the  benefit  of  the  employer  or  of  a  third  person. 

Such  a  contract  of  employment  can  be     may  be  paid  out  of  tlie  proceeds  of  his  lahor: 
jmadu  with   a  corporation    through   its  agents     Croideyw.  Genessee  Allniaij  Co.,  oTt  dxl.  ITi. 
^without  a  sealed  agreement;  and  the  employee 

344 


Title  VI,  Cuap.  I.J 


SERVICE  AVITH  EMPLOYMENT. 


§§  190^1971 


ARTICLE  II. 

OBLIGATIONS    OF    TUK     EMPLOYER. 

1S69.    WJir'n  employer  munt  indemnify  employee. 

Sec.  19G9.  An  employer  must  indemnify  bis  employee,  except  as  prescribed 
in  tlie  nest  section,  for  all  that  be  necessarily  expends  or  loses  in  direct  conse- 
quence of  the  discbarge  of  bis  duties  as  sucb,  or  of  bis  obedience  to  tbe  direc- 
tions of  tbe  employer,  even  tbougb  unlawful,  unless  tbe  employee,  at  tbe  time 
of  obeying  Gucb  directions,  believed  tbem  to  be  unlawful. 

Liability  to  employee. — This  ia  the  correlative  of  the  following  section,  the  note  to  which 

COUUlllt, 

1970.    When  not 

Sec.  1970.     An  employer  i?  not  bound  to  indemnify  his  employee  for  losses 

sufiered  by  tbe  latter  in  consequence  of  tbe  ordinary  risks  of  tbe  lousiness  ia 

wbicb  be  is  employed,  nor  in  consequence  of  tbe  negligence  of  anotlier  person 

emjiloyed  by  tbe  same  employer  in  tbe  same  general  business,  unless  be  has 

neglected  to  use  ordinary  cai-e  in  tbe  selection  of  tbe  culpable  employee. 

this  imp:irtant  qualificntioii:  "  But  this  rule 
can  only  he  predicated  ot  cases  wliero  the  ser- 
vj'.nt  .and  t'.io  master  have  ctjiial  means  cf  knowl- 
edge;" citing  Looiian  v.  Urochray,  28  How. 
Pr.  472.  In  Baxter  v.  Roh:rh,  44  Cal.  ISS,  and 
in  Ma'.one  v.  J/awtej/,  4G  Id.  400,  inr'ortance  is 
given  t)  the  necessity  of  there  being  equal 
means  of  knowledge. 

IJogligeuoe  of  f^no-w-employGS.  —  Tliat 
an  eiupluycr  is  not  li.,blc  for  the  negligence  of 
aco-e.nployee,  Tinle.ssncg'igent  in  the  selection 
of  sucli  co-employee,  see  //onrtu  v.  C.  P.  I!, 
li.,  49  Cal.  ]2j;  Collirr  v.  Steiiihart,  51  Cal. 
110;  McLmn  v.  Blue  Point  Graret  M.  Co.,  Id. 
2r)5;  McDonald  v.  llnzdHiie,  53  Id.  .^j.  And 
in  hlcLc.in  v.  Blue.  Point  Gravel  IT.  Co.,  siqn-a, 
it  was  decided  that  the  code  "recognizes  no 
distinction  growing  out  of   the  grades  of  em- 


Employer's  liability  to  employee. — Ordl- 
nary  rl<L-i  of  the  i«.si//es,s'. — Onj  who  contracts 
to  perform  labor  for  another  takes  upon  him- 
Belf  tlio  risks  necessarily  and  usually  incident 
to  the  employment:  Baxter  v.  /,'oljeits,  44  Cal. 
188.  II'J  contemplates  the  danger  of  ordinary 
risks  and  jicrils  incident  to  the  performance  of 
the  stipulated  services,  and  tlic  compensation 
is  presumed  to  be  adjusted  accordingly:  /l;r- 
tvcU  V.  Boatoii  <t  Worceder  /'.  /'.  Co. ,  4  ]\Iet. 
49;  so  also  Lauivg  v.  N.  Y.  C.  R.  li.  Co  ,  49 
N.  Y.  r>21;  Strahlendorf  V.  /.'oseut/ial,  nO  Wis. 
674-,  jVoy/es  v.  Hmith,  28  Vt.  59,  and  the  cs.scs 
cited  iij'ra.  Put  it  is  only  sucli  risks  as  are 
necessarily  .and  usually  incidental  to  the  em- 
ployment that  ai-e  thus  assumed:  Baxter  v. 
J'oheri.-t,  nupra.     Aside  from  the  gcnei'al  nature 

of  tljc  business  itself,  features  (  f  tlie  particular  ^  ^ 

employment  may  add  to  the  danger,  and  the  ployment  of  the  respective  employees;  nor  does 
knowledge  or  means  of  knowledge  of  such  lea-  ib  give  any  effect  to  the  circumslanee  that  the 
turcs  oil  tlie  part  of  the  employee  enters  into  fellow-servant  through  whose  negligence  the 
the  fixing  the  employer's  liability.  The  rule  in  i:;jury  came  was  the  superior  of  the  plaintiff  in 
this  particular  is  thus  stated  by  Thoinpnon.  2  the  general  service  in  wliich  they  were  in  cora- 
Negligenee,  ji.  1008:  "If  the  servant,  before  lie  mon  engaged."  But  this  ruling  was  subse- 
cnrcrs  the  service,  knows,  or  if  ho  aTterwards    qucntiy   departed    from    in    Beetion.    v.    Green 


discovers,  or  if  by  the  exercise  of  oidinary  ob- 
ecrvation  or  reasonable  skill  ami  diligence  in 
Lis  department  of  service  ho  may  discover,  that 
the  buiieiing,  premises,  machine,  appliance,  or 
fellow-servant  in  connection  with  whicli  or 
with  wlioni  he  is  to  labor  is  uns.ifc  or  ui.lit  in 


Mountain  G.  M.  Co.,  57  Id,  20,  and  a  superin- 
tendent of  a  mining  company  was  deemed  not 
to  1)0  a  fellow-employee  with  tlie  plaintiff  in 
the  sense  intended  by  section  197!J;  see  also 
DuPrali  V.  Lick,  88  Id.  GJl.  Cut  the  rule  ex- 
empting  the   employer,  here  a  railroad   com- 


any  particular,  and   if,  notwithstanding  such     pany,  from  liability  for  injuries  to  an  employee 


knowledge* or  means  of  knowledge,  lie  \olun- 
tarily  enters  into  or  continues  ia  the  nmploy- 
mcnt  wi  hout  objection  or  complaint,  he  is 
deemed  to  assume  the  risk  of  the  danger  thus 
know  n  iv  discoverable,  and  to  waive  any  claim 
for  d  luKiges  .against  the  master  i;i  case  it  s'lall 
result  in  injury  to  him."  In  support  of  this 
Etatement,  lh(!  author  refers  to  a  host  of  decis- 
ions i.i  difTerent  states,  to  whicli  Soivdeu  v. 
Idaho  M.  Co.,  55  Cal.  44.'>;  and  Sireenei/  v.  C. 
P.  U.  U.,  57  Id.  15,  may  be  addetl.    lie  makes 


fro;n  the  negligence  of  a  felow-employee  has 
no  application  where  the  negligent  and  unskill- 
ful manner  in  which  the  ror.d  was  constructed 
was  the  occasion  of  the  injury:  Traslc  v.  Cal. 
S.  n.  n.  Co.,  G.3  Id.  90. 

For  a  comprehensive  statement  of  the  em- 
ployer's liability  to  .a  servant  for  injuries  re- 
sulting from  negligence  or  misconduct  of  a  fel- 
low-servant, see  the  note  to  Mnrrai/  v.  S.  G. 
nadroad  Co.,  30  Am.  Dec.  279-290. 


1071.    Employer  to  indemnify  for  his  own  negligence. 

Si:c.  1971.     An  employer  must  in  all  cases  indemnify  Lis  employee  for  losses 
caused  bj'  tbe  former's  want  of  ordinary  care. 

345 


§§  1975-19S1  OBLIGATIONS.  (Dnr.  III.  Paet  IV, 

ARTICLE  III. 

OBLIGATIONS    OF   THE    EMPLOYEE. 

1975.  Ditties  of  gratuitous  employee. 

Sec.  1975.     One  who,  without  consideration,  undertakes  to  do  a  service  for 

another,  is  not  bound  to  perform  the  same,  but  if  he  actually  enters  upon  its 

pei'foriijance,  he  must  use  at  least  slight  care  and  diligence  therein. 

Gratuitous  employee — The  commissioners        Sarvice  ■vT-itliout  emplojrment:   See  post, 
likon  tlio  ilu'.ies  of  this  employee  to  those  of  a    sec.  2078. 
gratuitous  mandatary.  ObligationsofsratuitouscarrierrSec. 20S9. 

1976.  Same. 

Sec  1976,  One  who,  by  his  own  special  request,  induces  another  to  intrust 
him  with  the  i:)erformance  of  a  service,  must  perform  the  same  fully.  In  other 
cases,  one  who  undertakes  a  gratuitous  service  may  relinquish  it  at  any  time. 

Compare  with  section  1888. 

1977.  Same. 

Sec.  1977.     A  gratuitous  employee  who  accepts  a  written  power  of  attorney 

must  act  under  it  so  long  as  it  remains  in  force,  or  until  he  gives  notice  to  his 

employer  that  he  will  not  do  so. 

"Duty  of  gratuitous  employee:  Code  La.,  his  hands  a  power  which  he  may  use  to  the 

sec.  2971.     Tliis  provision  is  new  to  the  com-  detriment  of  his  principal,   and   misleads  the 

mon   law,  but   is   founded   upon   justice.     By  latter  into  the  belief  that  he  will  use  it  for  his 

retaining  the  instrument,  the  attorney  keeps  in  benefit:"  Commissioners'  note. 

^       1978.   Duties  of  employee  for  reward 

Sec.  1978.     One  who,  for  a  good  consideration,  agrees  to  serve  another  must 

perform  the  service,  and  must  use  ordinary  care  and  diligence  therein,  so  long 

as  he  is  thus  employed. 

Employee  to  use  ordinary  care. — He  is  skill  as  he  possesses:  Sec.  19S4.     For  the  em- 
bound  to  exurcise  a  reasonable  degree  of  skill,  ployce's  liability  for  his  culpable  negligence,  se© 
imless  his  employer  knows  of  his  want  of  skill:  sec.  1990,  post. 
Sec.   1983;  and  is  always  bound  to  use  such 

1979.  Duties  of  employee  for  his  own  benefit. 

Sec.  1979.  One  who  is  employed  at  his  own  request  to  do  that  which  is  more 
for  his  own  advantage  than  for  that  of  his  employer  must  use  great  care  and 
diligence  therein  to  protect  the  interest  of  the  latter. 

1980.  Contracts  for  service  limited  to  two  years. 

Sec.  1980.  A  contract  to  render  per.^oual  service,  other  than  a  contract  of 
apprenticeship,  as  provided  in  the  chaptsr  on  master  and  servant,  cainot  be 
enforced  against  the  employee  beyond  the  term  of  two  years  from  the  com- 
mencement of  sei'vice  under  it;  but  if  the  employee  voluntarily  continues  his 
service  under  it  beyond  that  time,  the  contract  may  be  referred  to  as  affording 
a  presumptive  measure  of  the  compensation. 

"This  is  a  new  but  obviously  just  provision:  "  Cole  commissioners'  note. 

Master  and  servant:  See  post,  sec.  2009;  and  as  to  apprenticeship,  see  a)ite,  sees.  264  et  seq. 

)(     1981.   Employee,  duty  of. 

Sec.  1981.  An  employee  must  substantially  comply  with  all  the  directions 
of  his  employer  concerning  the  service  on  which  he  is  engaged,  except  where 
such  obedience  is  impossible  or  utdawful,  or  would  impose  new  and  unrea- 
sonable burdens  upon  the  employee.  \  Anii^n J ment,  approved  March  30,  1874; 
Amendments,  1873-4,  240;  took  effect  Jidy  1,  1874.] 
Ooedieaoe  required  from  factor:  Sec.  2027. 

340 


Title  VI,  Chap.  I.]  SERVICE  WITH  EMPLOYMENT.  §§  1982-1990 

1982.  Employee  to  cnvfomi  to  uange. 

Sec.  1982.  Au  employee  must  perform  his  service  in  conformity  to  tbe  usage 
of  the  place  of  performance,  unless  otherwise  dii'ected  by  his  employer,  or 
unless  it  is  impracticable,  or  manifestly'  injurious  to  his  employer  to  do  so. 

Employee  to  conform  to  usage. — That  an     instructions    to    the  contrary,   see    Story  ou 
agent  must  coiiforiu  to  tlie  known  usa'je  appli-     Agency,  sec.  199. 
cable  to  the  jjarticular  agency  in  the  absence  of 

1983.  Degree  of  skill  required. 

Sec.  1983.  An  employee  is  bound  to  exercise  a  reasonable  degree  of  skill, 
unless  his  employer  has  notice,  before  eiuploying  him,  of  his  want  of  skill. 

Employes  skno'wu'want  of  skill. — Where  trilmte  the  loss  or  injury  to  his  own  rashness  or 
the  employee  is  known  not  to  ponsess  the  skill  folly  or  supine  negligence:"  Story  ou  Bailua., 
rc^uiruJ,  an  employer  "ought  properly  to  a,t-     sec.  43J. 

1984.  Mud  use  tildll. 

Sec.  1984.     An  emploj-ee  is  always  bound  to  use  such  skill  as  he  possesses, 

BO  far  as  the  same  is  required,  for  the  service  specified.     [Amend mi^nt,  approved 

March  30,  1874;  Amendments  1873-4,  247;  look  rffecl  July  1,  1874.] 

That  the  employee  may  employ  others  to  do  contracted  for,  see  Le  t  v.  Wilson,  24  Cal.  308; 
tiie  work  where  his  personal  attention  is  not     compare  ^jos^,  sec.  1939. 

19S5.    What  belongs  to  employer. 

Sec.  1985.     Everything  which  an  employee  acquires  by  virtue  of  his  employ- 
ment, except  the  compensation,  if  any,  which  is  due  to  him  from  his  employer, 
belongs  to  the  latter,  whether  acquired  lawfully  or  unlawfully,  or  during  or 
after  the  expiration  of  the  term  of  his  employment. 
19SG.    Duty  to  account. 

Sec.  19SG.  An  employee  must,  on  demand,  render  to  his  employer  just 
accounts  of  all  his  transactions  in  the  course  of  his  service,  as  often  as  may  be 
reasonable,  and  must,  without  demand,  give  prompt  notice  to  his  employer  of 
everything  which  he  receives  for  his  account. 

1887.    Employee  not  bound  to  deliver  icilhout  demand. 

Sec.  1987.  An  employee  who  receives  anything  on  account  of  his  employer, 
in  any  capacity  other  than  that  of  a  mere  servant,  is  not  bound  to  deliver  it  to 
him  until  demanded,  and  is  not  at  liberty  to  send  it  to  him  from  a  distance, 
without  demand,  in  any  mode  involving  greater  risk  than  its  retention  by  the 
employee  himself. 

Servant  to  pay  over  ■without  demand:  See  sec.  2014. 

1983.    Preference  to  employer's  interests. 

Si-c.  1988.     Au  employee  who  has  any  business  to  transact  on  his  own  account, 

similar  to  that  intrusted  to  him  bj'  his  employer,  must  always  give  the  latter 

the  preference.     [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 

247;  took  <ffect  July  1,  1874.] 

Tlie  connnissior.eis  say  that  there  is  no  direct  authority  for  this  provision,  but  that  it  is 
required  l)y  sound  piincij)le. 

1989.  R'sponsibilUy  <f  employee  for  substitute. 

Sec.  1989.  An  employee  who  is  expressly  authorized  to  employ  a  substitute 
is  liable  to  his  principal  only  for  want  of  ordinary  care  in  his  selection.  The 
substitute  is  directly  responsible  to  the  priiKupal. 

Delega'tion  of  agent's  authority:  See  post,  sec.  2.J49  et  seq. 

1990.  Iiesponsibility  for  negligence. 

Sec.  1990.  Au  employee  who  is  guilty  of  a  culpable  degree  of  negligence  is 
lUble  to  his  employer  for  the  damage  thereby  caused  to  the  latter;  and  the 

347 


X 


t 


|§  1991-2000  OBLIOATIONS.  [T>iv.  Ill,  Part  IV, 

einploj'er  is  liable  to  liim,  if  ilie  service  is  not  gratuitous,  for  the  value  of  such 
services  only  as  arc  properly  reuJereJ. 

1991.  Sarvivlinj  emploijre. 

Sec.  191)1.  Where  service  is  to  be  rendered  bj'  two  or  more  persons  jointly, 
and  o!iG  of  tliem  dies,  the  survivor  must  act  alone,  if  the  service  to  be  rendered 
is  such  as  ho  cau  rightly  perform  without  the  aid  of  the  deceased  person,  but 
not  otherwise. 

1992.  Cnufuh'nfinl  emploiimenl. 

Sec.  Vy.V2.  The  obligations  peculiar  to  confidential  enaployments  are  defined 
in  the  title  on  trusts. 

Coaiicl3Uti.;I  eniploymsuts:  See  title  on  trusts,  post,  sees.  2215  et  seq. 

ARTICLE  IV. 

TER'jnXATION    OF    EMPLOYJIENT. 

1996.  Trr/ninafion  b>j  death,  etc.,  of  emplnijer. 

Sec.  199G.  Every  employ:iieut  in  which  the  power  of  the  employee  is  not 
couj)led  with  an  interest  in  its  subject  is  terminated  by  notice  to  him  of: 

1.  The  death  of  the  employer;  or, 

2.  His  legal  incapacity  to  contract. 

Termination    of    employmont:   See   next  sec.  40r),  and  is-obviously  just:"  Note-of  -coin. 

section.     "This  section  alters  tho  common  i:i\v  niissioiiL'is. 

l)y  continuing  tlie   power  until  t!ie  agint  lias  Tormlnition   of   agency:  See  j)08t,   seca. 

notice  of  t!io  principal's  cliange   of  condition.  2355  ct  secj^. 
Such  a  rule   is  advocated    by  Stoiy,  Agency, 

1997.  Emploijmmt,  Jiow  li'rminated. 

Sec  1997.     Everj'  employment  is  terminated: 

1.  By  the  expiration  of  its  appointed  term; 

2.  By  the  extinction  of  its  subject; 

3.  By  the  death  of  the  employee;  or, 

4.  By  his  legyl  incapacity  to  act  as  such. 

Term-mtion  of  employment:  See  last  section. 

Termui  .tion  of  agsucy  generally:  See  sec.  2355,  post,  et  seq. 

1938.    Continuance  of  service  in  certain  cases. 

Sec.  1998.  An  employee,  unless  the  term  of  his  service  has  expired,  or  unless 
he  has  a  right  to  discontinue  it  at  any  time  without  notice,  must  continue  his 
service  after  notice  of  the  death  or  incapaeit}'  of  his  employer,  so  far  as  is 
necessary  to  protect  from  serious  injury  the  interests  of  the  employer's  successor 
in  interest,  until  a  reasonable  time  after  notice  of  the  facts  has  been  commu- 
nicated to  sucli  successor.  The  successor  must  compensate  the  employee  for 
Buch  service  according  to  the  terms  of  the  contract  of  employment. 

1999.  Tcrniinatiun  at  xoill. 

Sec.  1999.     An  employment  having  no  specified  term  may  be  terminated  at 

the  will  of  either  party,  on  notice  to  the  other,  except  where  otherwise  provided 

by  this  tide. 

Master  may  discliarge  servant  at  anytime  and  may  eject  the  servant  by  force  if  necessary: 
after  notice  vvliorc  there  is  no  term  of  service,     JJe  Uriir  v.  MiiUurn,  1  Cal.  450. 

2000.  Termination  In/  employer  for  fault. 

Sec  2000.  An  employment,  even  for  a  specified  term,  may  be  terminated  at 
any  time  by  the  employer,  in  case  of  any  willful  breach  of  duty  by  the  em- 

34S 


2005.  Sale  Must  Be  by  Auction.  The  sale  by  pledgee  of 
property  pledged,  must  be  made  by  public  auction,  in  the 
manner   and   upon    the    notice    [of   sale    of   personal    property 

•»T   i'.'n<f''T"°"^-      *^"    '^'"'    ^'^   ^^^'    f'-^"^    ^"d    after   April 
16,    1909.      Stats.    1909.   Chap.   636.)  Civ.    Code,    1909 


d 


Title  VI,  Chap.  I.] 


SERVICE  WITH  EMPLOYMENT. 


§1 2001-200S 


•plojee  iu  the  course  of  his  employment,  or  in  case  of  his  habitual  neglect  of  his 

duty  or  continued  incapacity  to  perform  it. 

Servant,  whsa  may  bo  discharged:  See  po'^t,  sec.  '20')0;  wron^fnl  discharge  of  seamen: 
poxf,  sec.  '2015.  pod,  sec.  2037. 

,  G3am.cn,  -syhen  may  be  discharscd:  See 

2001.    Termination  by  employee  for  fault. 

Sec.  2001.  An  employment,  even  for  a  specified  term,  may  be  terminated  by 
the  emploj-ce  at  any  lime,  in  case  of  aiiy  willful  or  permanent  breach  of  the 
obligations  of  Lis  employer  to  him  as  an  employee. 

Tcnninatlon  by  employeo  for  causo:  S(;e  v.  Bradj'ord,  ."3  Vt.  35;  Patnote  v.  Sanders,  41 
a  full  illustration  (if  tlic  instances  in  ^v!lich  an  Vt.  C3.  Although  some  states,  ou  the  authority 
empli)ycc  is  justified  in  terminating  employ-  ami  reasoning  of  BrlUon  v.  Tamer,  G  N.  II. 
tncnt:  Wood  on  I'Jaster  and  Servant,  '2?k  4S1,  hold  thatsuch  servant  is  entitled  to  recover 

Employee's  compensation  in  such  case:     the  value  of  services  actually  rendered:  See  tho 


Sec  7'O.s'/,  sec.  200;!. 

Abandonment  of  service  ^^vithout  cause. 
Tlie  prevailing  i u!o  is,  tliat  one  who  agree:?  to 
Borve  another  for  a  sjiccilicd  time,  for  a  salary, 
to  bo  p;ud  upon  tho  expiration  of  tlio  term,  and 
who,  against  his  master's  consent  and  without 
cause,  voluntarily  abandons  tlie  employment, 
can  recover  nothing  f  :)r  the  services  rendered: 
Iln/rhuinon  v.  JVrlmore,  2  Cal.  311;  La.ig'ry  v. 
Parl:^,  8  Cow.  G3;  Smith  v.  Bnuhj,  17  N.  Y. 
173;  Uhnstead  v.  Dca'e,  19  Pick.  52S;  Ilcu.ion 
V.  ILimp'on,  32  Mo.  40S;  Schnerr  v.  Lrmp,  19 
Id.  40;  Broivn  v.  FUch,  33  N.  J.  L.  418;  llragj 


note  to  Hay  ward  v.  Leonard,  19  Am.  Dec.  272, 
275. 

That  one  who  abandons  a  building  contract 
before  tlie  completion  of  his  work  loses  the 
right  to  recover  for  work  done,  see  Blijlhe  v. 
Ponltnoi),  31  Cal.  233. 

The  master  will  be  liable  for  the  labor  per- 
formed by  a  servant  who  voluntarily  aixindona 
tlie  employment  without  cause,  if  tlie  master 
assents  to  such  abandonment,  and  slight  evi- 
dence merely  is  requisite  to  entitle  the  servant 
to  an  apportionment  of  the  contract:  JJogan  v. 
TiUow,  14  Cal.  255. 


2002.    Compensation  of  employee  dismissed  for  cause. 

Sec  2002.  An  employee,  dismissed  by  his  enjployer  for  good  cause,  is  not 
enti;;lcd  to  any  compensation  for  services  rendered  since  the  last  day  upou 
which  a  payment  became  due  to  him  under  the  contract. 


Discharging  servant:  See  sec.  2315. 

Ccmpeasatlon  of  employee  dismissed 
for  cause. — In  the  majority  of  tlie  American 
Elates,  G?i  vants'  contracts,  tliough  for  a  specified 
time,  arc  deemed  apfiortionable,  and  a  servant 
■wh  )  has  been  discliarge.l  for  cause  is  still  en- 
titled to  recover  for  the  work  actually  done: 
Jfenunan  v.  Ilcu<jan,  C3  Ga.  755;  Da  Quoin  !■  lar 
Coal  M.  Co.  v.  Tlmrwdl,  3  11!.  A  pp.  ,394; 
Foder  V.  ]V(ttson,  G  B.  f.Ion.  377;  K'ssce  v. 
Mavfidd,  14  La.  Ann.  90;  Lawrence  v.  O'nlli- 
/(■r,  33  Me.  532;  Jonrs  v.  Jmte^,  2  Swan,  G35; 
Iila^soj  V.  Taylor,  .5  Id.  447.  This  rule  difTers 
from  the  English  doctrine,  whicli  denies  to  sucli 
servant  any  right  of  recovery,  and  it  is  other- 
wise etatid  in  some  of  the  American  states. 
S^e  t'le  subject  discussed  in  a  note  to  Do  Camp 
V.  Ili'irlit,  43  Am.  I)ec.  207  cb  seep,  and  in 
VvNiod  on  iMaster  and  Servant,  252. 

Remedy  in  ca  ^e  of  ^vroagful  discharge. 
Where  the  servant  has  been  wrongfully  dis- 
charged, lie  may:  1.  Uegird  tlie  contract  as 
broken  by  the  employer,  and  sue  immodiatelv 
for  tho  breach:  Fowler  v.  ProiU,  24  Ala.  194; 
S/rmi.^s  V.  Men-lief,  G4  Id.  299;  Bo'ins  v.  Par- 
htvi,  8  Ga.  190;  Brltt  v.  //a.y.s-,  21  Id.  157; 
Colburn  v.   Woodworth,  31  Barb.   SSI;  I  learnt 


V.  Garrett,  49  Tex.  619;  Iloivard  v.  Dnhj,  61 
N.  Y.  302;  and  the  measure  of  damages  is  not 
merely  the  value  of  the  work  done,  but  tho 
prolits  tliat  would  have  been  made  had  the 
contract  l)ccn  completed:  Cox  v.  McLaiirjhlin, 
54  Cal.  G05 ;  or  2.  Treat  the  contract  as  rescinded, 
and  sue  on  a  ijuautmn  meruit  for  the  services 
performed:  ] toward  v.  Daly,  supra;  llearne  v. 
Garre.tl,  supra;  Rojers  v.  Parham,  nupra;  Brill 
v.  Hays,  su})r  >;  llyan  v.  Dai/ton,  25  Conn.  ISS; 
Clarlc  V.  Mancheder,  51  N.  K.  501;  or  3.  Con- 
sider tlic  contract  as  still  sub.'sisting,  and  at  the 
expiration  of  the  term  sue  for  the  entire  sum 
agreed  to  be  paid:  Fowler  v.  I^rout,  21  Ala. 
194;  «raw.s.s  v.  Mecrtief,  Gl  Id.  299;  R-ijersx. 
Parham,  8  Ga.  190;  Colburn  v.  Woodworth, 
31  B:irb.  331;  lleim  v.  Wo'f,  1  E.  D.  Smith, 
70;  Braddiaw  v.  Branan,  5  Picii.  L.  4G5.  In 
tlie  note  to  De  Camp  v.  //ewift,  43  A;n.  Dec. 
205,  above  referred  to,  this  subjeet  and  many 
of  l!ie  questions  arising  out  of  it  are  also  dis- 
cussed. 

Lloasuro  of  damage  -wrhen  employee  ia 
VTTongfully  discharged:  See  the  note  to  De 
Camp  V.  Hewitt,  43  Am.  Dec.  207;  ('ox  v.  Mc- 
Lauijhlin,  54  Cal.  G05;  Webster  v.  Wade,  19  Id. 
291. 


2003.    Compensation  of  employee  leaving  for  cause. 

Sec.  2003.  An  employee  who  quits  tho  service  of  his  employer  for  good 
cause  is  entitled  to  such  proportion  of  the  compensation  which  would  becoma 
due  in  case  of  full  performance  as  tho  services  which  he  has  already  rendered 
bear  to  the  services  which  ho  was  to  render  as  full  perfoi'mance. 

Terminating  employment  by  cmplDyes:  Sea  avpra,  sec.  200J . 

310 


§§  2009-2012 


OBLIGATIONS. 


[Div.  m,  pabt  rv, 


CHAPTER  11. 

PARTICULAR  EMPLOYMENTS. 

Article  I.    Master  ant>  Servant «  2009 

XL     Agents 2019 

III.  Faoiors 2026 

IV.  Ship-masters 2034 

V.     Mates  and  Seamen 2048 

VI.    Ships'  Managers 2070 

ARTICLE  I. 

MASTER   AND    SERVANT. 

2009.   Servant,  what. 

Seo.  2000.  A  servant  is  one  -who  is  employed  to  render  personal  service  to 
nis  employer,  otherwise  than  in  the  pursuit  of  an  independent  calling,  and  who 
in  such  service  remains  entirely  under  the  control  and  direction  of  the  latter, 
who  is  called  his  mastei*. 


Servant  defined — The  code  commissioners 
have  this  note: 

In  personal  relations — "domestics" — those 
who  receive  wages  and  who  are  lodged  anl  fed 
in  the  house  of  another  and  employed  in  his 
service.  Sucli  servants  are  not  particn'arly 
recognized  by  law;  they  are  menial  servants: 
1  Bla.  Com.  3_'4;  Wood  Inst.,  53;  see  2 
Boiiv.  Law  Diet.  513,  tit.  Servants.  The  title 
"blaster  and  Servant,"  ante,  sees.  2G4-27i3, 
inclusive,  relates  exclusively  to  apprentices. 
The  right  of  the  master  to  their  (servants') 
services  in  every  respect  is  grounded  on  t!ie 
contract  between  them:  2  Bouv.  Law  Diet. 
513.     Bouvier  also  says:   "  Laborers,  or  persons 


hired  by  the  day's  work,  or  any  longer  time, 
are  not  considered  servants,"  and  gives  an  ar- 
ray of  authorities  in  support  of  his  position:  Id, 
It  will  1)3  seen,  however,  by  tlie  next  section 
that  the  code  changes  the  understanding  or 
definition  of  (he  term  "servant." 

The  distinction  maile  at  the  common  law  in  the 
various  grades  of  servants  will  ]>o  found  very 
simply  and  clearly  explained  in  Wood  on  Master 
and  Servant,  2  et  seq.  Schoulcr  on  Dom. 
Rel.,  sec.  4.")8,  also  has  a  similar  statement. 

Employer  and  employee:  See,  generally, 
sees.  19G5  et  seq. 

ObligationB  of  employer:  Sees.  lOGOetseq. 

Obligations  of  employee:  Sees.  1975  et  seq. 


2010.    Trrm  of  hiring. 

Sec.  2010.     A  servant  is  presumed  to  have  been  hired  for  such  length  of  time 

as  the  parties  adopt  for  the  estimation  of  wages.     A  hiring  at  a  yearly  rate  is 

presumed  to  be  for  one  j'ear;  a  hiring  at  a  daily  rate,  for  one  day;  a  hiring  by 

piece-work,  for  no  specified  term. 

Term  of   hiring. — The  same  principle  in  ical  hiring,  where  the  evidence  shows  an  ar- 

regard  to  term  of  service  as  is  laid  down  in  tlie  rangement  for  a  difiPerent  period:  Tattcrson  v. 

above  section  is  asserted    in  Beach  v,  MaUhi,  Suffolk  Mfij.   Co.,    103  Mass.   50;    Prentiss  v. 

34  N.  J.   L.   343.      But  the  periodical   pay-  Ledyard,  28  Wis.  131. 
ment    is    not    conclusive    as    to    the    period- 

20U.    Same. 

Sec.  2011.  In  the  absence  of  any  agreement  or  custom  as  to  the  term  of 
service,  the  time  of  payment,  or  rate  or  value  of  wages,  a  servant  is  presumed 
to  be  hired  by  the  month,  at  a  monthly  rate  of  reasonable  wages,  to  be  paid 
when  the  service  is  performed. 


Terms  of  lilrins — "See  Fawcett  v.  Cash,  5 
Barn.  &  Atlol.  904;  see  also  the  rule  in  sees. 
2010,  1944,  ante;  but  see  De  Briar  v.  Mlattirn, 
1  Cal.  450.  Nominal  damages  only,  if  any, 
could  be  recovered  in  such  case:  Id.;  fixed 
term:  See  Webder  v.  Wade,  19  Id.  291;  con- 
tract entire:  Hutchinson  v.  ire^wore,  2  Id.  311; 


slight  evidence  of  assent  will  enable  one  to 
recover  on  part  performance  of  service:  Hogan 
V.  Ti'dow,  14  Id.  255:"  Note  of  coinniission- 
ers. 

Custom  bears  very  strongly  upon  tlie  inter- 
pretation of  all  contracts  of  service:  Lyon  v. 
George,  44  Md.  295. 


2012.   Renewal  of  hiring. 

Sec  2012.  "Where,  after  the  expiration  of  an  agreement  respecting  the  wages 
and  the  term  of  sendee,  the  jDarties  continue  the  relation  of  master  and  servant, 
they  are  presumed  to  have  renewed  the  agreement  for  the  same  wages  and  term 
of  service. 


350 


Tm.EYI,  Chap.  IT.]  PARTICULAR  FrMrLOYMEXTS.  §§2013-2021 

Renewal  of  contract  of  service.  Nichd-     servant  to  recover  upon  a  quantum  meruit  in 
son  V.  J'U'hiii,  r>  Cal.  474,  supports  this  sec-     such  case, 
tion,  aiul  decides  that  it  is  error  to  allow  the 

2013.  Time  of  service. 

Sec.  2013.  The  entire  time  of  a  domestic  servant  belongs  to  the  master;  and 
the  time  of  otLer  servants  to  such  an  extent  as  is  usual  in  the  business  in  which 
they  serve,  not  exceeding'  in  any  case  ten  hours  in  the  day. 

Time  of  servants. — All  the  services  reu-  ngreements  [for  service]  at  not  more  than  ten 
dered  by  one  who  receives  a  regular  salary,  of  liours;  "  Commissioners'  note.  O.i  public  work, 
the  same  nature  as  his  regular  duties,  are  pre-  the  constitution  of  1S79  declares  tliat  "eight 
Bumcd  to  bo  paid  for  by  the  salary:  Cany  v.  hours  shall  constitute  a  legal  day's  work:  " 
Hailed-,  9  Cal.  lOS.  Art.  20,  sec.  17.    Whetlier  this  provision  will  be 

L3gal  day's  v7ork. — "The  law  supplies  the  construed  to  permit  the  laborer  to  do  extra  work 
number  of  hours  of  labor  implied  in  all  such     for  extra  pay,  see  Draw  v.  Smith,  38  Cal.  323. 

2014.  Servant  to  pay  over  without  demand. 

Sec.  2014.  A  servant  must  deliver  to  his  master,  as  soon  as  with  reasonable 
diligence  he  can  find  him,  everything  that  he  receives  for  his  account,  without 
demand;  but  he  is  not  bound,  without  orders  from  his  master,  to  send  anything 
to  him  through  another  person. 

Eniployea  not  bound  to  deliver  to  employer  ■without  demand:  See  sec  1987. 

Fraudulent  appropriation  by  servant  is  eiubezzlemeut:  Sec.  508. 

2015.  When  (servant  may  be  discharged. 

Sec  2015.  A  master  may  discharge  any  servant,  other  than  an  apprentice, 
whether  engaged  for  a  fixed  term  or  not: 

1.  If  ho  is  guilty  of  misconduct  in  the  course  of  his  service,  or  of  gix>ss  im- 
morality, though  unconnected  with  the  same;  or, 

2.  ir,  being  employed  about  the  person  of  the  master,  or  in  a  confidential 

position,  the  master  discovers  that  he  has  been  guilty  of  misconduct,  before  or 

after  tl'C  commencement  of  his  service,  of  such  a  nature  that,  if  the  master  had 

known  or  contemplated  it,  he  would  not  have  so  employed  him. 

DIscliavsing  servant  for  cause — A  ser-  For  a  collection  of  English  decisions  upon  the 

vant  may  Ijctiischarged  lor  insolence  and  willful  right   to   discharge  a  servant,   see   Schouler's 

disoljedicnco  cf  orders:  Beach  v.  Mulli)i,  5  Vt.  Dom.  Rel.,  3d  ed.,  sec.  462. 

343;  lor  indecency  and  immorality:  Weaver  v.  Termination    of   employment:    See    sec. 

J-Ia's'H,  1  111.  Api'.  TmS;  for  habitual  druuken-  2001. 

ness:  '(','oiif^ol's  v.  Ocarhart,  31  Mo.  r)S.5;  for  slan-  Compensation  of  employee  dismissed  for 

dering  llio  in  atcr,  an  I  spitefully  suing  him  on  caiiSR:  See  aiHe,  sec.  2002,  and  note, 

groun.lless  charges:  Brink  v.  Fay,  7  Daly,  JjG2;  Remedy  for  vwTonsful  dismissal:  See  same 

and  see  JlcCorinick  v.  Demari/,  10  Nev.  515.  note. 

ARTICLE  n. 

AGENTS. 

2019.   Agent  to  conform  to  his  authority. 

Sec  2019.  An  agent  must  not  exceed  the  limits  of  his  actual  authority,  as 
defined  by  the  title  on  agency. 

/•.genoy:  Sees.  2205  et  seq.     The  code  com-    thority  is  specially  defined  in  the  title  9  of 
misaioncrs  refer  to  section  2295,  and  say:  "Such     this  part." 
person  is  tlie  subject  of  this  article.     His  au-         ActUcd  authority:   Sec.  2316,  post. 

2029.    Ilhist  keep  his  principal  i)  formed. 

Skc  2020.  An  agent  must  use  ordinary  diligence  to  keep  his  principal 
informed  of  his  acts  in  the  course  of  the  agency. 

2021.    Collecting  agent. 

Sec  2021.  An  agent  employed  to  collect  a  negotiable  instrument  must  col- 
lect it  promptly,  and  take  all  measures  necessary  to  charge  the  parties  thereto, 
in  case  of  its  dishonor;  and  if  it  is  a  bill  of  exchange,  must  present  it  for 
acceptance  with  reasonable  diligence. 

351 


§§2022-2035  OBLIGATIONS.  [Dnr.  Ill,  Part  IV, 

2022.    IiefponnbUlly  of  subagrnt 

Sec.  2022.  A  mere  ageut  of  an  agent  is  not  responsible  as  sncli  to  the  prin- 
cipal of  the  latter. 

ARTICLE  III. 

FACTORS. 

2026.  Factor,  what. 

Sec.  202G.  A  factor  is  an  agent  who,  in  the  pursuit  of  an  independent  call- 
ing, is  employed  by  another  to  sell  property  for  him,  and  is  vested  by  the  latter 
with  the  possession  or  control  of  the  property,  or  authorized  to  receive  payment 
therefor  from  the  purchaser. 

Faotor's  authority:    Soo  sees.  SP.GS,  2360. 

Factor's  power  to  plodg3  priaoipal's  good3:  See  sees.  23G8,  299f. 

2027.  Obedience  required  from  factor . 

Skc.  2027.  A  factor  must  obey  the  instructions  of  his  principal  to  the  same 
extent  as  any  other  employee,  notwithstanding  tiwy  advances  he  may  have  made 
to  his  principal  upon  the  property  consigned  to  him,  except  that  if  the  principal 
forbids  him  to  sell  at  the  market  price,  he  may  nevertheless  sell  for  his  reim- 
bursement, after  giving  to  his  principal  reasonable  notice  of  his  intention  to  do 
so,  and  of  the  time  and  place  of  sale,  and  proceeding  in  all  respects  as  a  pledgee. 

Obedience    required    from    employees  pal  forbids  him  to  sell:  Marjiehl  v.  Goodhue, 

generally:   ,Sec.  I'JSl.  supra.     The  exception  does  not  extt-nd  to  an 

Factor  must  obey  instructions  as  any  other  order  to  sell,  oven  thouj^h  for  leas  than  ad- 
employee:   See  Ecans  v.   Jioot,  7  N.   Y.   18G;  vauces:  Bell  v.  Palmer,  nupra.     IIu  may  still 
notwithstaniling  advances  to  principal:  Blot  v.  sell  to   leimbursc   liimself,   ou   giving   notice* 
Bokeau,  3  Id.  78;  Marfieid  v.  (loodkue.  Id.  G2;  Murjidd  v.  Goodhue,  supra. 
Bell  v.  Palmer,  G  Cow.  128;  except  his  princi- 

2028.  Sales  on  credit. 

Sec.  2028.     A  factor  may  sell  property  consigned  to  him  on  such  credit  as  is 

usual;  but  having  once  agreed  with  the  purchaser  upon  the  term  of  credit,  may 

not  extend  it. 

Authority  to  sell  on  credit. — Duty  of  the  factor  to  inquire  into  the  responsibility  of  th 
purchaser:  See  sec.  2308. 

2029.  LiabiUhj  of  factor  under  guaranfi/  commission. 

Sec.  2029.  A  factor  who  charges  his  principal  with  a  guaranty  coramissio:i 
upon  a  sale  thereby  assumes  absolutely  to  pay  the  price  when  it  fails  due,  as  if 
it  were  a  debt  of  his  own,  and  not  as  a  mere  guarantor  for  the  purchaser;  but 
he  does  not  thereby  assume  any  additional  responsibility  for  the  safety  of  his 
remittance  of  the  proceeds. 

2030.  Factor  cannot  relieve  himself  from  liabililrj. 

Sec  2030.  A  factor  who  receives  property  for  sale,  under  a  general  agree- 
ment or  usage  to  guarantee  the  sales  or  the  remittance  of  the  proceeds,  cannot 
relieve  himself  from  responsibility  therefor  without  the  consent  of  his  principal. 

ARTICLE  IV. 

SHIP-MASTERS. 

2034.  Appointment  of  master. 

Sec.  203J:.  The  master  of  a  ship  is  appointed  by  the  crwner,  and  holds  during 
his  pleasure. 

2035.  When  must  be  on  board. 

Sec  2035.  The  master  of  a  ship  is  bound  to  be  always  on  board  when  enter- 
ing or  leaving  a  port,  harbor,  or  river. 

352 


Title  VI,  Chap.  II.]  PARnCULAR  EMPLOYMENTS.  §§  203G-2048 

2036.  Pilotage. 

Sec.  203G.  On  entering  or  leaving-  a  port,  harbor,  or  river,  the  master  of  a 
Bhip  must  take  a  pilot  if  one  offers  himself,  and  while  the  pilot  is  on  board,  the 
navigation  of  the  ship  devolves  on  him. 

Regulations  respecting  pilots:  See  Pol.  Code,  sees.  2429-2491. 

2037.  Poiver  of  master  over  seamen. 

Sec.  2037.  The  master  of  a  ship  may  enforce  the  obedience  of  the  mate  and 
Beamen  to  his  lawful  commands  by  confinement  and  other  reasonable  corporal 
punishment,  not  prohibited  by  acts  of  congress,  being  responsible  for  the  abuse 
of  his  power. 

2038.  Power  of  master  over  passengers. 

Sec  2038.  The  master  of  a  ship  may  confine  any  person  on  board,  during  a 
voyage,  for  willful  disobedience  to  his  lawful  commands. 

2C39.    Lnpressiiig  private  stores. 

Sec.  2039.  If,  during  a  voyage,  the  ship's  supplies  fail,  the  master,  with  the 
advice  of  the  officers,  may  compel  persons  who  have  private  supplies  on  board 
to  surrender  them  for  the  common  want,  on  payment  of  their  value,  or  givinf» 
security  therefor. 

2040.  When  may  abandon  the  ship. 

Sec.  2040.  The  master  of  a  ship  must  not  abandon  it  dm-ing  the  voya'^e' 
without  the  advice  of  the  other  officers. 

2041.  Duties  on  abandonment. 

Sec  2041.  The  master  of  a  ship,  upon  abandoning  it,  must  carry  with  him, 
so  far  as  it  is  in  his  power,  the  money  and  the  most  valuable  of  the  goods  on 
board,  under  penalty  of  being  personally  responsible.  If  the  articles  thus 
taken  are  lost  from  causes  beyond  his  control,  he  is  exonerated  from  liability. 

2042.  Wlien  master  cannot  trade  on  his  own  account. 

Sec.  2042.  The  master  of  a  ship,  who  engages  for  a  common  profit  on  the 
cargo,  must  not  trade  on  his  own  account,  and  if  he  does,  he  roust  account  to 
his  employer  for  all  profits  thus  made  by  him. 

2C43.    Care  and  diligence. 

Sec  2043.  The  master  of  a  ship  must  use  great  care  and  diligence  in  the 
performance  of  his  duties,  and  is  responsible  for  all  damage  occasioned  by  hia 

negligeuco,  however  slight. 

2044.    Anthoritii  of  master. 

Sec  2044.     The  authority  and  liability  of  the  master  of  a  ship,  as  an  agent 

for  the  owners  of  the  ship  and  cargo,  are  regulated  by  the  title  on  agency. 

Agency  iu  general:  See  seca.  229.")  ct  scq.        Respondentia,    master    may    Lypothecatd 
Eoctomry,    master     may    hypothecata    upou:  fcieca.  JOJS  ct  seq. 
upon:  bee  sees.  3019  et  scq. 

ARTICLE  V. 

MATES   AND    SEAMEN. 

2048.   Mate,  xohat. 

Sec.  2048.  The  mate  of  a  ship  is  the  oCScer  next  in  rank  to  the  master,  and 
in  case  of  the  master's  disability,  he  must  take  his  place.  By  so  doing  he  does 
not  lost  any  of  his  rights  ai  mate. 

Ciy.  Code— 23  S53 


8§  2049-2058  OBLIGATIONS.  [Div.  III.  Pakt  IV, 

2049.  Seamen,  xcliat. 

Sec.  2040.  All  persons  employed  in  the  navigation  of  a  sliip,  or  upon  a- 
voyage,  other  than  the  master  and  mate,  are  to  be  deemed  seamen  within  the 
provisions  of  this  code. 

2050.  Mate  and  seamen,  hoio  engaged  and  discharged. 

Sec.  2050.  The  mate  and  seamen  of  a  ship  are  engaged  by  the  master,  and 
may  be  discharged  by  him  at  any  period  of  t)ie  voyage,  for  willful  and  persistent 
disobedience  or  gross  disqualification,  but  cannot  otherwise  be  discharged  be- 
fore the  termination  of  the  voj-age. 

2051.  Unseaicorthy  vessel. 

Sec  2051.  A  mate  or  seaman  is  not  bound  to  go  to  sea  m  a  ship  that  is  not 
jBeaw.orthy;  and  if  there  is  reasonable  doubt  of  its  seaworthiness,  he  may  refuse 
"to  proceed  until  a  proper  survey  has  been  had. 

Seaworthiness  dsiiued:  Sec.  2CS2. 

2052.  Seamen  not  to  lose  wages  or  lien  by  agreement. 

Sec.  2052.  A  seaman  cannot,  by  reason  of  any  agreement,  be  deprived  of  hia 
Jien  upon  the  ship,  or  of  any  remedy  for  the  recovery  of  his  wages  to  which  he 
would  otherwise  have  been  entitled.  Any  stipulation  by  which  he  consents  to 
.abandon  his  right  to  wages  in  case  of  the  loss  of  the  ship,  or  to  abandon  any 
right  he  may  have  or  obtain  in  the  nature  of  salvage,  is  void. 
Wages  in  case  of  loss  of  ship:  Sec.  2058. 

'2053.   Special  agreement  with  seamen. 

Sec  2053.     No  special  agreement  entered  into  by  a  seaman  can  impair  any  of 

this  rights,  or  add  to  any  of  his  obligations,  as  defined  by  law,  unless  he  fully 
understands  the  efi"ect  of  the  agreement,  and  receives  a  fair  compensation  there- 
for. 

:2054.    Wages  depend  on  freightage. 

Sec  2054.     Except  as  hereinafter  provided,  the  wages  of   seamen  are  due 
when  and  so  far  only  as  freightage  is  earned,  unless  the  loss  of  freightage  is 
■  owing  to  the  fault  of  the  owner  or  master. 

2055.    When  wages,  etc.,  begin. 

Sec  2055.  The  right  of  a  mate  or  seaman  to  wages  and  provisions  begins 
-  either  from  the  time  he  begins  work,  or  from  the  time  specified  in  the  agi'ee- 

ment  for  his  beginning  work,  or  from  his  presence  on  board,  whichever  first 
.  happens. 

:  2056.  Wages,  where  voyage  is  broken  vp  before  departure. 

Sec  2056.     "Where  a  voj^age  is  broken  up  before  departure  of  the  ship,  the 
.  Beamen  must  be  paid  for  the  time  tbey  have  served,  and  may  retain  for  their 
indemnity  such  advances  as  they  have  received. 

2057.  Wrongful  discharge. 

Sec  2057.  When  a  mate  or  seaman  is  wrongfully  discharged,  or  is  driven  to 
leave  the  ship  by  the  cruelty  of  the  master  on  the  voyage,  it  is  then  ended  with 
respect  to  him,  and  he  may  thereupon  recover  his  full  wages. 

2058.  'iVages,  when  not  lost  by  wreck. 

Sec  2058.  In  case  of  loss  or  wreck  of  the  ship,  a  seaman  is  entitled  to  his 
wages  up  to  the  time  of  the  loss  or  wreck,  whether  freightage  has  been  earned 
or  not,  if  he  exerts  himself  to  the  utmost  to  save  the  ship,  cargo,  and  stores. 

354 


Title  VI,  Chap.  H.]  PAHTICULAR  EMPLOYMENTS.  S§  2059-2070 

Wages  in  caise  of  v^reck. — "Thisprovis-  her    cargo,    or    as    mnch    as    can    be    saved, 

ion  is  sniistuntiallj'  enacted  in  Englanil,  Stats.  'Freightage   is   the  mother  of   wages.'      This 

7  &.  8  Vict.,  c.  112,  sec.  17,  making  the  seaman's  maxim  is  virtually  overri.Ulen  by  this  section: 

right,  hoM'ever,  absolutely  dependent  upon  the  See  2  Pars.  Mar.  Law,  589,  590.     Here,  too, 

otHcer's    ccrtilicate.       In     case    of   wreck    or  the  question  of  salvage  and  the  right  of  seamen 

other  peril,  the  seamen  are  bound  to  stay  by  thereto   is  discussed.     See  notes,  also:"  Com- 

the  vessel  and  do  all  they  can  to  save  her  or  missiouers'  note. 

2059.  Certificate. 

Si;c.  2059.     A  certificate  from  the  master  or  chief  surviving  officer  of  a  ship, 

to  the  effect  that  a  seaman  exerted  himself  to  the  utmost  to  save  the  ship,  carg'c, 

and  stores,  is  presumptive  evidence  of  the  fact. 

"This  section  is  a  necessary  sequence  to  the  terested  witness  and  the  person  vested  with 

preceding,  and  shouhl  be  recognized  as  properly  agency   and   authority   to    direct  the   work." 

jiroviding   presumptive  evidence  of  a  fact  to  Comniissionera'  note. 
vhicli  the  master  is  frequently  the  only  disin- 

2060.  Disabled  seamen. 

Sec.  20G0.  Where  a  mate  or  seaman  is  prevented  from  rendering  service  "by 
ilhiess  or  injury,  incurred  without  his  fault  in  the  discharge  of  his  duty  on  the 
voyage,  or  by  being  wrongfully  discharged,  or  by  a  capture  of  the  ship,  he  is 
entitled  to  wages  notwithstanding;  but  in  case  of  a  capture,  a  ratable  deduction 
for  salvage  is  to  be  made. 

2061.  Maintenance  of  seamen  during  sicJcness. 

Si  c.  20G1.  If  a  mate  or  seaman  becomes  sick  or  disabled  during  the  voyage, 
■without  his  fault,  the  expense  of  furnishing  him  with  suitable  medical  advice, 
medicine,  attendance,  and  other  provision  for  his  wants,  must  be  borne  by  the 
ship  till  the  close  of  the  voyage. 

2062.  Death  on  the  voyage. 

Sec.  20G2.  If  a  mate  or  seaman  dies  during  the  voyage,  his  personal  repre- 
sentatives are  entitled  to  his  wages  to  the  time  of  his  death,  if  he  would  have 
been  entitled  to  them  had  he  lived  to  the  end  of  the  voyage. 

2063.  Theft,  dc,  forfeits  wages. 

Sec.  2003.  Desertion  of  the  ship  without  cause,  or  a  justifiable  discharge  by 
the  master  during  the  voyage  for  misconduct,  or  a  theft  of  any  part  of  the  cargo 
or  api)urtenances  of  the  ship,  or  a  willful  injury  thereto  or  to  the  ship,  forfeits 
all  wages  due  for  the  voyage  to  a  mate  or  seaman  thus  in  fault, 

2064.  Seaman  cannot  ship  goods. 

Sec.  20G4.  A  mate  or  seaman  may  not,  under  any  pretext,  sliip  goods  on  his 
own  account  without  permission  from  the  master. 

2065.  Embezzlement  by  mate  or  seaman. 

Section  20G5  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  247;  took 
effect  July  1,  1874. 

2066.  Laio  governing  seamen. 

Sec  20GG.  The  shipment  of  officers  and  seamen,  and  their  rights  and  duties, 
are  further  regulated  by  acts  of  congress. 

ARTICLE  VI. 

ship's   managers. 
2070.   Manager,  what. 

Sec.  2070.  The  general  agent  for  the  owners,  in  respect  to  the  care  of  a  ship 
and  freight,  is  called  the  manager.  If  he  is  a  part  owner,  he  is  also  called  the 
managing  owner. 

355 


(§  2071-2079  OBLIGATIONS.  Pnr.  HI,  Part  VI, 

"  The  phrase  '  manager*  takes  the  place  of  appointed,  like  other  agents,  by  written  instm* 

•hnsband.'     The  term  'ship's  husband.' here-  ment  or  orally:   I   i'ars.  Mar.   Law,  c.  4,  sec. 

tofore  used   in   the   books,   is   discarded.     He  6,  p.  97.     In  our  statutes  of  registration,  'hus- 

(niay  be  and)  is  usually,  but  not  necessarily,  a  band'  is  called  the  managing  owner:  Id.  99:" 

part  owner,  and  is  the  general   agent  of   the  Commissioners'  note, 
owners  in  respect  to  the  ship,  and  may  be 

2071.  Duties  of  managers. 

Sec.  2071.  Unless  otherwise  directed,  it  is  fhe  duty  of  tlie  manager  of  a  ship 
to  provide  for  the  complete  seaworthiness  of  a  ship;  to  take  care  of  it  in  port; 
to  see  that  it  is  provided  with*necessary  papers,  with  a  proper  master,  mate,  and 
crew,  and  supplies  of  provisions  and  stores. 

2072.  Compensation. 

Sec  2072.  A  managing  owner  is  presumed  to  have  no  right  to  compensation 
for  his  own  services. 

CHAPTER  III. 
SERVICE  WITHOUT  EMPLOYMENT. 

2078.  Vohintanj  interference  with  jifoperti/. 

Sec.  2078.  One  who  ofSciously,  and  without  the  consent  of  the  real  or  appar- 
ent owner  of  a  thing,  takes  it  into  his  possession  for  the  purpose  of  rendering 
a  service  about  it,  must  complete  such  service,  and  use  ordinary  care,  diligence, 
and  reasonable  skill  about  the  same.  He  is  not  entitled  to  any  compensation 
for  his  service  or  expenses,  except  that  he  may  deduct  actual  and  necessai'y 
expenses  incurred  by  him  about  such  service  from  any  profits  which  his  service 
has  caused  the  thing  to  acquire  for  its  owner,  and  must  account  to  the  owner 
for  the  residue. 

Employment  -without  reward:  See  sees.  1975  et  seq. 
Gratuitoixa  carriers:  Sec.  20S9. 

2079.  Salvage. 

Sec.  2079.  Any  person,  other  than  the  master,  mate,  or  seaman  thereof, 
■who  rescues  a  ship,  her  appurtenances,  or  cargo,  from  danger,  is  entitled  to  a 
reasonable  compensation  therefor,  to  be  paid  out  of  the  property  saved.  He 
has  a  lien  for  such  claim,  which  is  regulated  by  the  title  on  liens;  but  no  claim 
for  salvage,  as  such,  can  accrue  against  any  vessel,  or  her  freight  or  cai'go,  in 
favor  of  the  owners,  officers,  or  crew  of  another  vessel  belonging  to  the  same 
owners;  but  the  actual  cost  at  the  time  of  the  services  rendered  by  one  such 
vessel  to  another,  when  in  distress,  are  payable  through  a  general-average  con- 
tribution on  the  property  saved.  [Amendment,  approved  March  30, 1874;  Amend- 
ments 1873-4,  247;  took  eject  Jahj  1,  1874.] 

Salvage. — The   amendment   consists   of  all  the  rights  of  shippers  by  steam-vessels,  where 

after  "by  the  title  on  liens."     It  was  adoj)ted  tlic  \'oss(;ls  become  disabled  by  breaking  tlieir 

at  the  suggestion  of  the  code  examiners,  who  machinery,  and  are  towed  into  port  by  other 

say:  "The  object  of  tlie  amendment  is  to  deliue  stuumcrs  belonging  to  the  same  owners." 

356 


TiTLi  VII,  Chap.  L]  CARRIAGE  IN  GENERAL.  §§  2085-2090 

TITLE  VII. 

CAERIAGE. 

Chapter  I.     Cauriage  in  General , , 20S5 

II.     Carruge  of  Persons 209G 

til.     Carriage  of  Property 2110 

rV.     Carriage  of  Messages 21G1 

V.     Common  Carriers .^.^..^ 21G8 

CHAPTER  I. 

CARRIAGE  IN  GENERAL. 
2C85.    Contract  of  carriage. 

Sec.  2085.  The  contract  of  carriage  is  a  contract  for  tlie  conveyance  of  prop- 
erty, j^ersoiis,  or  messages  from  one  place  to  another. 

Common  carriers  defined:  Sec.  2168.    For        Carriage  of  persons:  Sees.  2096  et  seq. 
exaiiiplcof  couiinon  carriers,  see  the  uote  to  that        C-irria^e  of   messages:  Sees.  2iGl,  2162, 
Beef  ion.  and  2207  et  seq. 

Carriage  of  property:  Sees.  2110  et  seq. 

2086.  Different  kinds  of  carriers. 
Sec  208G.     Carriage'is  either: 

1.  Inland;  or, 

2.  IMarine. 

Seo  references  in  note  to  next  section.  land  carriers.     So  also  Angell  on  the  Law  of 

"The  second  class,  'marine  carriers,' as  Carriers,  c.  11,  sees.  52.5  et  seq.,  p.  012.     Tliia 

tbcy  are  called,  are  treated  of  in  Revl.  on  Car-  is  tlie  first  general  classitieation   for  the   pur- 

riers  and  other  Bailments,  c.  27,  sec.   328  et  poses  of  this  title:"  Conunissiouers' note, 
eeq.,  as  'carriers  by  water;'  all  others  are  in- 

2087.  Marine  and  inland  carriers,  what. 

Sec.  2087.     Carriers  upon  the  ocean  and  upon  arms  of  the  sea  are  marine 

carriers.     All  others  are  inhind  carriers. 

Inland  carriers  of  property,  rights  cmd  duties  of:  See  sees.  2194  et  seq. 
Marine  earners,  rights  and  duties  of:  See  sees.  2148,  2197  et  seq. 

£038.    Carriers  hj  sea. 

Sec.  lOSS.     Rights  and  duties  peculiar  to  carriers  by  sea  are  defined  by  acta 

of  congress. 

"Seeaetsof  congress  relative  to  carrying  pas-  See  also  sees.  2197,  2198. 

eengers:  Acts  of  ISIO,  c.  40;  IS'S,  c.  191;  1813,  Rights  and  duties  of  carriers  generally: 

c.  'j4;  1S47,  c.  10;  1848,  c.  41 ;  1851,  c.  43;  1870-  Sees.  2180  et  serj.,  2194  et  seq. 

1,  c.  ICO;"  References  by  code  commissioners.  General  avera^ie:  Sees.  2148  et  seq. 

2089.  Ohlicjaiions  of  rjratidlous  carriers. 

Sec.  2089.  Carriers  without  reward  are  subject  to  the  same  rules  as  employees 
without  reward,  except  so  far  as  is  otherwise  provided  by  this  title. 

Employees  vrithout  reward:  See  sees.  Service  without  employment:  See  sees. 
1975  et  beq.  2078  et  seq. 

2090.  0!)ligatior}S  of  gratuitous  can-ier  who  has  begun  to  carry. 

Sec.  2090.  A  earner  without  reward,  who  has  begun  to  perform  his  under- 
taking, must  complete  it  in  like  manner  as  if  he  had  received  a  reward,  unless 
he  restores  the  person  or  thing  carried  to  as  favorable  a  jiosition  as  before  he 
commenced  the  carriage. 

Co!U[i;ire  wilh  sections  1975,  197G.  hand,  there  would  be  no  injustice  in  a  refusal 

"Thiii  is  intended  to  include  messages  to  allow  him  to  start  ui)on  the  journey:  Sue 
as  well  as  |>ro|)erty.  It  would  be  manifestly  also  note  to  prc-ceding  section;  and  lleil.  on 
iinrciisonahle  to  allow  a  railway  compaiiy  to  C'airiers,  etc.,  pt.  l,e.  2,  sees.  1 1 -17,  inclusive, 
t^jcct  a  ]  asNcnger  upon  a  free  ticket  when  he  and  cases  cited  iu  notes:''  Code  commissiout-rs. 
had  made  only  half  his  journey.     On  the  oilier 

357 


§§  2096-2104  OBLIGATIONS.  [Div.  Ill,  Pabx  IV, 

CHAPTER    II. 

CARRIAGE  OF  PERSONS. 

Article  I.     (tRATuitous  Carriage ,..,...* 2096 

II.     Caukiaoe  for  Reward ....-...-.., 2100 

ARTICLE  I. 

GRATUITOUS  CAERIAQE  OF  PERSONS 

2093.    Drrjree  of  care  required. 

Skc,  20!)0.  a  carrier  of  persons  -without  reward  must  use  ordinary  care  and 
dilig-ence  for  their  safe  carriage. 

Duty  of  gratuitous  employee,  generally:  See  sees.  1975,  1976. 
Carrisrs  of  persons,  generally:  See  sees.  2 ISO  et  seq. 
Liability  of  carriers  of  persons,  generally:  Note  to  .sec.  2186. 

ARTICLE  II. 

CARRIAGE   FOR   REWARD. 

2100.  General  duties  of  carrier. 

Sec.  2100.  A  carrier  of  persons  for  reward  must  use  the  utmost  care  and 
diligence  for  their  safe  carriage,  must  provide  everything  necessary  for  that 
purpose,  and  must  exercise  to  that  end  a  reasonable  degree  of  skill. 

Duties    of    carriers  of  passengers:    See  1,3  C:il.  509;  Jamison  v.  S.  J.  d-  S.  C.  7?.  R., 

Thoinpson  on  Can  ieis  of  Passengers,  124;  and  a  55  Iil.  593;    Whealon  v.  N.  B.  M.  H.  R.,  3G  Id. 

note  in  43  Am.  Dee.  3.55,  wliero  the  rule  that  590. 

caniersiif  passengers  for  hire  are  bound  to  ob-  Happening  of  injury  as  prima  facie  evi- 

Berve  the  utmost  care  and  caution,  and  tliat  deuce    of  negligence. — As   between   a   j  aa- 

they  are  responsible  for  injnrJ'og  received  by  senger  and  the  carrier,  the  proof  of  the  oecur- 

jia^seiiLrers  that  could  have  been  avoided  by  rence  of  an  accident,  by  wliieh  the  passenger 

the  exercise  of  extraordinary  vigiJance,  aided  sustains  injury  without  liis  fault,  ia /'/i/zinyarift 

by  the  highest  ski.l,  is  suported    by  abuntlant  proof  of  negligence  on  the  part  of  the  carrier: 

autliority.     That  note  alsocontains  discussions  Vcimuini^  v.  Contra  Cos/a  S.  N.  Co.,  4-i  Cal.  72; 

and    citations   upon    the    effect  of    d'  feet   in  Foirrhild  v.  Cal.  S/a(/e  Co.,  13  Id.  599. 

Vehicles  and  other  appliances,  and  upon  t!ie  Injuries  caused  by  acts  of  servant:  See 

liabi'ity  for  negligent  management  of  vehicles,  note  to  Ware  v.  liarataria  <£;  L.  Canal  Co.,  35 

The  general  rule  as  framed  in  the  above  sec-  Am.  Dec.  201. 
tion  is  followed  in  Fairchild  v.  Cal.  SUuje  Co., 

2101.  Vehicles. 

Sec.  2101.     A  carrier  of  persons  for  reward  is  hound  to  provide  vehicles  safe 

and  fit  for  the  pui-poses  to  which  they  are  put,  and  is  not  excused  for  default  in 

this  respect  by  any  degree  of  care. 

Carrier  must  provide  proper  vehicl3s:  3r)2.  As  to  liability  for  latent  defects,  see  the 
See  the  note  to  Ligr.Us  v.  Blllx,  43  Am.  Dec.     same  note:  Thompson  on  Car,  Pas.  215. 

2102.  Not  to  overload  his  vehicle. 

Skc.  2102.     A  carrier  of  persons  for  reward  must  not  overcrowd  or  overload 
his  vehicle. 
Railroad  corporations  to  furnish  accommodations:  Sec.  483. 

2103.  Trealmod  of  pwsengers. 

Sec.  2103.  A  carrier  of  persons  for  reward  must  give  to  passengers  all  such 
accommodations  as  are  usual  and  reasonable,  and  must  treat  them  with  civility, 
and  give  them  a  reasonable  degree  of  attention. 

2104.  Rate  of  apeed  a) id  delays. 

Sec.  2104.  A  carrier  of  persons  for  reward  must  travel  at  a  reasonable  rate 
of  speed,  and  without  any  unreasonable  delay,  or  deviation  from  his  proper 
route. 

.358 


Title  VH,  Cuap.  III.]  CAnRIAGE  OF  PROPERTY.  S§  2110-2117 

CHAPTER  III. 

CARRIAGE  OF  PROPERTY. 

Aeticle  I.    General  Definitions ►,  2110 

It.     Obligations  of  tue  Cakrier 2114 

III.  Bill  OF  Lading 2126 

IV.  FliKIOUTAGE ^ 213(» 

V.    Gjeneral  Average ..._...-.....,.* ».......»  2143 

ARTICLE  I. 

GENERAL   DEFINITIONa, 

2110.    Freirjlil,  consignor,  etc.,  what. 

Sec.  2110,  Property  caniecl  is  called  fveiglit;  the  reward,  if  any,  to  be  paid 
for  its  carriage  is  called  freightage;  the  person  who  delivers  the  freight  to  the 
carrier  is  called  the  consignor;  and  the  person  to  whom  it  is  to  be  delivered  ia 
called  the  consignee. 

"This  section  pertains  to  definitions  rreightags,  -wliaa  to  be  paid:  Soe  sees, 
simply. — The  use  of  the  words  'freight'  and     21:10  et  seij. 

*  freightaj;e '  are  here  proper,  whereas  such  has         Bill  of  lading- — For  defiuition  of  bill  of  lad- 
not  been  the  case.     I^ee  note  to  sec.  26G1,  post:"     ing,  see  Heo.  2l^i>. 
Statement  by  code  commissioners. 

ARTICLE  II. 

OBLIGATIONS    OF    THE   CAJKRIEK. 

2114.  Care  and  diligence  required  of  carriers. 

Sec.  2114.  A  carrier  of  property  for  reward  must  use  at  least  ordinary  care 
and  diligence  in  the  performance  of  all  his  duties.  A  canier  without  reward 
must  use  at  least  slight  care  and  diligence. 

Care  and  diligence  required  of  carriers  of  the  danger.  Illustrations  of  a  carrier  being 
of  property. —  "The  care  wliicli  bailees  are  re-  held  liable  for  damage  to  pro;>ijri\v  will  be 
quiretl  to  bestow  on  Ijaihneuts  is  fully  discussed  found  in  IJohannan  v.  [larnmond,  42  Id.  227; 
in  notes  to  tiths  .S,  4,  and  5  of  this  part,  aiiti',  MeudelsohiL  v.  Anahnm  LvjliferiJo.,  49  Id.  G.")?, 
and  tie  mere  custo<]y  creates  a  bailment  in  the  where  it  was  said  that  a  carrier  would  by  liable 
carrier  which  re(iuire3  of  him  the  same  care  in  punitive  damages  for  a  wilU'ul  bieach  of  his 
required  of  a  bailee  for  compensation:  Redfiuld  duty:  Aijiieiu  v.  Stcaiwr  Contra  C'ost'i,  27  Id. 
on  Carriers,  etc.,  sec.  3,  c.  1,  pt.  1,  and  cases  425;  Jo.ie.'<  v.  ]Yd!-<,  Fani')  A  Co.,  23  LI.  259; 
cited  in  note  1 ;  Cairns  v.  liobius,  8  Mee.  &  W.  31a}/  v.  llannoii,  5  Id.  o()0;  Polk  v.  Co(]hi,  i)  Id. 
258:"  Commissioners' note.  5G;  Uri§ll-h  v.  Cave,  22  Id,    534.     These  last 

A  brief  and  accurate  statement  of  the  dili-  three  decisions  concern  the  liability  of  ferry- 
gence  required  of  a  earlier  of  property  for  hire     men. 

ia  thus  made  in  Gerke  v.  Cn^ij'ornia  Steam  Carrier  of  property  witliout  rew.Trd  la 
Naviijai'ion  Co.,  9  Cal.  251:  lie  is  bound  to  liable  only  as  a  ])aiko  without  hire:  Fay  v. 
temper  his  care  according  to  the  circumstances    Steamer  New  WorlJ,  1  Cal.  34S. 

2115.  Carrier  to  obey  directions. 

Sec  2115.  A  carrier  must  comply  with  the  directions  of  the  consignor  or 
consignee  to  the  same  extent  that  an  employee  is  bound  to  comply  with  those 
of  his  employer. 

Employee's  duty  to  obey  employer:  Sec,  1981. 

2116.  Conflict  of  orders. 

Sec.  2110.     AVhen  the  directions  of  a  consignor  and  consignee  are  conflicting^, 
the  carrier  must  comply  with  those  of  the  consignor  in  respect  to  all  matter*, 
except  tbe  delivery  of  the  freight,  as  to  which  he  must  comply  with  the  direc- 
tions of  the  consignee,  unless  the  consignor  has  .specially  forbidden  the  carrier; 
to  receive  orders  from  the  consignee  inconsistent  with  his  own. 

2117.  Stowage',  deviation,  etc. 

Sec  2117.  A  marine  carrier  must  not  stow  freight  upon  deck  during  tha^ 
voyage,  except  where  it  is  usual  to  do  so,  nor  make  any  improper  deviation  from, 

359 


§§2118-2122  OBLIGATIONSi  tPiv.  Ill,  Part  IV, 

or  delay  in  the  voyage,  nor  do  any  other  unnecessary  d.ct  which  would  avoid  an 
insurance  in  the  usual  form  upon  the  freight. 

2118.  Delivery  offrevjhl. 

Skc.  2118.     A  carrier  of  property  must  deliver  it  to  the  consignee,  at  the  place 

to  which  it  is  addressed,  in  the  manner  usual  at  that  place. 

Duty  of  carrier  -witli  respect  to  delivery.  Governor  v.   Wilhevi,   50  Id.    100,   anil   tiote. 

Where  and  to  wliom  must  bo  male:  See  next  Deposit  in  a  warehouse:  See  sec.  '2120.     If  the 

section;  O'ihson  v.  Ctdl'cr,  SI  Am.  Dec.  297,  and  carrier    delivers    the    goods  to  a  t!iird  person 

note.      Wliat  is  a   sufficient  delivery:  FLsk   v.  not  the  owner,  lie  do^s  so  at  bis  peiil:     Ailama 

A'ewtou,  4.i   Id.    019,  and  note;  Farmers'  etc.  v.  Blanke:isi('ui,  2  Cal.  41.").     ]5ut  in  an  action 

Bank   V.   C/ianiplain   T.   Co.,  42    Id.  491,  and  therefor  tlic  carrier  may  siiow  tlic  third  jierson 

note.     Duty    to   notify    consignee   of    arrival  to  be  lawfully  entitled  to  the  goods:  liayden, 

of  goods:   S.   0. ,  5'J  id.   84,   and  note.     Usage  v.  Davis,  Old.  573. 
as  affecting  carrier's  duty  as  to  delivery:  Id.; 

2119.  Place  of  delivery. 

Sec.  2119.  If  there  is  no  usage  to  the  contrary  at  the  place  of  deliver}',  freight 
must  be  delivered  as  follows: 

1.  If  carried  upon  a  railway  owned  or  managed  by  the  carrier,  it  may  be 
delivered  at  the  station  nearest  to  the  place  to  which  it  is  addressed; 

2.  If  carried  by  sea  from  a  foreign  country,  it  may  be  delivered  at  the  "wharf 
where  the  ship  moors,  within  a  reasonable  distance  from  the  place  of  address; 
or,  if  there  is  no  wharf,  on  board  a  lighter  alongside  the  ship;  or. 

3.  In  other  cases  it  must  be  delivered  to  the  consignee  or  his  agent,  persson- 

ally,  if  either  can,  with  reasonable  diligence,  be  found. 

See  references  in  note  to  preceding  section,  the  care  of  his  agents,  he  having  agents  there 

It  i.3  not  a  good  delivery,  in  the  absence  of  for  the  purpose  of  receiviii',f  tliom:  IJresbach  v. 

a  special  contract,  merely  to  place  tliem  ou  the  Cal.  Par.,  R.  R,  Co.,  57  Cal    402. 

bank  of  a  river  at  the  point  of  destination  in  Dalivery  to  connaotlug  carrier:  See  seu, 

the  absence  of  the  consignee,  and  not  under  2201. 

2120.  Obligations  of  car  i-ier  when  freight  not  delivered. 

Sec  2120.  If,  for  any  reason,  a  carrier  does  not  deliver  freight  to  the  con- 
signee or  his  agent  personally,  he  must  give  notice  to  the  consignee  of  ita 
arrival,  and  keep  the  same  in  safety,  upon  his  responsibility  as  a  warehouseman, 
until  the  consignee  has  had  a  reasonable  time  to  remove  it.  If  the  place  of 
residence  or  business  of  the  consignee  be  unknown  to  the  carrier,  he  ma}'  give 
the  notice  by  letter  dropped  in  the  nearest  post-office.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  247;  look  effect  July  1,  1874.  J 

Carrier's  liability  as  ■warehouseman —  as  a  warehouseman  commences;  he  is  held  to 
For  a  discussion  of  the  liability  of  a  common  ordinary  care  and  diligence  only  in  the  keeping 
carrier  as  warehouseman,  see  the  note  to  and  delivery  of  the  goods:  Jictionv.  Sac  V. 
Schtiiidl  v.  IJhod,  24  Am.  Dec.  143.  From  the  R.  R.  Co.,  23  Cal.  206.  So  Ilirshjldd  v.  C.  P. 
time  that  a  carrier  places  the  goods  in  his  ware-  R.  R.  Co.,  5G  Id.  4S4,  the  iihiiutiu  having  no- 
house  at  tlie  point  of  destination  his  liability  tice  of  the  arrival  of  the  goods. 

2121.  Carrier,  how  exonerated  from  liability. 

Sec.  2121.  If  a  consignee  does  not  accept  and  remove  freight  within  a  rea- 
sonable time  after  the  carrier  has  fulfilled  his  obligation  to  deliver,  or  duly 
offered  to  fulfill  the  same,  the  carrier  may  exonerate  himself  from  further 
liability  by  placing  the  freight  in  a  suitable  warehouse,  on  storage,  on  account 
;of  the  consignee,  and  giving  notice  thereof  to  hijn.  [Ame)idineitt,  approved 
March  30,  1874;  Amendments  1873-4,  248;  took  effect  July  1,  1874. J 

2122.  Place  freight  in  warehouse. 

Section  2122  was  repealed  by  act  approved  March  30,  1874;  Ameadiuents  1S73-4,  248;  took 
effect  July  1,  1874. 

360 


Title  VII.  Chap.  III.] 


CARRIAGE  OF  PROPERTY. 


2I2&-2I29 


ARTICLE  III. 

BILL     OF     LADING. 

2126.    JliJ!  of  lading,  what. 

Sfc.  212G.     A  bill  of  ladinp^  is  an  instrument  in  writing',  signed  by  a  carrier 

or  bis  agent,  describing  the  freight  so  as  to  identify  it,  stating  the  name  of  the 

consignor,  the  terms  of  the  contract  for  carriage,  and  agreeing  or  directing  that 

the  freight  be  delivered  to  the  order  or  assigns  of  a  specified  person  at  a  specified 

place. 

Bill  of  lading. — See  a  very  careful  considera- 
tion of  bills  of  lading,  and  t!ie  rights  which 
their  transfer  gives  the  transferee,  in  Doihje  v. 
il'-i/cr,  GI  Cal.  403.  In  a  note  to  ChmnUer  v. 
Sprni/iip,  08  Am.  Dec.  407  et  serj.,  several  im- 
portant questions  connected  vrith  this  general 
Buljjcct  ;.re  discussed;  for  example,  its  general 
character,   its  elTect  as  evidence,  and  bow  it 


may  be  controlled,  the  right  to  show  tliat  no 
goods  were  shipped,  or  their  quantity,  or  time 
ami  place  of  shipment,  its  weight  as  evidence 
of  title,  its  indorsement  and  transfer,  and  the 
effect  of  particular  provisions  therein. 

Carrier  s  reoeipt  and  bill  of  lading  held  to 
be  the  same:  Dodge  v.  Meyer,  aupra. 


2127.    Bill  of  lading  negotiable. 

Sec.  2127.  All  the  title  to  the  freight  which  the  first  holder  of  a  bill  of  lad- 
ing had  when  he  received  it  passes  to  every  subsequent  indorsee  thereof  in  good 
faith  and  for  value,  in  the  ordinary  course  of  business,  with  like  effect  and  in 
like  manner  as  in  the  case  of  a  bill  of  exchange. 

E:ll3  of  I:adin2  negotiable. — "  This  section  ing  only  transfers  the  title  to  the  goods,  and  not 
Bettles  the  question  of  the  negotiability  of  a     the  right  of  action  in  the  name  of  the  sliipper 

for  injury  during  voyage:  Story  on  Contracts, 


bill  of  lading,  which  was  not  only  doubted  in 
L'nvkcr  V.  Ai/pffiford,  1  Cal.  75,  ))ut  there  posi- 
tively held  not  to  be  negotiable,  and  t!iat  if 
the  holder  of  a  bill  of  lading  can  recover  at  all, 
It  must  lie  on  tlie  ground  that  lie  has  some 
interest  in  it,  and  not  on  the  contract  itself, 
inde  endent  of  tiie  question  of  tlie  ownership 
of  tlie  goods,  which  is  in  accordance  with  the 
text  wliere  the  words  'good  faitli '  and  'for 
value'  arc  used.  The  case  in  1  Cal.,  supra, 
ably  discusses  t'.ie  entire  question,  referring  to 
Smith'.s  Merc.  Lrxw,  2S7;  Thomj)son  v.  Doicn- 
inr/,  14  Mce.  &  W.  403;  2  Kent's  Com.  547;  1 
Smith's  Lead.  Cas.  G49,  Am.  notes.  Aud 
though  it  decides  the  bill  of  lading  to  be  non- 
negoliab'.c,  it  hohls  tV.at  the  assignee  of  the  bill, 


sec.  810,  and  note  3.  \\'hatevcr  doubts  existed 
on  this  subject  are  settled  by  the  text:  "  Com- 
missioners' note. 

The  negotiability  of  bills  of  lading  in  this 
state  is  recognized  not  only  by  the  above  sec- 
tion, but  by  tlie  decisions  of  t'le  supreme  court: 
Knvhall  v.  C.  P.  R.  /?.,  51  Cal.  345,  where  the 
indorsee  of  the  bill  of  lading  from  the  vendee 
rt*ithout  no*^ice  of  tiie  latter's  insohency,  or  of 
a  notice  of  stoppage  of  the  goods  ///  tranvtu, 
was  given  the  goods  in  preference  to  the  vendor. 
And  see  Dodfje  v.  Meyer,  01  Id.  40.5.  containing 
an  exhustive  consideration  of  the  lights  uf  the 
parties  to  a  bill  of  ladinsr. 

Soe  this  feature  of  bills  of  lading  discussed 


properly  indor.sed,    vests  the  property  prima  in  thu  vote  to  Chandler  v.  Spra'jae,dS  Am.  Dec. 

facie  in  t'.ie  indorsee:  Redfield  on  Carriers,  sec.  437  et  seq. 

249.     '  But  as  a  Ijill  of  lading  is  qaa>fi  a  nego-  In  Le  Cwheux  w  Cutter,  G  Cal.  514,  a  party 

ti.xl.le  instrument,  if  negotiated,  it  is  binding  about  to  fail  assigned  a  i)ill  of  lading  in  trust 

upon  the  shi;i-o-\ner:'   Howard  v.    Twker,    1  to  devote  the  proceeds  to  the  payment  of  the 


Barn.  &  A  lol.  5 1 '2;  Cox  v.  Pcterxon,  30  Ala. 
60S;  licdfield  on  Carriers,  sec.  260,  is  eontirma- 
tory  of  the  case  .supra,  1  Cal.,  and  tliis  on  the 
auLhority  of  .Shaw,  C.  J.,  Mass.,  in  the  case  of 
Shall'  V.  Ca  d.er,  12  Gray,  4SS,  wdicre  the  cases 
are  carefully  rev  ewed,  and  the  proposition  sus- 
tained that  the  indorsement  of  the  bill  of  lad- 


vendor;  the  assignment  was  good  as  against 
att.iching  creditors. 

Jus  disoonoadi:  See  Dodije  v.  Meyer,  61 
Cal.  405.  and  ItcynohU  v.  Scott,  3  We^t  Coast 
Rep.  201,  for  discussion  of  tlic  ju<  dix/ioneiidi 
as  alTccted  by  dispositioQ  made  of  the  bill  of 
lading. 


2128,    Same. 

Sec.  2128.  "When  a  bill  of  lading  is  made  to  "bearer,"  or  in  equivalent 
terms,  a  siniple  transfer  thereof,  by  delivery,  conveys  the  same  title  as  an 
indorsement. 


A  b;!l  of  lading  represents  tho  property 

for  wLioli  it  h:is  Ij.eii  given,  aud  by  iis'leliveiy 
w'i:.hout  indorsement  the  property  i:i  the  gooils 
may  be  transferred  wdiere  such  is  the  intent: 
Dodije  v.    Meyer,   Gl    Cal.   405,  41G;    and  see 


GUdden  v.  Lnca%  7  Id.  23;  Tison  v.  Howard, 
57  C a.  410;  Mirh!ijan  Cnilnd  /.'.  A',  v.  I'hWipa, 
03  III.  19 );  Fir.ft  Xational  Hank  v.  IMuborn, 
115  Mass.  219;  City  Uank\.  Home  etc.  li.  H. 
Co.,  44  N.  Y.  136. 


2123.    Efi'ct  of  bill  of  lading  on  right. "i,  He,  of  i-arrier. 

Skc.  2121).     A  bill  of  lading  does  not  alter  the  rights  or  obligations  of  the 
carrier,  as  defined  in  this  chapter,  unless  it  is  plainly  inconsistent  therewith. 

301 


§§  2130-2138  OBLIGATIONS.  [Div.  Ill,  Part  IV, 

Common  carrier  may  limit  his  common-  and  sec.  2175.  The  restrictions  in  a  receipt 
law  liability  [>y  stipulations  in  tlie  hill  of  lad-  upon  his  common-law  liability  given  by  a  car- 
ing, but  not  from  liis  liabilitj'  for  negligence  or  rier  are  to  lie  construed  most  strongly  against 
fraud:  St-e  note  to  Chandler  v.  Spru'jne,  .33  An),  liini:  Hooper  v.  Wells,  Farrjo  A  (J<k,  27  Cal.  1 1 ; 
Dec.  421;  and  to  Cole  v.  Goodwin,  32  Id.  497;  Pereira  v.  C.  P.  B.  Ji.,  4  West  Coast  Hep.  372. 

2130.  DlIIh  of  lading  to  be  given  to  consignor. 

Sec.  21.')0.     A  carrier  must  subscribe  and  deliver  to  the  consignor,  on  demand, 

any  reasonable  number  of  bills  of  lading,  of  the  same  tenor,  expressing  truly 

the  original  contract  for  carriage;  and  if  he  refuses  to  do  so,  the  consignor  may 

take  the  freight  from  him,  and  recover  from  him,  besides,  all  damage  thereby 

occasioned. 

Bill    of   lading    in    triplicate. — "Bills   of  the     carrier    is     concerned:"     Commissioners' 

lading  are    usually   signed    in   sets   of    three,  note. 

One  is  held  by  the  master,  one  retained  by  The  three  writings  constitute  but  one  con- 

the  consignor,  and    one   sent   either  with  the  tract:  Mi'i/erstrin  v.  Barber,  L.  R.,  2  C.  P.,  38; 

goods   or    ly   a   separate   conveyance    to    the  and  if  they  differ,  that  which  is  retained  by  the 

consignee;  Book  1,  c.  7,  pp.  140,  141,  1   Pars,  master  of  the  vessel,  the  "shi|)'s  bill,"  as  ibis 

Mar.    hiiw.     The   number   tixed    by   the   text  sometimes  termed,  must  yield  to  tlio'^e  deliv- 

and   the   penalty  for  non-compliance   is   just,  ered  to  the  shipper:   7Vie  Thamex,  14  Wall.  98; 

and  is  of  no  consequence  so  far  as  labor  to  Ontario  Bank  v.  JIanlon,  23  Ilun,  283. 

2131.  Carrier  exonerated  by  delivery  according  to  bill  ofladiyxg. 

Sec.  2131.  A  carrier  is  exonerated  from  liability  for  freight  by  delivery 
thereof,  in  good  faith,  to  any  holder  of  a  bill  of  lading  therefor,  properly 
indorsed,  or  made  in  favor  of  the  bearer. 

Rights  of  holder  of  bill  to  receive  goods:  See  the  notes  to  sec.  2127;  see  also  sec.  2123. 

2132.  Carrier  may  demand  surrender  of  bill  of  lading  before  delivery. 

Sec  2132.  "When  a  carrier  has  given  a  bill  of  lading,  or  other  instrument 
substantially  equivalent  thereto,  he  may  require  its  surrender,  or  a  reasonable 
indemnity  against  claims  thereon,  before  delivering  the  freight. 

AKTICLE  IV. 

FREIGHTAGE. 

2133.  Wheji  freightage  is  to  be  paid. 

Sec  213G.     A  carrier  may  require  his  freightage  to  be  paid  upon  his  receiving 

the  freight;  but  if  he  does  not  demand  it  then,  he  cannot  until  ho  is  ready  to 

deliver  the  freight  to  the  consignee. 

Freightago  d -fined:  Sec.  2110.  R.  I.  572.     If  not  paid  in  advance,  payment 

Prei^Iit  dofmcd:  Sec.  2110.  and    delivery   are   concurrent    acfs,    and    the 

I'rei^litaje,  wiieu  to  be  paid.— Although  consignee    is    not    entitled    to   delivery    until 

freight  is  not  earned   until  carriage  and  dcliv-  jiayment  made   or   tendered:    Fro/hini/hrcm   v. 

ery  of  tlje  goods,  yet  the  carrier  may  demand  J''iikiji!i,  1  Cal.  42;  Clark  v.    ^/asf>r'^,  I    P>.)sw. 

payment  in  a<lvance,  subject  to  a  liability  to  177:    Bankhi  v.    Memphin   etc.    Co.,   9  Ilcisk. 

refund  it  if  not  earned:  Nordemcyery.  Loi'-vhcr,  51)4;  Lanf/ivort/iij  v.  iV.  Y.  Ji.  It.  Co.,  2  E.  IX. 

1  Hilt.  493;  Kiiviht  v.  Providence  R.  R.  Co.,  13  Smith,  195. 

2137.    Consignor,  lohen  liable  for  freigldage. 

Sec  2137.  The  consignor  of  freight  is  presumed  to  be  liable  for  the  freight- 
age; but  if  the  contract  between  him  and  the  carrier  provides  that  the  consignee 
shall  pay  it,  and  the  carrier  allows  the  consignee  to  take  the  freight,  he  cannot 
afterwards  recover  the  freightage  from  the  consignox*. 

"Who    liable    for    freightage. — "Provides     properly  permissible:  Angell  on  Carriers,  sees, 
simply  that  a  special  agreement  may  relieve     393,  SDii'"  Coiumissioners' note, 
from  the  effects  of  the  ordinary  rule,  which  is 

2133.    Consignee,  when  liable. 

Sec  2138.  The  consignee  of  freight  is  liable  for  the  freightage  if  he  accepts 
the  freight  with  notice  of  the  intention  of  the  consignor  that  he  shouLl  pay  it, 

3(J2 


144.  Carriers'  Lien  for  Freightage.  .\  carrier  has  a 
lili  for  freightage  and  for  services  [renderei;!  at  request  of 
oper  or  consignee  in  and  about  tlie  transportation,  care 
preservation  of  tlie  property,  and  he  also  lias  a  lien  for 
ley  advanced  at  request  of  shipper  or  consignee  to  dis- 
s  a  prior  lien.  His  rights  to  such  lien  are]  regulated 
the  title  on  liens.  (In  effect  60  days  from  and  after  April 
190'J.      Stats.   1909,   Chap.   663.)  Civ.    Code,    1909. 


Title  VII,  Chai-.  III.]  CARRIAGE  OF  TROrERTY.  §§  2139-2148 

2139.  Natural  increase  of  fre'i/jhl. 

Sec.  2139.     Ko  frciglitage  can  be  charged  upon  the  natural  increase  of  freight. 

2140.  Apportionment  by  contract. 

Si:c.  2140.  If  freightage  is  apportioned  by  a  bill  of  lading  or  other  contract 
made  between  a  consignor  and  carrier,  the  carrier  is  entitled  to  j)ajineut,  accord- 
ing to  the  apportionment,  for  so  rauch  as  he  delivers. 

2141.  Same. 

Sec.  2141.  If  a  part  of  the  frei^dit  is  accepted  by  a  consignee,  without  a 
specific  objection  that  the  I'cst  is  not  deli%'ered,  the  freightage  must  be  appor- 
tioned and  paid  as  to  that  part,  though  not  apportioned  in  the  original  contract. 

2142.  Apportionment  accordincj  to  distance. 

Sec.  2142.  If  a  consignee  voluntarily  receives  freight  at  a  place  short  of  the 
one  appointed  for  delivery,  the  carrier  is  entitled  to  a  just  proportion  of  the 
freightage,  according  to  distance.  If  the  carrier,  being  ready  and  willing, 
offers  to  coujplcte  (he  transit,  he  is  entitled  to  the  full  freightage.  If  he  does 
not  thus  offer  completion,  and  the  consignee  I'eceives  the  freight  only  from 
necessity,  the  carrier  is  not  entitled  to  any  freightage. 

Freisli'<:ag3  pro  rata  icineris.— If  the  con-  tho  gooiLs  to  the  place  of  destination,  and  the 
Bigneu  voluutar.ly  receives  the  goods  ut  an  iii-  ouii.^r  ilemands  and  i-eceives  them  at  the  iiiter- 
ternieiliate  port,  he  must  pay  fieighta  c  ]>ro  inoiliate  point,  he  must  p.iy  full  frciglitar;e: 
rata  i!ii:f'rii^:  ii'ine  noto  to  Craicford  v.  Widla/n-'f,  H.uue  note.  8o,  if  tho  arrival  or  dolivoiy  of 
GO  Alii.  Dec.  Id3.  lUit  it  is  essential  that  tlie  the  f;oods  is  prevented  by  tlie  act  or  default  of 
receipt  liy  the  consic;nee  be  voluntary:  Id.  On  the  owner  thereof,  the  carrier  is  entitled  to  full 
the  oilier  Lund,  if  the  carrier  offers  to  carry     freighta^^e:  Id. 

2143.  Freigld  carried  farther  than  agreed,  etc. 

Sec.  2143.  If  freight  ia  carried  farther,  or  more  expeditiously,  than  was 
agreed  upon  by  the  parties,  the  carrier  is  not  entitled  to  additional  compensa- 
tion, and  cannot  refuse  to  deliver  it,  on  the  demand  of  the  consignee,  at  the 
place  and  time  of  its  arrival. 

2144.  Carrier' ii  lien  for  freightage. 

Sec  2144.  A  carrier  has  a  lien  for  freightage,  which  is  regulated  by  the  title 
on  liens. 

'•r'oiindation  of  tli9  lisn  is  the  obligation  received   it  were  agents   merely,   and   wiiere 

of  car,  i era  to  receive  all  goads  for  trausporta-  these  agents  exceeded  their  auihoriLy  in  re- 

tioii  when  offered,  and  in  justice  they  are  au-  gard  to  tho  terms  which  they  nu.de  with  the 

thorize  I  to  retain  the  freight  till  the  fieiij;jtage  carriers:  Hayes  v.  CamyhcU.  C.)  C'al.  143.     The 

is  paid:    Angell  on  Car.,  sec.  35G;  Jones   ou  cai-rier  was   put  on  intpury  as  to  the   terms 

Car.  99;  SLory  on  liailm.,  sec.  588;  see  div.  3,  under  which  the  parties  from  whom  tlicy  re- 

pt.  4,  tit.  M),  po-t:'''  Commissioners' note.  ceived  the  wheat  could  contract  for  its  carr. age, 

Liens:  8>.e  sees.  2872,  post,  et  seq.  and   on   the   failure  of  this  Ihm,  the  owners 

Tho  carrier's  iieil  is    lost   by  a  voluntary  of  the  wheat  could  reclaim  it  free  from  charges 

eun  eiulerof  iiosses.s.on  of  ihc  goods:  WiiKjard  w.  of  the  earner,  a  large  pait  of  wlii'h  the  agent 

iiaiiKihij,  'M  Cal.  o4o;  and  see  .sec.  217.'],  in  note,  had  no  audiorily  to  contract  for:  LI. 
Nor  can  the  carrier  l.o.d  wheat  for  his  charges         Lieu  on  passenger's  luggage:  Sec.  2191. 
when  he  knew  that  the  iirni  from  whom  he 

ARTICLE  V. 

GENERAL    AVERAGE. 

2148.   Jettison  and  general  average,  xclwt. 

Sec.  2148.  A  carrier  by  water  may,  when  in  case  of  extreme  peril  it  is  neces- 
sary for  the  safety  of  the  ship  or  cargo,  throw  overboard  or  otherwise  sacrifice 
any  or  all  of  the  cargo  or  ajopurtenaiu'es  of  the  ship.  Throwing  property  over- 
board for  such  purpose  is  called  jettison,  and  the  loss  incurred  tliereby  is  called 
a  geueral-average  loss. 

.SOS 


fi§  2149-2161  OBLIGATIONS,  JTHv.  Ill,  Pabt  IV, 

2149.  Order  nf  jeflb^on. 

Sec.  21'i9.  A  jettison  must  begin  with  tlie  most  bulky  and  least  valuable 
article,  so  far  as  possible. 

General  avsra-re:  See  some  of  the  principles  'V^agea  and  provisions  of  cievr  during 

coiuiucteil  with  tliis  l)raiich  of  the  law  statcil  in  detention,  whether  subjects  of  general  aver- 

tiie  note  to    Walktr  v.  U.  S.  Lis.  Co.,  14  Am.  age:   See  note  to  Jlanse  v.  JV.  O.  Ins.  Co.,  29 

Dee.  G\3.  Am.  Dec.  4G1. 

2150.  />';/  ichom  made. 

Sec.  2150.  A  jettison  can  be  made  only  by  authority  of  the  master  of  a  ship, 
except  in  case  of  his  disability,  or  of  an  overruling  necessity,  when  it  may  be 
made  by  any  other  person. 

2151.  Zo.s-.s,  lioxv  borne. 

Sec.  2151.  The  loss  incurred  by  a  jettison,  when  lawfully  made,  must  be 
borne  in  due  proportion  hj  all  that  part  of  the  ship,  appurtenances,  freightage, 
and  cargo  for  the  benefit  of  which  the  sacrifice  is  made,  as  well  as  by  the  owner 
of  the  thing  sacrificed. 

2152.  General-averacje  los.s,  hoio  adjiisli'd. 

Sec.  2152.  The  proportions  in  which  a  general-average  loss  is  to  be  borne 
must  be  ascertained  by  an  adjustment,  in  which  the  owner  of  each  separate 
interest  is  to  be  charged  with  such  proportion  of  the  value  of  the  thing  lost  aa 
the  value  of  his  part  of  the  property  affected  bears  to  the  value  of  the  whole. 
But  an  adjustment  made  at  the' end  of  the  voj^age,  if  valid  there,  is  valid  every- 
•Vvhere. 

2153.  Values,  hoio  ascertained 

Sec.  2153.  In  estimating  values  for  the  puipose  of  a  general  average,  the 
ship  and  appurtenances  must  be  valued  as  at  the  end  of  the  voyage,  the  freights 
age  at  one  half  the  amount  due  on  delivery,  and  the  cargo  as  at  tbo  time  and 
place  of  its  discharge;  adding,  in  each  case,  the  amount  made  good  by  contri- 
bution. 

2154.  Thingsi  .^foioed  on  deck. 

Sec  215J:.  The  owner  of  things  stowed  on  deck,  in  case  of  their  jettison,  is 
entitled  to  the  benefit  of  a  general-average  contribotion  only  in  case  it  is  usual 
to  stow  such  things  on  deck  upon  such  a  voyage. 

2155.  Appl  leaf  ion  of  the  foregoinrj  ruh'ft. 

Sec  2155.  The  rules  herein  stated  concerning  jettison  are  equally  applicable 
to  every  other  voluntary  sacrifice  of  j^roj^erty  on  a  ship,  or  expense  necessarily 
incurred,  for  the  preservation  of  the  ship  and  cargo  from  extraordinary  perils, 

CHAPTER  IV. 
CARRIAGE  OF  MESSAGES. 
2161.    OUli  gat  ions  of  carrier  of  mein^agen. 

Sec  21G1.  A  can-ier  of  messages  for  reward,  other  than  by  telegraph,  must 
deliver  theru  at  the  place  to  which  they  are  addressed,  or  to  the  person  for 
■whom  they  are  intended.  Such  carrier,  by  telegraph,  must  deliver  them  at 
Buch  place  and  to  such  person,  provided  the  place  of  address,  or  the  person  for 
whom  they  are  intended,  is  within  a  distance  of  two  miles  from  the  main  ofiice 
of  the  carrier  in  the  city  or  town  to  which  the  messages  are  transmitted,  and 
the  carrier  is  not  required,  in  making  the  delivery,  to  pay  on  his  route  toll  or 

304 


Title  VII,  Chap.  V.] 


COMMON  CARRIERS. 


§§  2162-21(58 


ferriage;  but  for  any  distance  beyond  one  mile  from  such  ofSce,  compensation 
may  be  charged  for  a  messenger  employed  by  the  carrier.  [Amend ment,  approved 
March  30,  1874;  Amendments,  1873-4,  248;  took  effect  Juhj  1,  1874.] 


The  original  section  consisted  of  the  first 
Beiiteiice  alone,  leaving  out  the  words  "other 
than  hy  tclcgrapli." 

Order  of  transmitting  messages:  Sec.  2-20S. 

ncfusal  to  deliver  message,  penalty:  Sec. 
22,9. 

Express  companies  subject  to  the  same  lia- 
bilities as  other  earners,  in  the  absence  of  spe- 

2162.    Care  and  diligence  required. 

Sec.  21G2.  A  carrier  of  messages  for  reward  must  use  great  care  and  dili- 
gence in  the  transmission  and  delivery  of  messages.  [Amendmeid,  approved 
March  30,  1874;  Amendments  1873-4,  240;  took  effect  July  1,  1874.] 

The  original  section  added:  "A  carrier  by  telegraph  must  use  the  utmost  diligence  thereinu" 


cial  contract  to  the  contrary:  Ovrlavd  Mail  Co. 
V.  Carroll,  1  West  Coast  Rep.  281  (Col).  Ex- 
]iress  facilities  furnished  one  express  com- 
pany l)y  railroad  company  must  be  furnished 
to  anotlier:  Welln,  Farjo  <t-  Co.  v.  Ur.  It.  tfc  N, 
Co.,  Id.  ?,?,  (U.  S.  C.  C.  Or.). 

Carrier  of  telegrapliio  messages:  See  post, 
sees.  2207  et  seq. 


CHAPTER  V. 

COMMON  CARRIERS. 

ATtTTnr.p,  I.  Common  Cakrieks  in  Gener.\l ^ 2168 

II.  CoM.MON  Carriers  OF  Persons 2180 

III.  CoMMO>f  Carriers  of  Property 2194 

IV.  CoMMOX  Carrlers  of  Messages 2207 


ARTICLE  I. 

CO^MMON   CAllPvlERS    IK   GENERAL. 

2168.    Common  carrier,  what. 

Sec.  21G8.  Every  one  who  offers  to  the  public  to  carry  persons,  property,  or 
messages,  excepting  only  telegraphic  messages,  is  a  common  earner  of  whatever 
he  thus  offers  to  carry,  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  249;  took  effect  July  1,  1874.] 


Cai-riagc  in  general:  See  sees.  20S5  et  seq. 

luIanJl  and  marine  carriers  defined:  Sees. 
20r.7,  COSS. 

"Who  are  common  carriers,  generally. 
'Whoever  undertakes,  for  hire,  to  cany  goods 
for  the  public  generally  from  place  to  p'ace, 
whether  ll:e  transportation  be  from  port  1o 
port  or  beyond  the  sea,  at  home  or  abroail,  is  a 
common  carrier:  McCiures  v.  Ilamrnoiid.  1  Am. 


Co.,  4  Ilarr.  (Del.)  448,  And  a  wagoner  car- 
rying goods  for  hire  is  a  eommon  carrier, 
tliougli  a:i  incidental,  and  not  his  principal, 
employment:  Gordon  v.  liu'rh'imon,  o7  Am. 
Dee.  4G4;  and  see,  furthei',  J'owell  v.  My-rs, 
23  Weiul,  591;  Cnmdi'ii  etc.  'frani^portatioii 
Co.  V.  Belknap,  21  Id.  354;  Jones  v.  I'oorhees, 
10  Ohio,  143.  If  it  has  been  the  practice  of  a 
driver  of  one  of  the  coaches  of  a  stage  company 


Dec.  COS;  /?(  berlKon  v.  Kennedy,  CO  Id.  4(J0.   To     to  carry  articles  for  hire  for  hi-^  o\\  n  part.cular 


constitute  one  a  common  carrier,  it  is  necessary 
that  he  should  iiohl  himself  out  as  such,  aiul 
persons  so  holding  tliemselves  out  are  liable 
as  commi^n  carriers:  Farmers  <6  IJec/iav/cs' 
Bank  V.  Chamilain  Transportation  Company, 
42  Id.  491;  Poners  v.  Davenport,  43  LI.  100. 
Thii  may  be  done,  not  only  by  advertising. 
Dot  J  V.  Strong,  40  Id.  773,  but  by  actually  en- 
gaging in  the  business:  See  Thompson's  Car- 
riers cf  Passengers,  20.  The  following  lia\e 
been  held  to  bo  common  carriers: 


advantage,  that  fact  alone  will  not  lender  the 
ecmpaiiy  liable:  Bean  v.  Sinrferant,  8  N.  II. 
14G;  /danehard  v.  Isaacs,  3  Barb.  3SS;  and  see 
Augcll  on  Carriers,  sec.  77. 

I'he  owners  of  sleamboaU  arc  common  car- 
riers: Aqnew  V.  Steamer  Contra  Costa,  27  Cal. 
423;  McArthur  v.  Sears,  21  Wend.  l'.)0;  Sprowl 
K'llar,  4  Stew.  &  P.  382;  Bowman  v.  Hilton, 
1 1  Ohio, .303;  Dunsethx.  Wade,  2  Scam. 289;  Gil- 
more  V.  Carman,  40  Am.  Dec.  DO,  and  note.  Or 
the  owners  may  limit  their  employment  to  the 


Sla'je-coiiches. — Proprietors  of  stage-coaches  carriage  of  ]iarticular  kinds  of  goods  \vhcn,  as 

are  not  insurers  or  warrantors  of  the  safety  of  in  t!ic  case  of  stage-coaches,  they  are  iu)t  liable 

passengers  to  the  same  extent  with  common  a-s  common  carriers  for  any  other  c'ass  of  gooda 

can-icrs  of  goods:    J'aircliild  v.  Cal.  Slaf/e  Co.,  intrusted  to  their  agents  without  their  consent. 

13  Cal.  599.     Where  the  proprietors  of  a"  stage-  Citizens''  Bank  v.  Nantucket  steamboat  ('o.,  2 

coach  were  in  the  Iiabit  of  carrying  parcels  for  Story  C.  C.  16.     But  according  to  the  weight  of 

hire  which  did  not  belong  to  the  passengers,  it  authority,  tiie  owners  of  steam-tags  employed 

was   held    tiiat   they   were   common   carriers:  in  the  business  of  towing  are  noc  common  car- 

Dwight  V.  Brewster,  1 1  Am.  Dec.  133;  Beckmnn  riers.     For  a  collection  of  the  decisions  pro  and 

V.  Shouse,  28  Id.  033;  McUcnry  v.  Railroad  con  on  this  question,  see  Lawsou  on  Coutracta 

J6J 


|§  2169-2171 


OBLIGATIONS. 


[Div.  ni,  Part  IV, 


of  Carriers,  p.  3,  note  12;  and  White  v.  Tu;} 
Mary  Ann,  G  C'al.  402,  which  case  inc'incs 
towards  lixing  their  liability  as  that  of  coininou 
carriers. 

Telegrnph  rowpanies:  See  note  to  sec.  2207, 

RailrowU. — Umlcr  the  general  railroail  law, 
all  railroads  are  compelled  to  act  as  commoii 
carriers:  Coufni  Costa  li.  B.  Co.  v.  il/o.ss',  2;} 
Cal.  323;  Jacl<on  v.  5rtc.  V.  R.  R.  Co.,  Id.  2tJS. 

Fcrryrnpn. — The  law  re.Ejards  them  as  cotn- 
mon  carriers:  J/cy  v.  Ilnnson,  5  Cal.  3G0;  Polk 
V.  Co,tlin,  9  Id.  5G;  Griffith  v.  Cave,  22  Id.  rj34; 
LittCjohn  V.  Jonex,  39  Am.  Dec.  132;  AHiriijhl 
V.  Penn,  14  Tc.x.  230;  Whitmore  v.  Bowman,  4 
G.  Greene,  148;  Lewis  v.  Smith,  107  Mass. 
334;  Ferrli  v.  (Jjiion  Ferry  Co.,  36  N.  Y.  312; 
Slimmer  v.  Merry,  23  Iowa,  90. 

Street-railroads  may  be  if  they  allow  them- 
Belves  to  appear  as  such:  Levi  v,  L'jnn  ct  Bos- 
ton R.  Co.,  11  Allen,  300. 

Generally. — An  express  company  employing 
conveyances  ou  ned  and  managed  by  otiierb  is  a 
common  carrier:  Shi-rman  v.  n'e//'s,2SIjarb.  403; 
Sweet  V.  Barney,  23  N.  Y.  335;  Southern  Ex- 
press Co.   V.  Aeicby,  36  Ga.  635;   Haslam  v. 


Ailnms  Express  Co.,  6  Bosw.  2.35;  a  city  ex- 
pressman: Richards  v.  IVestrott,  2  Id.  .'iSO;  an 
omnibus  line:  Parmelee  v.  Lowitz,  74  111.  116; 
Dibble  V.  Broicn,  12  Ga.  217;  so  are  lightermen, 
bargemen,  hoymen,  canal-boatmen,  and  others 
pursuing  like  vocations:  Story  on  Bailments, 
sec.  49G;  see  Chevalller  v.  Straham,  47  Am. 
Dec.  G48,  note. 

Public  nature. — Their  duties  are  of  a  public 
nature,  and  are  subject  to  legislative  regulation 
and  control:  Peihv.  Chicarjo  etc.  R.  R.  Co.,  94 
U.  S.  1G4;  Chicago  etc.  R.'R.  Co.  v.  Ackley,  Id. 
179;  Winona  etc.  R.  R.  Cr>.  v.  Bhd-e,  Id.  ISO; 
Cole  V.  Goodwin  (t- Story,  10  Wend.  2.51.  With 
regard  to  the  regulation  of  fares  and  freightage 
on  railroads,  S(^e  ante,  sec.  4S4. 

Rishts  and  liabilities  of  crirrlers:  See  post, 
nnder  "Carriers of  Persons  and  Carriers  of  Prop- 
erty," sees.  2!80ctseq.  aud2194;  and  as  to  rights 
and  duties  of  carriers  by  sea,  see  sec.  20SS,  ante. 

Railroad's  liability  for  1  jS3  occasioned 
by  fire  from  its  engino:  See  Smyth  v.  Stock- 
ton etc.  R.  R.  Co.,  3  West  Coast  Rep.  575;  see 
a  valuable  discussion  of  this  question  in  Bur- 
roughs  v.  JJousatonic  R.  R.  Co.,  38  Am.  Dec.  70. 


2169.    Obligation  to  accept  freigl it. 

Sec.  21G9.  A  common  carrier  must,  if  able  to  do  so,  accept  and  carry  what- 
ever is  offered  to  bim,  at  a  reasonable  time  and  place,  of  a  kind  that  he  under- 
takes or  is  accustomed  to  carry. 


Must  receive  passengers  and  goods  if  he 
has  room:  Cole  v.  Goodwin,  32  Am.  Dec.  470; 
IlolUster  v.  Aowlen,  19  Wend.  234.  Delivery 
to  and  acceptance  by  carrier  need  not  be 
proved  in  an  action  for  refusal  to  carry:  Doty 
V.  Strong,  40  Am.  Dec.  773.  Refusal  by  rail- 
road to  carry  passengers:  Sec.  482,  ante. 


"Want  of  room:  See  poft,  sec.  2183. 

Improper  persons. — Carrier  not  obliged  to 
carry  such;  but  discrimination  must  be  based 
upon  a  reasonable  rule  and  good  cause:  Indian- 
apolis etc  R.  To.  v.  Renard,  4G  Ind.  203;  Day 
V.  On-en,  5  Mich.  520;  Westchester  etc.  R.  Co. 
V.   Miles,  55  Pa.  St.  209. 


2170.    Common  carriers  not  to  give  preference. 

Sec.  2170.  A  common  carrier  must  not  give  preference  in  time,  price,  or 
otherwise,  to  one  person  over  another.  Every  common  carrier  of  passengers  by 
railroad,  or  by  vessel  plying  upon  waters  Ij'ing  wholly  within  this  state,  shall 
establish  a  schedule  time  for  the  starting  of  trains  or  vessel  from  their  respect- 
ive stations  or  wharves,  of  which  public  notice  shall  be  given,  and  shall, 
weather  permitting,  except  in  case  of  accident  or  detention  caused  by  connect- 
ing lines,  start  their  said  trains  or  vessel  at  or  within  ten  minutes  after  the 
schedule  time  so  established  and  notice  given,  imder  a  penalty  of  two  hundred 
and  fifty  dollars  for  each  neglect  so  to  do,  to  be  recovered  by  action  before 
any  court  of  competent  jurisdiction,  upon  complaint  filed  by  the  district  attor- 
ney of  the  county  in  the  name  of  the  people,  and  paid  into  the  common-school 
fund  of  the  said  county.  [Amendmeut,  approved  April  2,  1880;  Amendments 
1880,  1  {Ban.  eel.  lOG);  took  effect  immediately.] 

Time-table. — For  railroads,  see   ante,    se?.     certain  quantities,  for  less  compensation  than 


481,  and  general!}',  infra,  sec.  2172. 

No  preference.  All  who  apply  must  be 
treated  alike:  Wheeler  v,  S.  F.  <i-  A.  R.  R. 
Co.,  31  Cal.  4G;  and  see  note  under  sec.  21G0. 

Exception. — "  If,  for  special  reasons,  in  iso- 
lated cases,  the  carrier  sees  fit  to  stipulate  for 
the  carriage  of  goods  and  merchandise  of  any 
class,  for  individuals,  for  a  certain  time,  or  in 


wiiat  is  the  usual,  necessary,  and  reasonable 
rates,  he  may  undoubteilly  d)  so,  without 
thereby  entitling  all  other  persons  and  parties 
t )  the  same  advantages  .nnd  reliof:  "  Fitchbnrg 
R.  V.  Gage,  12  Gray,  .393;  Sargent  v.  Boston  ds 
Lowell  R.  R.,  115  Mass.  41G;  New  England 
Exp.  Co.  V.  Maine  Central  /*.,  57  Me.  ISS; 
Sanford  v.  Railroad,  24  Pa.  St.  378. 


2171.    What  preferences  he  must  give. 

Sec.  2171.     A  common  carrier  must  always  give  a  preferenae  in  time,  and  may 
give  a  preference  in  price,  to  the  United  States  and  to  this  state. 

On  the  public  nature  of  common  carriers,  see  sec.  216S,  in  note. 

3G6 


Title  VII,  Chap.  V.] 


COJmON  CAHRIERS. 


§§  2172-2174 


52172.   Must  start  on  time. 

Sec.  2172.     A   common   earner  must  start  at  such  time  and  place  as  he 

announces  to  the  public,  unless  detained  by  accident  or  the  elements,  or  in 

order  to  connect  with  carriers  on  other  lines  of  travel.     [Anvndment,  approved 

March  30,  1874;  Amendments  1873-4,  249;  took  effect  July  1,  1874.] 

See  sec.  2170,  ante,  and  sec.  210G,  post.  scj.  202.     The  presumption  of  law  is  against 

Burden  cf  proof  of  exceptions. — Whenloss     tlio  common  carrier:  Aijnew  v.  iSteamer  Contra 


occurs,  the  Lr.rJen  of  proof  is  upon  tlie  carrier 
to  show  that  it  resulted  from  cm;  or  tlie  other 
of  excepted  cases:  BoJiamian  v.  Hammond,  A'2 
Cal.  227;  Waters  v.  Merchants'  Ins.  Co.  II  Pet. 
213;  Day  v.  liklley,  IG  Vt.  48;  Tourney  v. 
Wilson,  27  Am.  Dec.  515;  Angell  on  Carriers, 


Costa,  27  Cal.  425. 

Carrier  liable  to  action  for  non-oon- 
forraiiy  to  established  time-tnble:  Scars  v. 
Eastern  11.,  14  Alien,  43?);  Denton  v.  GreaX 
Northern  R.,  5  El.  &  CI.  850;  Le  Blanche  v. 
London  li.,  L.  E.,  1  C.  P.  D.    2S6 


2173.    Compensation. 

Sec.  2173.  A  common  carrier  is  entitled  to  a  reasonable  compensation,  and 
no  more,  which  he  may  require  to  be  paid  in  advance.  If  payment  thereof  ia 
refused,  he  may  refuse  to  carry. 


Heasonable  compensation, common  carrier 
must  liausport  for:  Cole  v.  Goodwin,  32  Am. 
Dec.  470;  AIcG'ill  v.  Iloiuland,  45  Id.  G54. 
Must  be  tendered:  Galena  IL,  v.  Roe,  18  III. 
488;  FiLh  v.  Newberry,  40  Am.  Dec.  33;  yet 
if  the  paity  offering  the  goods  avers  and  proves 
his  rcadi;icss  anil  willingness  to  pay,  thii  will 
be  considered  equivalent  to  a  tender:  Story  on 
Bailm.,  sec.  .jOo;  Pklcford  v.  Grand  Junction  /'., 
9  Dowl.  7GG.    Express  contract  to  pay  compen- 


sation is  not  necessary  to  hold  the  carrier  toliia 
liability:   Littlejohn  v.  Jones,  39  Am.  Dec.  132. 

Ken  for  freiglit:  See  sec.  2144.  Lost  by 
voluntary  surrender  of  possession:  Winjard  v. 
Banning,  30  Cal.  543;  does  not  exist  unless 
thci-c  is  the  relationship  of  debtor  and  creditor 
between  the  parties:  Fitch  v.  Newherry,  40  Am. 
Dec.  S3,  and  note;  Angell  on  Carriers,  sec.  356, 
et  seq. 

Lien  on  luggage  of  passenger:  Sec.  2191. 


2174.    Obligation!^,  how  limited. 

Sec.  2174.  The  obligations  of  a  common  carrier  cannot  be  limited  by  general 
notice  on  his  part,  but  may  be  limited  by  special  contract.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  249;  took  effect  July  1, 1874.] 


Compare  with  sec.  2176,  infra. 

Restricting  liability. — General  notices, 
even  if  biou^'ht  home  to  the  knowledge  of  the 
party  without  evidence  of  ids  assent  to  the  terms 
thereof,  are  not  Ijinding,  and  do  nut  restrict  the 
common-law  liability  of  tiie  cairicr.  This  is  a 
well-Getiled  ride  in  America:  Railroad  Company 
V.  AiaurfactiirlnfjCompany,  IG  Wall.  318;  South- 
trn  Express  (  ompnvy  r.  Caperton,  44  Ala.  101; 
McMillan  v.  Mich.  S.  tt-iV.  I.  R.  R.  Co.,  IG  Mich. 
79;  Mann  v.  Dirchard,  40  Vt.  32G;  Derirort  v. 
Locmer,  21  Conn.  245:  Dorr  v.  N.  J.  S.  N.  Co., 
11  N.  Y.  485;  /ll.  G.  R.  R.  Co.  v.  Frankenbenj, 
54  111.  SS;  Southern  Ex.  Co.  v.  Nncby,  30  Ua. 
635;  Davi  Ison  v.  Graham,  2  Ohio  St.  131 ;  Lev- 
ering V.  Union  T.  ft-  /.  Co.,  42  Mo.  88;  Judson 
V.  We.^tern  R.  R.  Co.,  6  Allen,  486.  llestricticns 
on  commondaw  liability  of  a  common  carrier 
inserted  in  a  receipt,  signed  by  himself  alone, 
are  to  be  consU'ued  most  strongly  against  him: 
Hooy-er  v.   Wells,  Fargo  d:  Co.,  27  Cal.  11. 

Ko'iicc  is  a  proposal  for  a  contract.  It  must 
thcrLforo  be  shown  that  it  was  adopted  as  a 
contract  Ijy  the  parties,  when  it  becomes  equiva- 
lent to  an  express  contract:  Bliimenfhal  v. 
Bminerd,  3S  Vt.  410;  Lawson  on  Contracts  of 
Carriers,  sec.  101;  2  Redf.  on  Kaihvays,  5th  ed., 
93,  97. 

Evidence  of  assent:  See  Cole  v.  Goodwin, 
32  Am.  Dec.  470,  note  504.  The  acceptance  of 
a  bill  of  lading  is  sufficient  evidence  of  assent  to 
its  terms:  Slei^lev.  Townsend,^Zl  Ala.  247;  Lake 
v.  Hard,  38  Conn.  53G;  Robinson  v.  Merchonts' 
Dispuleh  Trans.  Co.,  45  Iowa,  470;  Ad  ims  Ex. 
Co.  V.  Sharpless,  77  Pa.  St.  516;  Slrohn  v.  De- 
troit etc.  R.  Co.,  21  Wis.  554;  Bee  post,  8ec.ill76. 


Notices  printed  or  stamped  on  tickets 
or  checks  in  no  way  limit  the  liability  of  car- 
riers: Qiiimby  v.  Vanderbi  t,  17  N.  Y.  300; 
Brown  v.  Eastern  R.  Co.,  11  Cush.  97;  Hender- 
son v.  Stevenson,  L.  R.,  2  Sc.  &  Div.  470;  Blos- 
som V.  Dodd,  43  N.  Y.  264.  Express  assent 
must  be  shown:  Rawson  v.  Pa.  R.  R.  Co.,  43 
Id.  212;  Madan  v.  Sherrard,  73  Id.  329.  When 
a  through-ticket  is  issued  by  one  railroad  over 
other  roads  than  its  own,  the  company  issuing 
is  liable  for  the  whole  distance,  although  there 
is  a  stipulation  on  the  ticket  to  the  effect  that 
th.e  company  will  not  be  liable  beyond  its  own 
line,  such  stipulation  not  having  been  signed 
by  the  passenger:  Central  L'ailmad  it-  Banking 
Co.  v.  Combs,  S.  C.  Ga.,  Sept.  I,  1883.  But  see, 
on  this  subject,  sec.  2201,  post;  and  Lawson  ou 
Contracts  of  Carriers,  sees.  233  ct  seq. 

Esception — Delivery  and  entry  of  par- 
ce!3— Valuable  goods.—"  It  is  now  well  .set- 
tled that  a  common  carrier  may  qualify  his 
liability  by  a  general  notice  to  all  who  may 
emjiloy  him  of  any  reasonable  requisition  to  be 
observed  on  their  part  in  regard  to  the  manner 
of  delivery  and  entry  of  parcels,  and  the  in- 
formation to  be  given  to  him  of  their  contents, 
the  rates  of  freight, and  the  like;  as,  for  example, 
that  he  wid  not  be  responsible  for  goods  above 
the  value  of  a  certain  sum  unless  they  are  en- 
tered as  such,  and  paid  for  accordingly:"  2 
Greenl.  Ev., sec.  215;  McMillin  v.  Mich.  S.  d- N. 
I.  R.  R.  Co.,  10  Mich.  79,  110;  Orange  County 
Bant:  v.  Brown,  24  Am.  Dec.  129;  Erie  R.  Co. 
v.  Wilcox,  84  111.230;  Angell  on  Cariiers,  sec. 
245;  Lawson  on  Contracts  of  Carriers,  sec.  88; 
Cole  V.  Goodwin,  32  Am.  Dec.  470,  note  506, 


367 


§§  2175-2177 


OBLIGATIONS. 


[Di7.  Ill,  Part  IV, 


where  the  subject  of  the  common  cairior's  power 
to  limit  his  liability  is  discussed  at  Icii^^th. 

Usage,  ill  order  to  afTect  the  rights  ami  lia- 
bilities of  c();iimon  carriers,  must  bo  uniform, 
certain,  well  established,  and  of  very  Imig  stan<l- 
ing,  so  as  to  i;n;)!y  the  general  acriuiesccnci!  of 
all  parties:  Sin'jhtoii  v.  JJiUiard,  1  Strobh.  20.3; 
Turnnf  v.  H'ilson,  7  Yerg.  .'540;  Wayne  v.  Steam- 
boat  Gen.    Pike,    IG   Ohio,   421;    Oslrandtr  v. 

2175.    Certain  agreements  void. 

Sec.  2175.  A  common  carrier  cannot  be  exonerated,  by  any  agreement  made 
in  anticipation  thereof,  from  liability  for  the  gross  negligence,  fraud,  or  willful 
wroncr  of  himself  or  his  servants. 


Browv,  8  Am.  Dec.  217;  Oordoa  v.  Little,  11 
Id.  g;>2. 

"Ltnzz  looi. — The  law  of  tlie  place  of  receiving 
tiie  goo  Is  detenniiies  the  right  to  limit  the  lia- 
bility by  notice:  //a.'e  v.  New  Jrsvy  Steafrt 
j^(in.  Co.,  ;5i)  Am.  Dec.  31)8,  and  note. 

Limitins  liability  by  special  contract: 
See  sec.  2175,  and  note,  and  note  to  see.  2186. 


Limitations  on  liability — The  text  is  simply 
declarative  of  the  common  law;  a  notice  or 
even  a  special  agreement  affects  the  responsi- 
bility of  the  carrier  in  the  capacity  of  an  insurer 
only,  and  does  not  totally  remove  his  lia- 
bility as  baillee:  lIoHistor  v.  Novlcn,  19  We'xl. 
234;  Coif  v.  Goodvnn,  32  Am.  Dec.  470;  New 
Jersey  Steam  Navbialion  Co.  v.  Merchantu^ 
Bank,  G  How.  .341;  hlley  v.  Home,  5  Bing.  217; 
JJiidou  V.  Dilhiii,  2  Q.  B.  G4G;  Swindler  v.  IJil- 
liard,  2  Rich.  L.  28tj;  Bechnan  v.  Shouse,  28 
Am.  Dec.  Go3;  Camden  etc.  R.  B.  Co.  v.  Burke, 
28  Id.  488;  Pa.  E.  C.  v.  llendrkkson,  51  Pa. 
St.  330. 

See  sees.  2120,  2186,  and  2201,  and  notes 
thereto;  see  also  sec.  2 1 74,  and  note.  The  con- 
tract is  to  be  interiireted  most  strongly  against 
the  carrier:  Overland  Mail  Co.  \.  Carroll,  1 
West  Coast  Rep.  281  (Col.). 


Gross  ns^ligence. — No  real  distinction  be- 
tween tliis  and  ordinary  negligence:  W't/ld  v. 
Picl-ford,  8  I^Ice.  &  W.  4G;  'ilium  tn  v.  Lihbin, 
2  Q.  B.  G4G;  Angell  on  Carriers,  sec.  2;3S;  Lf.w- 
son  on  Contracts  of  Carriers,  sees.  I(i'4-1G9; 
Story  oil  Bailm.,  sec.  571,  571  A.;  lixilroul  Co. 
V.  Lockwood,  17  Wall.  382;  Steamboat  A'cio 
Worlt  V.  Khi'f,  IG  How.  474. 

Burden  of  proof,  after  proof  by  the  carrier 
of  Contract  limiting  liability,  devclvt'S  upon  the 
shipper  according  to  the  pre;iondcranco  of 
American  decisions,  Greenleaf  and  a  few  au- 
thorilies  being  to  the  coutrarj':  Angell  on  Car- 
riers, sec.  270.  Tlie  deci.-sions  are  collated  in 
Lawson  on  Contracts  of  Carriers,  sec.  .'^73. 

Torms  of  receipt,  -when  and  vylicn  not 
binding  on  shipper:  See  Overland  Mad  Co.  v. 
Cm-roll,  fiiip7-a,  and  Pereirav.  C.  P.  B.  B.  Co., 
4  West  Coast  Rep.  372. 


2176.    Written-contract  carrier. 

Sec.  2170.  A  joassenger,  consignor,  or  consignee,  by  accepting  a  tictet,  bill 
of  lading,  or  written  contract  for  carriage,  with  a  knowledge  of  its  terms, 
assents  to  the  rate  of  hire,  the  time,  place,  and  manner  of  delivery  therein 
stated;  and  also  to  the  limitation  stated  thei'ein  upon  the  amount  of  the  car- 
rier's liabilitj'  in  case  property  carried  in  packages,  trunks,  or  boxes  is  lost  or 
injured,  when  the  value  of  such  property  is  not  named;  and  also  to  the  limita- 
tion stated  therein  to  the  carrier's  liability  for  loss  or  injury  to  live  animals 
carried.  But  his  assent  to  any  other  modification  of  the  carrier's  obligations 
contained  in  such  instrument  can  be  manifested  only  by  his  signature  to  the 
same.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  219;  looJa 
effect  J iihjl,  1874.] 


This  section  is  to  be  read  in  connection  with 
sec.  2174,  ante. 

Concealment  of  value,  if  there  has  been  a 
fraudulen':,  carrier  not  liable:  Orange  County 
Bank  V.  Broicn,  24  Am.  Dec.  129;  exce[)t,  of 
course,  for  misconduct  or  neglect:  / 1 ol lister  v. 
Nowlen,  32  Id.  435;  Be'/\.  Baj>p,  37  Id.  523; 
Story  on  Biilui.,  sec.  5ti5;  Cjxe  v.  llei-sley,  19 
Pa.  St.  243;  Cliica-jo  B.w  Thompson,  19111.73. 

Value  of  c^odo  may  require  statement  of: 
Oppenheim  v.  N.  S.  Ex.  Co.,  09  111.  G7;  IloUis- 
ter  V.  Uou-len,  32  Am.  Dec.  455. 

Witliout  Limitation  of  liability,  the  car- 
rier is  answerable  for  loss  of  valuable  package, 
though  ignorant  if  value:  Ilel/v.  Baj//),  37  Am. 
Dec.  528;  Brown  v,  Camden  etc.  B.,  83  Pa.  St. 
316;  Little  v.  Boston  i:  Me.  B.,  CO  iMc.  239;  Phil- 


lipn  v.  Earle,  8  Pick.  182.  Limitation  of  liabil- 
ity: Sec  S(  cs.  2174,  2175,  and  notes  thereto. 

Shipper  not  bound  to  disclose  value,  in 
abjcnce  f>f  notice,  unless  asked:  Avyv.  /'app, 
37  Am.  Dec.  528;  Merchants^  Di-^patrh  Trans. 
Co.  V.  BoHef,  89  111.  473,  and  cases  la>t  before 
cited;  Orange  Co.  Bank  v.  Brown,  24  Am.  Dec. 
129. 

Value  bsins  apparent — In  this  cas-^,  al- 
though the  carrier  gives  notice,  yet  the  shi[)per 
need  not  volunteer  information  as  to  IIjc  value 
of  the  goods:  Lawson  on  Contracts  of  Carriers, 
sec.  93;  Beck  v.  Bvayis,  3  Camp.  2J7;  Ho-sko- 
vulz  V.  Adams  Express  Co.,  5  Cent.  L.  .1.  58; 
S.  C,  9  Id.  .339;  Orndorff  \.  Aihuns  Evpresa 
Co.,  3  Bush,  194;  Moses  v.  Boston  tie.  R.  Co., 
24  N.  H.  71. 


2177.    When  not  liable  for  loss. 

Sec.  2177.     A  common  carrier  is  not  responsible  for  loss  or  miscarriage  of  a 
letter,  or  package  having  the  form  of  a  letter,  containing  money  or  notes,  bills 

3Ca 


Title  VII,  Chap.  V.]  COMMON  CARRIERS.  §§  21S0-21S3 

of  exchange,  or  other  papers  of  value,  unless  he  be  informed  at  the  time  of  its 
receipt  of  the  value  of  its  contents.  [New  section,  approved  March  30,  1874; 
Amendments  1873-4,  250;  took  effect  July  1,  1874.] 

To  the  same  effect:  Hayes  v.  Wells,  Fargo  of  notice  by  the  carrier,  limiting  his  liability  in 
«fc  (  0.,  23  Cal.  185.  this  respect:  See  notes  to  sec.  2170,  aiife. 

Notice. — This  section  obviates  the  necessity        Messages,  carriage  of:  See  sec.  21G1,  ante. 

ARTICLE  II. 

COMMON   CAERIERS  OF   PERSONS. 

2180.  Obligation  to  carry  luggage. 

Sec.  2180.  A  common  carrier  of  persons,  unless  his  vehicle  is  fitted  for  the 
reception  of  persons  exclusively,  must  receive  and  carry  a  reasonable  amount 
of  luggage  for  each  passenger,  without  charge,  except  for  an  excess  of  weight 
over  one  hundred  pounds  to  a  passenger;  provided,  that  if  such  carrier  be  a 
proprietor  of  a  stage  line,  he  may  not  receive  and  carry  for  each  passenger  by 
Buch  stage  line,  without  charge,  more  than  sixty  pounds  of  luggage.  [Amend- 
ment,  approved  March  9,  1878;  Amendments  1877-8,  87;  took  effect  sixtieth  day 
after  j^assage.  ] 

Liability  of  carriers  of  persons  gener-  and  to  the  same  extent  as  a  common  carrier  of 
ally:  See  note  to  sec.  2186.  property:  Slomaii  v.  Ori'at  Western  I'.  Co.,  C7 

iJxtra    baggage. — Where  such   additional    N.  Y.  20^;  Gtasco  v.  New  York  etc.  R.  (Jo.,  36 
compensation  is  jjaid,  the  carrier  is  responsible     Barb.  537;  Dihhle  v.  Brown,  12  Ga.  218. 
for   buch  extra  baggage  in  the  same  manner 

2181.  Luggage,  what. 

Sec.  2181.     Luggage  may  consist  of  any  articles  intended  for  the  use  of  a 

passenger  while  traveling,  or  for  his  personal  equipment. 

Baggage,  v^hat  is. — This  is  a  mixed  qnes-  riers  of  Passengers,  511,  513;  Angell  on  Car- 

tion   of   law   and    fact,  to   be   detcrmineil    by  rieis,  115,  note. 

the  ji;ry  under  proper  instructions  from  tlie  Not  liable  for  what  is  not  properly  bag- 
court:  Vdjhli'  V.  Brown,  12  Ga.  217;  Parmelee  gage. — The  agreement  on  the  part  of  t!ie  car- 
V.  I'i^her,  22  III.  212;  N.  Y.  etc.  11.  Co,  v.  Tra-  rier  is  to  transport  the  passenger  and  his  bag- 
loff,  20  Alb.  L.  J.  409.  For  decisions  upon  gage,  and  there  is  no  contract  as  to  anything 
what  articles  have  been  held  to  be  properly  else:  Thompson  ou  Carriers  of  Passengers,  522. 
baggage  and  vice  versa,  see  Thompson  on  Car- 

2182.  Liability  for  luggage. 

Sec.  2182.  The  liability  of  a  carrier  for  luggage  received  by  him  Avith  a  pas- 
senger is  the  same  as  that  of  a  common  carrier  of  property. 

See  sec.  2194,  pof^t.  eral  cases  where  baggage  in  the  custody  of  the 

_The  passei'gcr  keeping  the  baggage  in  passenger  has  been  stolen,  no  negligence  being 

his  o^vn  custody  relieves  the  carrier  of  his  shown  on  the  part  of   the  carrier,  the  carrier 

extraordinary  liability  of   insurer  only.     For  has  been  exonerated  of  all  liability:    IV.lcox  v. 

ah  losic?  co.iSj.|  lent  upon  the  negligence  of  S'ea>nb3'U  v.   Philadelphia,  20  Am.   Djo.  43G; 

the  carrier  or  iii?  servants,   the    cirrier  still  P-d'mnn  Pdlace  Car  Co.  v.  Smith,  73  III,  oij5; 

remains    liab'e:    American   Steamiihip    Co.    v.  The  U.  E.  Lee,  2  Abb.  49,  51;  Clark  w  Burns, 

Bryan,  83  Pa.  St.  44G;  Kindey  v.  Lake  Shore  118  Mass,  277. 

etc.  R.  Co.,  19  Ail).  L.  J.  113;,  Williaivs  v.  Keo-        Li3ia  on  baggage  for  fare:  See  sees.  2191, 

hik  etc.  Packet  Co..  3  Cent.  L.  J   400;    Weeks  3031,  2>ost. 
V.  New  York  etc.  R.  Co.,  9  Hun,  G71.     In  sev- 

2183.  Luggage,  how  carried  and  delivered. 

Sec.  2183.  A  common  carrier  must  deliver  every  passenger's  luggagS,  wliether 
within  the  prescribed  weight  or  not,  immediately  upon  the  arrival  of  the  jms- 
Benger  at  his  destination;  and  unless  the  vehicle  would  be  overcrowded  or 
overloaded  thereby,  must  carry  it  ou  the  .same  vehicle  by  which  he  carries  tho 
passenger  to  whom  it  belonged,  except  tbat  where  luggage  is  transported  by 
rail  it  must  be  checked  and  carried  in  a  regular  baggage-car;  and  whenever 
passengers  neglect  or  refuse  to  have  their  luggage  so  checked  and  transported, 
it  is  carried  at  their  risk.  [Amctidmenl,  approved  March  30,  1874;  Amendments 
1873-4,  250;  took  effect  July  1,  1874.  J 

Civ.  Code— 24  3G9 


8§  2184-2183 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


The  exception  tvaa  nd  led  by  the  amendment. 

Duration  of  liabilJty.— Currier's  liability 
is  co-ex  ten.sive  with  his  custody  of  the  baggage, 
:ind  cdutiiines  until  delivery  into  the  hands  of 
the  passenijer,  or  until  the  latter,  by  the  im- 
plication derived  from  his  contract,  relieves 
t'ne  former  of  his  liability  as  insurer:  Minor  v. 
Chica.jo  etc.  It.  Co.,  Yd  \Vis.  40;  Toledo  etc..  R. 
Co.  V.  ILtmmond,  '^:^  lad.  370;  Cole  v.  Good- 
vnn,  32  Am.  Dec.  470;  Qiilmit  v.  //ens/iaw,  35 
Vt.  304;  J^Iatlison  v.  New  Yo7-k  etc.  li.  Co.,  19 
Alb.  L.  J.  35f). 

Check  is  jirima  facie  evidence  that  the  car- 
rier has  received  the  baggage  which  it  repre- 
Benta:  Davis  v.  Michigan  etc.  I'.  Co.,  22  111. 
278;  Chicago  etc.  B.  Co.  v.  Clay  ton,  78  Id.  GIG; 
Atchison  etc.  R.  Co.  v.  Brewer,  20  Kan.  GOO; 
Davis  V.  Cayuga  etc.  R.  Co.,  10  Hov/.  I'r.  330. 

Duty  to  furnish  check:  See  sec.  479,  ante. 

Storage  of  baggage.— It  is  the  duty  of  the 
carrier  to  care  for  the  baggage  for  a  reasonable 


time  after  arrival,  to  enable  the  passenger  to 
take  possession  of  it:  Dininny  v.  New  York  etc. 
R.  Co.,  49  N.  Y.  540;  Nanus  v.  Bay  State 
Steandioat  Co.,  4  Boaw.  225;  Cary  v.  Cleveland 
etc.  R.  Co.,  29  Barb.  35;  Curtis  v.  Delaware 
etc.  R.Co.,  74  N.  Y.  110. 

Removal  of  baggage. — It  is  the  reciprocal 
duty  of  the  passenger  to  remove  the  baggage 
within  a  reasonable  time.  And  if,  having  an 
opportunity  aftbrdcd  him,  be  does  not  do  so, 
the  carrier  is  relieveil  of  his  cxtraonlinary 
liability  of  insurer,  and  becomes  subject  to 
the  ordinary  liability  of  tlio  warehouseman 
only:  Dininvy  v.  New  York  etc.  R.  Co..  49  N. 
Y.  540;  Chicago  etr.  R.  Co.  v.  Boyce,  73  111. 
510;  Mote  v.  Chicago  R.  Co.,  '21  Iowa,  22; 
Ross  V.  Missouri  etc.  R.  Co.,  4  Mo.  App.  583. 
But  the  passenger  is  not  obliged  to  expose  him- 
self in  a  crowd  in  order  to-  claim  it:  Cole  v. 
Goodwin,  19  Wend.  251;  Ncvins  v.  Bay  State 
Steamboat  Co.,  4  Bosw.  225. 


2184.    Obligation  to  provide  vehicles. 

Sec.  2184.  A  common  carrier  of  persons  must  provide  a  suiScient  number  of 
vehicles  to  accommodate  all  the  passengers  who  can  bo  reasonably  expected  to 
require  cai'riage  at  any  one  time. 

See  note  to  sec.  21G9,  ante,  and  2185,  post. 

'51185.   Si'otsfor  passengers. 

Sec.  2185.  A  common  carrier  of  persons  must  provide  every  passenger  with 
ta  seat.  He  must  not  overload  his  vehicle  by  receiving  and  carrying  more  pas- 
-Bcngers  than  its  rated  capacity  allows. 


•  Compare  with  sec.  483,  ante. 

Duty  to  carry  all  ■who  apply:  Sec.  21G9. 

Want  of  room  is  generally  sullicicnt  excuse 

'for  denying  farther   admission  of   passengers 

into  the  conveyances,  on  the  ground  that  the  ac- 

■  commodations   are    inadequate  for    a  greater 

nuin'ocr  than  these  already  admitted,  or  the 

reception  of  more  would  incommode  those  who 


Y.  G70,  and  32  Barb.  398,  where  plaintifif  re- 
covered for  injuries  received  while  standing  on 
the  [)latform,  the  car  I)eing  crowded;  Long  v. 
Jlorna,  1  Car.  &  P.  GIO;  Angell  on  Carriers, 
470,  note  h. 

Freight-car. — The  person  agreeing   to   be 

carried    on   a    baggage-wagon    or   freight-car 

agrees  by  implication  to  be  satisfied  with  the 

have    already   taken    passage:   The  Pacific,    1     accommodations  to  be  found  there:  Murch  v. 

Blatchf.  509;  Jcncks  v.  Coleman,  2  Sumn.  221.     Concord  R.  Co.,  29  N.  II.  9,  42;  Dillane  v.  New 

Overcrov/ding.— Action    will    lie    against     York  etc.   R.    Co.,    5G    Barb.   30;  Allender   v. 

■  common  carrier  for  injury  sustained  from  this     Chicago  etc.  R.  Co.,  37  Iowa,  2G4. 

cause:    Willis  v.  Long  Island  Railroad,  34  N. 

:\2188.    Regulations  for  conduct  of  business. 

Seo.  2188.     A  common  carrier  of  persons  may  make  rules  for  the  conduct  of 
his  business,  and  may  require  passengers  to  conform  to  them,  if  they  are  lawful, 
.public,  uniform  in  their  application,  and  reasonable. 

Rule.3  and  regulations  that  carrier  may 
•  make:  See  notes  to  Commonwealth  v.  Power, 
-41  Am,  Dec.  472;  and  to  Cheney  v.  Boston  <& 


Me.  R.  Co.,  45  Id.  192;  see  also  rh^c,  sec.  48t. 
Regulations:  See  ante,  sec.  405.  subds.  10, 

11;  an  1  sec.  484.     The  fact  that  it  is  lawful  is 

not  enough:  State  v.  Overton,  24  N.  J.  L.  435. 

It  must  not  only  be  reasonable,  but  must  be 
-enforced  in  a  reasonable  manner:  Chica/o  etc. 

B.  Co.  V.  Williams,  55  111.  185;  Bass  v.  Clucano 

etc.  R.  Co.,  .36  Wis.  450. 

The  question  of  reasonab!enps.<t  of  the  regit- 
'  lation,    according    to    the    better   opinion,    is 

a  mixed  one  of  law  and  fact:  1  Redf.  on  Uail 


the  directors  or  other  governing  board:  State  v. 
Ouerfon,  24  N.  J.  L.  435;  or  by  the  agents  of 
the  company:  Mcrrihew  v.  Milwaukee  <t  S.  R. 
Co.,  5  Am.  L.  P^eg.  3G1;  Jefcr^onvlle  R.  Co.  v. 
Ro'/ers,  28  Ind.  1 ;  Vedder  v.  Fellows,  20  N.  Y. 
12G. 

Loss  of  ticket.  —It  is  the  duty  of  the  passen- 
ger, in  case  he  has  lost  ids  ticket,  or  tlio  one 
he  holds  does  not  entitle  him  to  proceed  far- 
ther, although  he  may  have  paid  the  price  of 
passage  to  a  station  farther  on,  to  pay  the  fare 
demanded,  and  then  if  the  company  refuse  to 
make  suitable  reparation,  lie  may  maintain  his 
action  against  them:  Chicago  etc  R.  Co.  v.  Grif- 


ways,  95;  Thompson  on  Carriers  of  Passengers,  fn,  G3  111.  499;  Frederick  v.  Marqnetto  etc.  R. 

335;  Dayx.  Owen,  5  IMich.  520;  Bass  v.  Chicago  Co.,  37  Mich.  342;  and  Thompson  on  Carriers 

etc.  R.  Co.,  36  Wis.  450;  Brown  v.  Memphis  etc.  of  Passengers,  338. 

R.  Co.,  4  Fed.  Rep.  37.  Liability  of  passenger  carriers  generally. 

Who  may  make  regulation.^  for  the  company.  A  few  old  English  cases  seem  to  have  held  com- 

They  may  be  made  ia  the  form  of  by-laws  by  mon  carriers  of  passengers  liable,  like  common 

370 


Title  VII,  Chap.  V.] 


COMMON  CAnniERS. 


§§2187,2188 


carriers  of  goods,  as  insurers,  but  itliaslongsince 
been  settle  I  both  in  England  and  America  tliat 
they  are  liablu  only  for  negligence.  In  America, 
at  least,  common  carriers  of  jassengers  for  hire 
are  bound  to  exercise  tlie  utmost  care,  cau- 
tion, and  liiligence,  and  arc  reaponsiblc  to  their 
paEGe:)ger3  for  injuries  wldcli  migiit  have  been 
avoidc({,  on  their  part,  by  the  observation  of 
extraordinary  vigilance,  aided  Ijy  the  highest 
skill:  Story  on  Bailments,  sec.  ."01;  2  Itcdlield 
on  r.aihvays,  5!;hcd.,  21G;  Pitni.  11.  Co.  v.  Ron, 
1C2  U.  iS.  'L*)I;  Jamison  v.  San  Josi  «C'  iS'.  C.  R. 
R.  Co.,  C3  Cal.  do:);  Falrchild  v.  Cal.  Stai/eCo., 
13  Id.  r,CO;  Yiomavs  v.  Contra  CoslaS.  N.  Co., 
44  Id.  72;  Wlmiton  v.  North  Beach  A  M.  R.  /,'. 
Co.,  30  Id.  .^;D0;  Lemon  v.  Ch'iu.slor,  OS  Mo. 
MO;  MrPaddon  v.  New  York  C.  R.  R.  Co.,  44 
K.  Y.  47S;  Keobil:  ParlH  Co.  v.  True,  SS  111. 
€0S;  Warren  v.  Fdrhbimj  R.  R.  Co.,  8  Allen, 
23.1;  Simmons  v.  Xcio  Radford  V.  <fr  N.  S.  Co., 
07  rJass.  ouS;  Ingads  v.  BUIs,  43  Am.  Dec.  .340, 
•where  the  subject  is  discussed  at  length; 
Thompson  on  Carriers  of  Passen;;ers,  200. 
"Every  wayfarer  in  a  public  vehicle  must 
make  up  iiis  mind  to  meet  the  risks  incident 
to  the  mode  of  travel  he  adopts;  risks  which 
cannot  be  avoided  by  tlie  utmost  degree  of 
care  an  1  skill  in  the  preparation  and  manage- 
ment of  the  means  of  conveyance:"  AngtU  on 
Canicis,  see.  523.  On  a  conflict  of  evidence 
the  verdict  against  the  carrier  was  not  disturbed, 
in  Spe-r,..an  v.  Cal.  St.  R.  R.  Co.,lM  Cal.  432. 

Liability  as  affected  by  contract. — Ac- 
cor.ling  to  t!ie  gi'eat  weight  of  authority  in 
America,  a  carrier  of  passengers  cannot  by  any 
contract,  whether  embodied  in  a  "stock  pass," 
"free  pass,"  or  otherwise,  exempt  himself  from 
the  result  <  f  his  negligence:  See  sees.  2174,  and 
2173,  and  note;  Radroad  Co.  v.  Lochwood,  17 
Wail.  Sj7;  Jacobus  v.  St.  Paid  <fr  C.  R.  U.  Co., 
2J  Maui.  125;  Ohio  di  M.  R.  W.  Co.  v.  KicHes, 
71  lad.  -..7!;  Cleveland,  P.  c6  A.  R.  Co.  v.  Car- 
ran,  19  Oiiio  St.  1;  Pevn.  R.  Co.  v.  Henderson, 
51  Ta.  St.  315;  T.  ledo  W.  <<b  W.  R.  Co.  v. 
Begijs,  85  111.  SO;  /I'ose  v.  Des  Moines  V.  R.  R. 
Co.,  33  Iowa,  24G;  Rdihcay  Co,  v.  Sterens,  95 
U.  S.  055;  see  also  Lawson  on  Contracts  of 
Carriers,  278;  Biiffulo  etc.  R.  Co.  v.  OUIara, 
S.  C.  I'a.,  Dec.  30',  1882. 

See  notes  to  Cole  v.  Goodwin,  32  Am.  Dec. 
498,  and  Injalls  v.  Bills,  43  Id.  3G7,  discussing 
lliii  fiuc.^tion. 

Injury  f.om  collision. — When  both  parties 
are  negligent,  the  injured  passenger  may  re- 
cover from  either,  and  if  l)e  receives  compen- 
Be.tion  from  and  releases  one,  he  releases  both: 
Thompklii.i  V.  Clay  St.  R.  R.,  4  West  Coast 
Rep.  637. 


Willful  tort. — A  carrier  is  liable  for  tho 
wrongful,  willful,  and  malicious  conduct  of  its 
servants,  if  witiiin  the  scope  of  their  employ- 
ment, as  Mell  as  for  tiieir  negligence  when  it 
occasions  injury  to  a  passenger:  McKiidetj  v. 
Chicrnjo  d-  N.  IF.  R.  R.,  44  Iowa.  314;  LVws  v. 
Chicajo  cb  jV.  W.  R.  /?..  42  Wis.  054;  A.  <L-  O. 
W.  R'lf  Co.  V.  Dunn,  19  Ohio  St.  I(t2;  Bn/nnt 
V.  Rtcii,  100  Mass.  180;  Penn.  /.'.  R.  Co.  v.  Van- 
dicer,  42  Pa.  St.  305;  (.'roaler  v.  Chicaijo  <t-  N, 
W.  H.  Co.,  3G  Wis.  057.  See  sees.  2338,  2339, 
jjosf,  and  note. 

Contributory  negligence  of  passenger.  On 
the  other  hand,  the  passenger  is  bound  to  exer- 
cise ord.inary  care  and  diligence  to  avoid  injur}', 
and  if  he  fails  so  to  do,  and  thereby  dii-cctly 
contributes  to  liis  injury,  he  cannot  recover: 
Thompson  on  Carriers  of  Passengers,  257;  Shear- 
man &  Ileillield  on  Negligence,  sec.  25  et  scf|.; 
2  Thompson  on  Negligence,  1148;  Jeffcr.son  R. 
R.  Co.  v.  Ileiidriclcs,  20  Ind.  228;  Lop<z  v. 
Cent.  A.  M.  Co.,  1  West  Coast  Rep.  41  (Ariz.); 
sec  also  note  to  J/artn'e.ld  v.  Roper,  34  Am.  Dee. 
273,  where  the  eases  are  collected.  As  to  wliat 
particular  acts  have  been  held  to  be  and  to 
constitute  contributory  negligence,  see  Ihf/aUs 
V.  Bills,  43  Am.  Dec,  note  304,  and  Thom[isoa 
on  Carriers  of  Passengers,  257.  It  is  a  ques- 
tion for  the  jury:  Jamison  v.  San  Jo^i  &  S.  C. 
R.  Co.,  55  Cal.  593,  and  infra.  It  is  certainly 
error  for  the  court  to  say  to  the  jury  that  he 
docs  not  see  Iiow  tlie  facts  alleged  to  constitute 
contributory  negligence  were  not  what  an  or- 
dinary man  would  do:  Andrews  v.  Ranyon,  4 
West  Coast  Rep.  81.  What  would  be  con- 
tributory negligence  in  one  case  would  not  be 
in  another;  e.  (/.,  a  passenger  may  leap  from  a 
vehicle  to  escape  from  actual  or  reasonably 
appreliended  peril:  JoHfs  v.  Boyce,  1  Sta:k. 
493;  Stokes  v.  Saltonstcdl,  13  Pet.  ISl;  S.  C, 
Thompson  on  Carriers  of  Passengers,  183;  Friiik 
v.  Potter,  17  Id.  400;  Eastman  v.  Sanborn,  3 
Allen,  590;  Imjcdh  v.  BUIs,  43  Am.  Dec.  340. 
A  passenger  who  while  looking  for  his  bagijage 
falls  down  a  hatchway,  left  negligently  open 
without  a  light  near  it,  is  not,  at  least  on  de- 
murrer, guilty  of  contributory  negligence:  Bow- 
man V.  Ccd.  S.  N.  Co.,  03  Cal.  181.  Nor  is  ifc 
per  se  negligence  for  a  passenger  to  aliglit  on 
the  side  otlier  than  where  the  platform  is: 
McQuilLin  v.  C,  P.  R.  R.,  1  West  Coast  Rep. 
479. 

Contributon/  nerjligence  a  qitestionfor  the  jury: 
H lines  V.  S.  ' F.  \l-  N.  P.  R,  R.  Co.,  3  West 
Coast  Rep.  99,  101;  Jamison  v.  San  Jos4  etc,  li, 
R.,  .55  Cal.  593 

JKilIi:i3  child  in  tho  street:  See  Roller -r^ 
Sutler  St.  R,  R.,  4  West  Coast  Rep.  G91. 


2187.  Fare,  when  payable. 

Sec.  2187.  A  coimuon  carrier  may  demand  tlic  fare  of  passengers  either  at 
starting  or  at  any  subsequent  time. 

2188.  Ejeclion  of  paHf^cvgers. 

Sec.  2188.  A  passenger  who  refuses  to  pay  his  fare,  or  to  conform  to  any 
la^Yful  regulation  of  the  carrier,  may  be  ejected  from  the  vehicle  by  the  carrier. 
Eut  this  must  be  done  with  as  little  violence  as  possible,  and  at  any  usual  stop- 
piug-place,  or  near  some  dwelling-house. 

Refu  al  to  show  ticket  or  pay  fare:  See  tJaual  stopping-place. — It  has  been  held 
rote  to  Cummoinueidth  v.  Power,  41  Am.  Dec.  that  a  water-tank,  though  a  "usual  stopping- 
470;  and  see  ante,  sec.  487.  place,"  waa  not  such  a  place  as  coatemplated 

371 


'§§  2189-2191 


OBLIGATIONS. 


[Dnr.  Ill,  Part  FV, 


by  such  a  statutoty  pro^nsion,  which  place 
must  be  a  regular  station:  CIdcarjo  tt  /*.  Co.  v. 
Fla:ig,  43  111.  .304. 

Trespassers  not  witliin  ssotion. — Persona 
boarding  a  train  ^vitll  no  intention  of  paying 
their  fare  cannot  claim  the  Ijenclita  of  such  a 
Btatute.  They  may  be  expelled  at  any  place 
where  such  expulsion  Avould  not  result  in  wan- 
ton injiu'y:  Thompson  on  Carriers  of  Passen- 
gers, 377.  See  infra,  last  paragraph  of  this 
note. 

Expulsion  from  a  vessel. — After  the  vessel 
has  put  to  sea  it  is  too  late  to  take  exceptions 
to  the  character  of  a  passenger  or  his  peculiar 
position,  provided  he  violated  no  indexible  rule 
of  the  boat  in  getting  on  board,  unless  he  mis- 
bohaves  during  the  voyage:  Peamon  v.  Dnane, 
4  Wall.  GOo;  i'oppiii  v.  Bniilhwalle,  8  Jur.  S7o. 

Force. — Even  in  the  case  of  a  trespasser,  the 
vise  of  excessive  and  imneccssary  force  is  unjus- 
tifiable, and  the  fact  that  the  plaintiff  was  a 
trespasser  on  the  cars  is  not  a  defen-e.  And 
in  the  California  case,  merely  the  demonstra- 
tion of  force,  without  its  actual  exercise,  suiH- 
cientto  impress  the  plaintiff,  a  trespasser,  with 
the  belief  that  it  would   be  employed,   and 


thereby  compelling  him  to  jump  from  the  car 
while  in  motion,  is  a  state  of  facts  to  be  left  to 
the  jury  to  say  whether,  under  all  tlic  circum- 
stances, the  conduct  of  the  conductor  did  not 
amount  to  compulsion:  Kliiie  v.  C.  P.  U.  R.  Co., 
.37  Cal.  400;  S.  C,  .39  Id.  587.  The  facts  here 
exhibite<l  are  almost  identical  with  those  of 
Rounds  V.  Delaware  etc.  R.  Co.,  04  N.  Y.  J29. 
See  also  Ileal/  v.  Cii]/  Pas-^enger  R.  Co.,  28 
Ohio  St.  23;  Pcnn.  R.  Co.  v.  Vandlvr'r,  42  Pa. 
St.  .303;  lIolmeH  v.  Wihefidd,  12  Allen,  5S0; 
Stat"  V.  Ro^s,  20  N.  J.  L.  220;  Norlh-wesiem 
R.  Co.  v.  Hack,  03  111.  238. 

A  passenger  expelled  from  a  car  is  not  re- 
quired to  use  the  utmost  cai'e  and  caution  to 
avoil  injury;  it  is  sulBcientif  he  uses  such  pru- 
dent care  as  is  reasonable  under  the  circum- 
stances. Whether  it  is  prudent  for  a  passen- 
ger, after  his  expulsion  from  a  car,  during 
which  he  received  an  injury,  to  walk  to  place 
other  than  the  nearest  dwelling-house,  is  a 
question  for  the  jury;  he  is  not  obliged  to  do  so 
under  sec.  487,  ante:  Bland  v.  S.  P.  R.  R.  Co., 
4  West  Coast  Rep.  78. 

Ejecting  p3333n3er  for  not  paying  fare; 
Sec.  487,  and  note. 


2183.    Passenger  wJio  has  not  paid  fare. 

Sec.  2189.  A  passenger  upon  a  railroad  train  who  has  not  paid  his  fai'e  before 
entering  the  train,  if  he  has  been  afforded  an  opportunity  to  do  so,  must,  upon 
demand,  pay  ten  per  cent  in  addition  to  the  regular  rate. 

"  This  is  a  limitation  to  the  exorbitant  and    passenger  has  actually  traveled,  is  unequal,  un- 


disproi)ortionate  percentage  sometimes  exacted, 
and  will  afford  some  protection.  The  provision 
for  this  state  is  new.  'Company  may  demand 
higher  fares  if  paid  in  cars;'  but  this  limits  the 
amount:  Itcdfield  on  Carriers,  etc.,  sec.  483:" 
Comm'ssi')ners'  note. 

Expelling  for  not  paying  the  ten  per  cent. 
Where  the  ticket  rate  is  tendered  and  tlie  pas- 
senger refuses  to  pay  the  excess  demanded,  his 
money  must  be  returned  Ijefore  he  is  ejected,  or 
the  company  will  i>e  liable  for  the  ejection: 
JJland  V.  .S'.  P.  R.  R.  Co.,  53  Cal.  570;  see  same 
case,  4  West  Coast  Rep.  3Sli. 

Fare  paid  from  what  station. — A  rule  re- 
quiring a  passengtr  not  provided  witlt  a  ticket, 
or  failing  to  show  it,  to  pay  f.ire  from  the  sta- 
tion from  which  the  train  ori  ,'inally  started, 
without  reference  to  the  distance  which  the 


reasouiible,  and  void:  Saunders  v.  South-eastern 
R.  Co.,  h.  R.,  2  Q.  B.  Div.  430;  Lom/oi  etc. 
R'll  Co.  V.   Watson,  L.  R.,  3  C.  P.  Dlv.  420. 

Opportunity  to  purchase. — The  better 
doctrine  i^  that  the  company  must,  in  order  to 
charge  train-rates,  alFor  I  tlie  passenger  an  op- 
portunity to  purchase  a  ticket,  by  keeping  the 
ticket-oliico  open  a  reasonable  time  before  the 
depLirtur(3  of  the  trains:  CIdcarjo  etc.  R.  Co.  v. 
p.  rLe,  18  111.  400;  I/liwisetc.  R.Co.  v.  Cnniiivg- 
Jinm,  07  Id.  310;  Jcffersonville  R.  Co.  v.  Rni/rrs, 
33  Ind.  1 10;  State  v.  Chovhi,  7  Iowa,  204;'  Da 
Ln,nran.i  v.  First  Div.  etc.  R.  Co.,  13  Minn. 
40;  and  see  also  Thompson  on  Carriers  of  Pas- 
sengers, 341,  and  Commonwealth  v.  Power,  41 
Am.  Dee.  433. 

Ejocting  peissenger  for  non-payment  ol 
fare:  Sec.  487. 


2190.    Fare  not  payable  after  ejection. 

Sec.  2190.     After  having  ejected  a  passenger,  a  carrier  has  no  right  to  require 
the  payment  of  any  part  of  his  fare. 


Retaining  a  part.— It  lias  been  lield  that 
where  tlie  passenger  tenders  a  certain  sum, 
wiiieh  the  conductor  claims  is  not  sulSeieut, 
the  conductor  may  retain  it  to  cover  the  dis- 


tance already  traveled  and  still  eject  the  pas- 
8en_rer,  althougli  he  tenders  the  full  fare  after 
tiie  train  is  sto[)ped:  lloffbauer  v.  D.  ct  N.  W. 
R.  Co.,  52  Iowa,  342. 


2131.    Carrier's  lien. 

Sec.  2191.  A  common  carrier  has  a  lien  upon  the  luggage  of  a  passenger 
for  the  payment  of  such  fare  as  he  is  entitled  to  from  him.  This  lien  is  regu- 
lated by  the  title  on  liens. 

Lien  on  luggage. — A  carrier  may  retain  the  Bentley,  TA    Ga.    311.     See  general   principle 

luggage  of  a  passenger  cither  to  secure  the  pay-  staged  in  regard  to  lien  for  work  and  labor  per- 

nicnt  of  fare  or  of  charges  for  extra  luggage:  forineil  ab  >ub  personalty,  ]>ost,  sec.  3031. 

H'o//'v.  .S'««!mer.>s,  2  Camp.  031;  Xordemeyery.  Lien  for  ft  eight:  Sec.  2144. 
LoKsdier,  I  Hilt.  409;  Sout/i-west  U.  R.  Co.  v. 

372 


Title  VII.  Cuap.  V.] 


COMMON  CARRIERS. 


§2104 


AFtTICLE  III. 


COMMON   CARUIERS    OF   PROPERTY. 


2194.    Liability  of  inland  carriers  for  loss. 

Si^c.  2194.  Unless  the  consignor  accompanies  the  freight  and  retains  exclu- 
sive control  thereof,  an  inland  common  carrier  of  property  is  liable,  fi'om  the 
time  that  he  accef)ts  until  he  relieves  himself  from  liability-  pursuant  to  sections 
twenty-one  hundred  and  eighteen  to  twenty-one  hundred  and  twenty-two,  for 
the  loss  or  injury  thereof  from  any  cause  whatever,  except: 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  sjjoutaneous  action,  of  the 
property  itself; 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of  this  state; 

3.  The  act  of  the  law;  or, 

4.  Any  irresistible  superhuman  cause. 
In'aiid  carrier  defined:  See  ante,  sec.  2087. 


liinbiiity  as  warehouseman:  See  antt-,  sec 
21-'0. 

Coiisicnor  accompanying. — If  the  owner 
of  cattie  g'lcs  with  tlicui  on  a  rtiihvay,  iiinler 
ail  aj;;ceiiioiit  with  the  railway  company  to 
give  ccrlain  attention  to  the  catt'.c,  t;;e  com- 
ixroy  will  not  be  liable  for  losses  occasionccl  hy 
his  inaticutiou  to  the  duiics  untlertakcn  by 
h.m:  South  Ala.  etc.  li.  ('o.  v.  llcnlein,ijl  Ala. 
GOG;  Toia-r  v.  Utira  etc.  IL  Co.,  7  Hill,  47; 
Glcuson  V.  Goodrich  Traiisportatkm  Co.,  32 
Wij.  83;  liOikrkh  v.  RuUroad  Co.,  7  ^V.  Va. 
64;  lilinnis  Cent.  U.  Co.  v.  I/dl,  L8  111.  400. 
Auiiihcr  common  instance  is  wliere  a  passenger 
rctaicis  tlie  custody  of  his  baggage:  ISee  note, 
sec.  21S'2,  r.itle. 

Comnioii^ement  of  liability. — As  soon  as 
Ml  actual  delivery  to  the  carrier,  his  servants, 
or  s.imc  one  auLhori^ed  to  act  for  him,  is  com- 
plete, the  liability  connnences:  Story  on  Bailni., 

&ec.  c:?_\ 

Tomiinatdon  of  liability:  See  sees.  2118- 
2V22,  (I life,  and  notes. 

E;-:;c3tion3  t;j  liability  as  insurers. — 
Giibci.  i.  Inherent  defects.— This  rule  in- 
cudes decay  of  fruits,  the  diminution,  leakage, 
or  evajioraiion  of  li{]uids,  and  the  spontaneous 
combustion  of  ).oods.  In  al)  these  eases  where 
the  negligence  of  the  carrier  docs  not  co-oper- 
ate in  tho  loris,  ho  wi!l  be  excused:  L:;wson  on 
Cuntiactjcf  Carriers,  l."j;  Story  on  Bailni.,  492a; 
3  Keni's  Com.  200-.'>01;  llaHtlii-is  v.  Pep yer, 
11  Pick.  41 ;  Angell  on  Carriers,  sec.  21 1.  The 
cariier  is  liable  for  the  proper  storage,  and 
must  f'  How  directions  in  that  rcspcci::  Angell 
en  C  ir.icrs,  sec.  212.  Live  aninals  ai'e  also 
included  in  this  exception  to  whatever  extent 
they  i.;jure  themselves  or  one  another  impelled 
by  Lh'.>ir  inherent  vices  and  propensities:  An- 
gell on  Carriers,  sec.  2' 4.  In  this  case,  as  be- 
fore, no  negligence  of  the  carrier  must  inter- 
vene: Mich.  It.  Co.  V.  McDoiioiiijh,  21  Mich. 
IG.'j;  Kaiixan  Par.  li.  Co.  v.  Ueijuolth.  8  Kas. 
623;  Cliirb-  v.  Rochester  etc.  R.  Co.,  14  N.  Y. 
570;  O/iio  etc.  R.  Co.  v.  Dunbar,  20  111  G23; 
Er^in.i  V.  Fdchhurij  R.  Co.,  Ill  iMass.  141;  //ar- 
ris v.  yorl/ieru  etc.  R.  Co.,  20  N.  V.  232;  Pa-t 
Ten iK-s-scr  etc.  R.  V.  U'/iit'/e,  27  Oa.  5.35;  U'eUh 
v.  Pittstiiirj  etc.  R.  Co.,  10  ()!uo  St.  G3;  Lawson 
on  Contracts  of  Carriers,  Ki. 

.SV  liiKi  i-rl^liahh'  ar/iile-:  See  hifrn,9.ec.  2201. 

Subci.  2.     Public  enemy  is  one  witli  whom 

tho  nation  or  slate  is  at  o[)en  war,  and  pirati'S 


the  enemies  of  all  mankind:  Story  on  Bailm., 
sees.  512,  52G;  Angell  on  Carriers,  sec.  200;  3 
Kent's  Com.  21G,  209;  Pic/cervig  v.  B  inlay, 
2  Roll.  Abr.  248.  But  a  loss  by  thieves  or 
rolibcrs:  Coijga  v.  Bernard,  25  Ld.  Raym.  909; 
Angell  on  Carriers,  sec.  200;  Boon  v.  /he  Bel- 
fast, 40  Ala.  184;  '//all  v.  Ckenei/,  30  N.  II.  2(5; 
or  by  embezzlement:  Lawson  on  Contracts  of 
Carriers,  15;  or  by  rioters  or  insurgents:  Cog  ih 
v.  Bcruarl,  supra;  Forward  v.  Piltard,  1  T. 
R.  27;  Story  on  Bailm.,  sec.  o2G;  unless  such 
insurrection  assumes  the  magnitude  of  an  in- 
ternational war,  as  in  the  case  of  the  1  ite  civil 
war  in  this  country:  Ilulharl  v.  /lardcn  Ex- 
press  Co.,  10  R.  I.  251;  Smith  v.  Braze'toii,  1 
Heisk.  414;  Leiris  w  l.udirlcl;  Q  Col.  3S0. 

Subd.  3.  Act  of  lav/. — \Vh«>n  go :)ds  are 
attached  in  the  hands  of  the  carrier,  he  cannot 
give  them  nj)  to  the  consignee  while  the  attach- 
ment is  pending:  S.'i'rs  v.  JJiivis,  1  Black.  101; 
or  when  they  :re  taken  out  of  his  possession 
by  any  legal  process:  Stiles  v.  Davis,  supra; 
Vail  \VirJJe  v.  U.  S.  Mail  Co.,  37  Barb.  122; 
Burton  v.  WilLluson,  18  Vt.  18G. 

But  when  such  seizure  is  made,  the  carrier 
must  immediately  notify  the  consignor  of  that 
fact,  and  must  assure  1  imself  that  the  procccil- 
ings  are  regular;  but  he  is  not  bound  to  as<ert 
the  title  of  tlie  bailor  or  to  follow  the  good;?: 
Ohio  etc.  R.  Co.  v.  Yohe,  51  Id.  181;  /.Hr^'u  v. 
Hudson  River  R.  Co.,  35  Barb.  ISS;  niirni  v. 
Hudson  River  R.  Co.,  33  N.  Y.  403;  Scrauloii 
v.  Farmers'  Baid;  24  I.l.  424. 

Sabd.  4.  Any  irrG3istibl3  superhuman 
cauriG,  or  as  it  is  usually  termed  in  the  books, 
"  act  of  CJod." 

DistiiKjuis/icd from  inevitable  accident,  which 
doeo  not  excuse  carrier  if  ."ruch  accident  is  of 
humnn  origin:  Trent  <0  dJerse;/  Nar.  Co.  v. 
U'ooil,  4  bougl.  200;  McArthitr  v.  Sears,  21 
Wend.  193;  /la-js  v.  Kenned)/.  41  Pa.  Sc. 
378;  ^/rrritt  v.  Ear!e,  31  Barb.  3S;  29  N.  Y. 
115;  Mr/lcnrif  v.  Railroad  d.  4  llarr.  (Del.) 
413.  A  carrier  is  liable  in  case  of  fire,  whieli 
although  in  no  way  attributable  to  hi.^  own  neg- 
ligence, yet  he  cannot  prove  to  have  beeu 
originated  by  an  act  of  God,  /.  e.,  lightning: 
For  ward  v.  'PiUnrd,  1  T.  R.  27;  Lcdvmuu  v. 
CrinveU,  5  FSosw.  G25:  M<'Ore  v.  M'-ch.  Cent.  R. 
R.  Co.  3  Midi.  23;  Anr/!-  v.  -l/;.s->-.  rt  Mo.  R. 
Co.  18  Iowa,  555;  I^orter  v.  C/iica'jo  <i-  Rock  I. 
R.  Co.  2)  Id.  407;  (''.c  v.  Pe'er.sojf,  33  Ala.  G03. 
This  li  biiicy  is  limited  in  case  of  vessels  by 
U.  S.  R.  S.,  sec.  42.02;  see  also  PcUton  v.  Mu' 


ou  the  high  scras,  who  are  universally  treated  as    grulli,  31  Am.  Ucc.  ob2,  and  uote. 

373 


§§  2io:)-2ina 


OBLIGATIONS. 


[Div.  Ill,  Pakt  IV, 


Proximate  cnwr. — To  relieve  a  carrier  from 
resjioissiljility  on  tlio  grouiid  tliat  the  loss  was 
caused  liy  an  act  of  (iml,  it  imist  appear  lliat 
siicli  act  was  the  imuiodiate  and  proximate 
cause  of  the  injury:  Sproni  v.  KAlar,  4  Stew. 
&  i'.  nS2;  Xvv:  nnmswirk  d:  Co.  v.  7V>/-.s,  24 
N.  J.  li.  0'J7;  Mirliaelx  v.  New  York  Ci'idral  R. 
Co.,  :>0  N.  Y.  5G4;  Railroad  Co.  v.  Rrcvrs,  10 
Wal!.  17U;  Me.rritt  v.  lJar!e,  31  Barb.  38;  Law- 
fcon  on  Cuutracts  of  Carriers,  10. 

Hi'inote  vcjl'/rffiirr. — Antecedent  negligence, 
inisi'easance,  or  nialfeaf-amc,  operating  as  a  re- 
mote cause  of  t!ic  los>,  will  not  preclude  the 
carrier  fi'om  exeuiption  from  liahility  for  such 
loss  if  it  occurs  proximately  from  the  a'^t  of 
Ciod;    bat    any  contributory,    concuri-eut,    or 


immediate  default  or  negligence  will:  16  Cent. 
L.  J.,  p.  IS.j;  see  also  Lawsou  on  Contracts  of 
Carriers,  11,  12. 

Pre.srrvat'on  of  damaged  gods. — It  is  the 
duty  of  the  carrier  to  preserve  the  goods 
damaged  by  the  act  of  God,  at  least  such  por- 
tion of  them  as  retain  commercial  value:  Craig 
V.  Childres.^,  Peck,  270;  Day  v.  Rhllaj,  16  Vt. 
48;  Railroad  v.  Rcevrs,  10  Wall.  17G;  A'as'iville 
It.  Co.  V.  Dav'd,  G  Heislc.  2G1;  Chonteniix  v. 
Leech,  10  Pa.  St.  224;  T/i,',  Jlagoie  Hammond, 
9  Wall.  435.  At  all  events,  the  carrier  will  be 
liable  for  the  proportion  <>l  damage  resulting 
from  his  own  lack  of  care:  Faulkner  v,  Wright, 
Kice,  107. 


2105.    IVhen  exemptions  do  not  apply. 

Seo.  2195.     A  common  carrier  is  liable,  even  in  the  cases  excepted  by  the 
List  section,  if  bis  ordinary  negligence  exposes  the  property  to  the  cause  of  the 
loss. 
See  notes  to  sec.  2194,  ante. 

Iil86.    LiahiUlij for  delay. 

Sec.  219G.  A  common  carrier  is  liable  for  delay  only  when  it  is  caused  by 
his  want  of  ordinary  care  and  diligence.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  251;  took  effect  July  1,  1874.] 

See  notes  to  sec.  2194,  ante,  paragraph  "Re-     solely:  Empire  Trans.  Co.  v.    Wallace,  GS  Pa. 


mote  Negligence,"  and  sec.  2172,  ante;  Lawsou 
on  Contracts  of  Carriers,  sec.  187. 

Influx  of  business.— If  a  railroad  is  well 
equipped,  and  a  delay  is  occasioned  by  an  un- 
usual influx  of  business,  bey<md  the  immediate 
capacity  of  the  road,  and  goods  are  transported 
as  expeditiously  as  possible  in  the  then  condi- 
tion of  the  road  and  the  business,  the  railroad 
is  not  liable  for  a  delay:  Wilbert  v.  New  York 
P.,  19  Barb.  3G;  Galena  P.  v.  /.ae,  18  lil.  4S8; 
Thaijer  v.  Bur  (hard,  99  Mass.  50S;  see  also 
Con'ier  v.  Hudson  Riv.  P.,  G  Duer,  375,  and 
Jlelliwell  V.  Grand  Trnuk  R.  of  C,  10  Biss. 
170,  where  it  was  held  to  be  the  duty  of  the 
carrier  to  inform  the  shipper  of  such  a  condi- 
tion (if  affairs,  if  he  knew  or  could  reasonably 
Lave  known  it. 

Weather. — And  the  carrier  is  not  bound  to 


St.  302.  Nor  is  he  liable  for  delay  caused 
solely  by  the  recklessness  or  carelessness  of 
another  party:  Conger  v.  Und<on  Pluer  R.  Co., 
G  Duer,  375;  Living.-iton  v.  N.  Y.  C.  <£•  //.  R. 
Co..  5  Hun,  5G2. 

Strikers. — A  common  carrier  is  excused  f>>r 
delay  in  the  carriage  of  goods  where  the  delay 
is  caused  solely  by  armed  violence  of  strikers, 
who  were  employees  recently  discharged  from 
the  carrier's  employment:  P.  Ft.  W.  ih  C.  R. 
Co.  V.  Hazm,  84  111.  3G;  P.  C.  d:  St.  L.  R.  W. 
Co.  V.  HoUovv'll,  05  lud.  ISS.  See,  on  the 
other  hand.  People  v.  N.  Y.  Cent.  P.  P.  Co.,  27 
Ail).  L.  J.  105. 

Negligsnoe. — Carrier  held  liable  where  en- 
gineers refused  to  work:  Blarkstock  v.  Neio 
York  P.,  1  Bosw.  77;  20  N.  Y.  43;  see  also 
Peck  v.  IFce/js,  34  Conn.  145;  Angell  on  Car- 


use  extraordinary  exertions  or  extra  expense  to     Hers,  sees.  283,  291;  and  see  Read  v.  St.  L.  K, 
surmount    obstacles    caused    by    the   weather     C  <1;^.  7'.  Co.,  60  Mo.  199. 

2197.  Liability  of  marine  carriers. 

Sec.  2197.     A  marine  carrier  is  liable  in  like  manner  as  an  inland  carrier, 
except  for  loss  or  injury  caused  by  the  perils  of  the  sea  or  fire. 

2198.  Same. 

Sec.  2193.     The  liability  of  a  common  carrier  by  sea  is  further  regulated  by 
acts  of  congress. 
See  also  sec.  20S8. 

See  9  U.  S.  Stats.  635;  R.  S.,  sees.  42S2  et  seq. 
General  average:  See  sees.  2143  et  seq. 

2199.  Perils  of  sea,  what. 

Sec  2199.     Perils  of  the  sea  are  from: 

1.  Storms  and  waves; 

2.  Rocks,  shoals,  and  rapids; 

3.  Other  obstacles,  though  of  human  oi'i"an; 

4.  Changes  of  climate; 

374 


Title  VII,  Chap.  V.]  COMMON  CARRIERS.  §§  2200-2203 

6.  The  confinement  necessary  at  sea; 

6.  Animals  peculiar  to  the  sea;  and, 

7.  All  other  dangers  peculiar  to  tbe  sea, 

Perils   of  the  sea.— "Angell   on  Carriers,  arising  from  the  wind  and  weather,  the  state 

sees.  llJG.  216,  and  the  case  oi  Amer  v.  Ast($-,  of  the  ocean,  and  its  rocks  and  shores:'  I'ars. 

6  Cow.   20(),    particuhirly  referred   to  in   sec.  Merc.  Law,  44o:"  Commissioners' note. 

170,  Id.     The  whole  question  discussed  in  sec-  See  also  excellent  interpretations  of  "perils 

tions  named,  xvy)ra.     In   its  connection   with  of  the  sea"  and  synonymous  terms,  witli  vo- 

niarino  insurance,  this  question  is  discussed  in  lumiuous  citations  in  Lawson  on  Contracts  of 

2  Pars.  Marit.  Law,  p.  219  et  seq.     'By  this  Carriers,  229  ctseq.,  and  extensive  note  to  Van 

phrase  "  perils  of  the  sea  "is  meantall  the  perils  Horn  v.  Taylor,  41  Am.  Dec.  2SL 
incident   to  navigation,   and   especially   those 

2200.    Liinitations  of  liability  ivithoui  nofice. 

Skc.  22C0.  A  common  carrier  of  gold,  silver,  platiua,  or  precious  stones,  or 
of  imitations  thereof,  in  a  manufactured  or  unmanufactured  state;  of  time- 
pieces of  any  description;  of  negotiable  paper  or  other  valuable  -writings;  of 
pictures,  glass,  or  chiuaware;  of  statuary,  silk,  or  laces;  or  of  plated  ware  of 
an}^  kind,  is  not  liable  for  more  than  fifty  dollars  upon  the  loss  or  injury  of  any 
one  package  of  such  articles,  unless  he  has  notice,  upon  his  receipt  thereof,  by 
mark  upon  the  package  or  otherwise,  of  the  nature  of  the  freight;  nor  is  such 
carrier  liable  upon  any  package  carried  for  more  than  the  value  of  the  articles 
named  in  the  receipt  or  the  bill  of  lading.  \Ame)idmnil,  apjiroved  March  30, 
1874;  AmeixlmeiUs  1873-4,  251;  took  effect  Juhj  1,  1874.  J 

22C1.    Ddivery  cf freight  beyond  usual  route. 

Sec.  2201.  If  a  common  carrier  accepts  fi-eight  for  a  place  beyond  his  usual 
route,  he  must,  unless  he  stipulates  otherv;ise,  deliver  it  at  the  end  of  his  route 
in  that  direction  to  some  other  competent  carrier  carrying  to  the  place  of 
address,  or  counected  with  those  who  thus  carry,  and  his  liability  ceases  upon 
making  such  delivery. 

Delivery  to  comiecting  carrier— It  is  well  pany  who  receives  and  books  the  goods  lialjla 

Betlled  tliat  the  contract  of  a  corporation  to  to  tlie  end  of  the  route.     The  American  cases 

carry  Ijcyond  its  own  line  is  not  ulli-a  virrit.  are  collected  in  Lawson  on  Contracts  of  Car- 

Under  such  contract,  all  connecting  carriers  he-  riurs,  ood.    See  I'ercmi,  v.  C.  P.  It.  //.,  4  West 

conic  his  agents,  for  vvliose  negligences  and  de-  Coast  Rep.  .372,  where  a  carrier  contracting  to 

faults  he  is  rcbpousible:  lludiield  on  Carriers,  carry  goods  licyond  the  terminus  of  his  line  was 

sees.    190-i97;  Lriee  on   Ultra  Vires,   (Jretn's  held  liable  for  a  loss  occurring  on  a  connecting 

ed.,  app.  3,  p.  G7:i;  Wheeler  v.  S.  F.  tfc  11.  R.  V».,  line. 

31  Cal,  4(3.     In  tlie  absence  of  this  section  the  Liniit-ii§  liability. — Mere  delirery  of  a  re- 

rect  ipt  of  freight  for  the  wliole  distance  would  ceipt  does  not  make  its  terms  conclusive  up»a 

be  jiririiuj'ucic  evidence  of  a  through  contract:  th<;  shii>i)er:   P<reir(t  v.  t'.  P.  J'.  11.,  supra. 

Lawson  on  Contracts  of  CaiTiers,  oGl;  and  see  Dsiivery  to  competent  couaectins  car- 

infra.  rier  relieves  from  liability:  JJrenUack  v.  Cat.  P. 

American    rale. — The    great    majority    of  /»'.  /i'.  ^  o. ,  57  Cal  4iJ2. 

American    <lecisions    have   concurred  in   over-  Delivery  iu  general:  See  ojrfe,  sees.  2118, 

ruiiag  the  English  doctrine  of  holding  the  com-  2119. 

2202.  Proof  to  be  given  in  case  of  loss. 

Sec.  22U2.  If  freight  addressed  to  a  place  beyond  the  usual  route  of  the  com- 
mon carrier  who  first  received  it  is  lost  or  injured,  he  must,  within  a  reasonable 
time  after  demand,  give  satisfactory  proof  to  the  consignor  that  the  loss  or 
injury  did  not  occur  while  it  was  iu  his  charge,  or  he  will  be  himself  liable 
therefor. 

"This  ssctfoii  is  intended  to  save  the  con-     is  liable,  tlie  fair  presumption  being  against 
Bignor  Iroin  the   risk   of  mistaken  actions,  by     him:"  Commissioners' note, 
com^jelu  jg  the  carrier  to  give  proof  that  unotlier 

2203.  Carrier's  .services,  other  than  carriage  and  delivery. 

Sec  22U3.     In  res[)ect  to  any  service  rendered  by  a  common  carrier  about 
freight,  other  than    its  carriage  and    delivery,  his  rights  and  obligations  are  ■ 
defined  by  the  titles  on  deposit  and  service. 

375 


§§  2201-2209  OBLIGATIONS.  [Div.  Ill,  Tart  IV, 

Deposit:  ?,ee  ante,  sees.  181.3  etseq.  Jaci-w/i  v.-S'ac.  F. /?. /?.  Ta,  2:?  Cal.2(38;  Srkmidt 

Sir^rioe:  See  a/ite,  sees.  lOiJo  ft  sei].  v.  Bloo'l,  24  Am.    Dec.  1-13,  uoLe  liG;  ami  see 

Wareliousemau,    liability    of    carrier    as:     a«<e,  sec.  2120. 

2204.    Sale  of  perisJiable  pmjyiniii  for  fre'mhiag''. 

Sec.  2204.  If,  from  an}'  causo  other  tbuu  want  of  ordinary  care  and  diligence 
on  liis  part,  a  common  carrier  i.s  unable  to  deliver  perishable  property  trans- 
ported 1)3'  him,  and  collect  his  charg-es  thereon,  he  may  cause  the  j^roperty  to 
be  sold  in  open  market,  to  satisfy  his  lien  for  freightage.  [Ni'W  Hfctiony  approved 
March  30,  1874;  Amendments  1873—4,  251;  look  effect  Jab/  1,  1874.) 

At  common  law. — A  cairier  lias  no  riglit  if  lie  retain  the  goods  heciinnot  charge  storage: 

at  common  law  to  SfU  gooils  to  enforce  his  lien:  Somi'K  v.  Br.tlsh  Empire  >"^l(ii>jiiiiij  Co.,  8  11.  L. 

Bri(]<i^  V.  Boston  li.,  G  Allen,  24G;   Staji/es  v.  Gas.  .3:^>8. 

Bradley,  23   Conn.   1G7;    Uvnt  v.  IJa^bK,  24  Over ohargmg  for  fare  or  freightage  a  mis- 

Me.  33'J;  Saltus  v.  EoertU,  20  Wend.  2G7.    And  dSuicaiior;  i'un.  Code.  sec.  bio. 

ARTICLE  IV. 

COMMON   CAKRIEKS   OF   MESS.\GE3, 

2207.  Order  of  fransmii<sion  of  telegraphic  mesmges. 

Skc.  2207.  A  carrier  of  messages  by  telegraph  must,  if  it  is  practicable, 
transmit  every  such  message  immediately  upon  its  receipt.  But  if  this  is  not 
practicable,  and  several  messages  accumulate  upon  his  hands,  he  must  transmit 
them  in  the  following  order: 

1.  Messages  from  public  agents  of  the  United  States  or  of  this  state,  on 
public  business; 

2.  Messages  intended  in  good  faith  for  immediate  publication  in  newsj)aper3, 
and  not  for  any  secret  use; 

8.  Messages  giving  information  relating  to  the  sickness  or  death  of  any 
person; 

4.  Other  messages  in  the  order  in  which  they  were  received. 

The  liability  of  telegraph  company  was  52Cal.  280,  where  the  plaintiff  recovered  money 
held,  in  Parbi  v.  Alta  fed.  Tvl.  Co.,  13  C:il.  pul  O'lt  on  a  false  messa.^e  sent  Ijy  the  defcnJ- 
422,  to  be  that  of  a  common  carrier;  but  under    an Vs  emnlovee. 

sections  21G2  and  2163  the  liability  has  been         C^rriirs  of  messagas:  See  n;i/e,  sees.  2tGI, 
changed — such  acompany  is  not  a  common  car-     21G2. 

rier:  Hart  v.  Western  U.  7'.  Co.,  G  West  Coast         Ne^Ioot  or  poitpoa'^mant  of  mG33ag33  a 
Hep.  193.     See  Bank  of  Cal.  v.  W.  U.  T.  Co.,    misaeoieaaor;  Pen.  Code,  sec.  G3S. 

2208.  Order  in  other  cases. 

Sec.  2208.     A  common  carrier  of  messages^  otherwise  than   by  telegraph, 

must  transmit  messages  in  the  order  in  which  he  raceives  them,  e.^cept  messx^jes 

from  agents  of  the  United  States  or  of  this  state,  on  public  basiaes.^,  to  whiijii 

he  must  always  give  priority.      But  he  may  fi.^  upon  certain   times  for  the 

simultaneous  transmission  of  messages  previously  received. 

"This  follows  the  rale  governing  commDa  in  time,  price,  or  otherwise,  expres=;ly  author- 
carriers  generally,  and  makes  a  proper  excep-  ize  1  by  statuto;  and  section  2171,  nu.'i',  to  give 
tion,  w'.iich  is  usually  provid-jd  for  by  statute,  priifer^ince  to  the  United  Seated  an!  t!iis  state 
Carrier  required  by  section  21G0,  nut",  to  ac-  in  time,  and  may  do  it  in  p -ioe.  See  aiso 
cept  and  carry  whatever  of  tha  kind  he  car-  note-?  to  the  sections  ret'erred  to:  "  C  i.nniis- 
ries  if  oiTered  at  a  reasonable  time  and  place;  si  )ucr3'  note. 
by  section  2170,  a/iie,  not  to  give   preference         DaLvery  of  m333a3;33:  See  sec.  2U)1,  aute. 

2203.    Damages  when  message  is  refuted  or  postponed. 

Sec.  2209.     Every  person  whose  message  is  refused  or  postponed,  contrary 

to  the  provisions  of  this  chapter,  is  entitled  to  recover  from  the  carrier  his 

actual  damages,  and  fifty  dollars  in  addition  thereto. 

"This  n3W  provision  is  needed  to  protect     to  iiavc  caused  them  pecuniary  damage;  "  Com* 
tlio  iigiits  i>t  parties  wiio  ai'e  seriously  annoyed     nu;^iouer3'  note, 
by  dciays  which,  uevertlieless,  cannot  be  shown 

370 


Title  VIII,  Chap.  I.] 


TRUSTS  IN  GENERAL, 


§§  221^2218 


TITLE  YIIL 

Chapter  I.     Trusts  in  General 2215 

II.     Trusts  for  the  Benefit  of  Third  Persons 2250 

must  be  borne  in  mind  that  tlie  latter  relates 


The  follo\\ing  note  by  tlie  commissioners 
throws  light  ni'on  their  design  in  dividmj;  tiie 
enbject  of  trust  in  the  code:  "  Tliis  title  sliouhl 
be  read  in  connection  with  the  title  on  'uses 
and  trusts,'  sees.   847-871,  inclusive,    and   it 


to  real  property  only,  and  'uses  and  trusts' 
are  treated  as  estates.  In  tliis  title  'trusts* 
are  considered  as  relating  toproiJcrty  generally, 
and  treated  in  the  light  of  obligatious. " 


CHAPTER  I. 
TRUSTS  IN  GENERAL. 

Article  I.    Natltie  and  Creation  of  a  Trust 2215 

II.     Oni.iGATioNS  OF  Trustees 2228 

III.     Obligations  of  Third  Persons 2243 

ARTICLE  I. 

NATURE  AND    CREATION   OF   A   TRUST. 

2215.  Trusts  classified: 

Sec.  2215.     A  trust  is  either: 

1.  Yoluntavy;  or, 

2.  luvoluutary. 

Trusts  clasGified. — In  the  above  classifica- 
tion, the  code  commissioners  upc  the  terms 
"voluntary"  and  "involuntary"  in  place  of 
"cxnrets"  and  "implied,  constructive,  or  re- 
6ulti:ig  "  trusts.  They  eay:  "  When  a  trust  is 
involuntaiy;  or  in  other  words,  \vhen  a  trust 
is  cnated  by  implication,  result,  or  construc- 
tion of  law,  from  tiie  acts  of  the  parties,  thcj' 
will  lie  held  by  the  law  to  the  performance  of 
the  trust,  whether  they  are  willing  or  unwill- 
ing to  accept  the  situation — tliat  is,  when  a 
tiust  is  raised  by  law  and  thrust  upon  the 
conscience  of  a  party  as  the  result  or  construc- 
tion to  be  put  U)ion  his  own  acts,  in  order  to 
do  complete  justice,  the  acceptance  or  refusal 

2216.  Voluntary  trust,  what. 

Sec.  221G.     A  voluntar}^  trust  is  an  obligation  arising  out  of  a  personal  con- 
fidence reposed  in,  and  voluntarily  accepted  by,  one  for  the  benefit  of  another. 
Voluntary  trust  defined. — The  following     and   it  will    be  found    by   reference    to    the 


of  the  party  to  be  charged  witli  tlie  trust  can 
not  alter  his  legal  or  e(|uitable  liability  to  act 
as  trustee,  and  to  do  all  tliatis  requircil  of  him 
to  execute  the  trust.  To  this  extent  it  will  be 
seen  that  a  voluntary  trust  corresponds  to  ex- 
press trusts,  and  involuntary  tiusts  to  implied, 
resulting,  and  constructive  trusts,  as  hereto- 
fore (lelined  by  Lewin,  Hill,  Perry,  and  other 
writers  on  the  stibjeet  of  trusts." 

For  a  judicial  interpretation  of  the  code  pro- 
visions with  respect  to  what  distinction  is  pre- 
served by  it  Ijetween  express  and  implied  or 
resulting  trusts,  see  Estate  of  Uiiiddey,  58  Cal. 
457,  4S3. 


numerous  eases  cited  in  the  course  of  this  title 
tiiat  little  or  no  distinction  is  made  between 
trxistues,  strictly  so  called,  and  any  other  per- 
sons who  accept  tlie  [lei'sonal  confidence  of 
another.  'For  the  bcnclit  of  anotlicr.'  No 
one  can  be  a  trustee  for  himself.  ]>nt  a  trust 
created  for  the  joint  benefit  of  several  persons 
may  be  held  by  one  of  tliem:  Sec  ox  parte 
Claltoii,  17  Jur.  flSS.  And  a  trust  has  been 
sustained  for  tlie  benefit  of  a  liorse:  PettingcUl 
V.  Peitiwjcill,  11  L.  J.  Ch.  17G." 


explanation  of  the  reason  for  this  definition  is 
given  by  tiie  commissioners:  "A  trust  Sidelined 
by  Scory  as  an  cquitabl»  title  to  property: 
Story's  E(].  Jur.,  sec.  904.  But  this  i^a  very 
narrow  dulinition.  So  far  as  his  tibligations 
are  concerned,  a  technical  trustee  stands  upon 
the  same  footing  with  a  confidential  agent  or 
adviser,  u  gi.ardian,  etc.,  and  there  is  little 
diO'erence,  so  far  as  business  relations  arc  con- 
cerned, between  his  position  and  that  of  a 
husband,  wife,  parent,  or  attorney.  The  eon- 
iidenee  reposed  is  the  essence  of  the  relation, 

2217.  Ltvdlinilary  trust,  what. 

Sec.  2217.     An  involuntary  trust  is  one  which  is  created  by  operation  of  law. 
Involuntary  tusts. — Examples  of  tlii.s  chss     the  note  to  section  So.'J,  ante,  on  resulting  trusts, 
of  trusts  in  ngard  to  realty  will  be  found  in     And  see,  generally,  sections  2223,  2224. 

2218.  Parlirs  to  the  contract. 

Sec  2218.     The  person  whose  confidence  creates  a  trust  is  called  the  trustor; 

377 


15  2210-2223  OBLIGATIONS.  t^^iv.  Ill,  Paet  IV, 

the  person  in  whom  the  confidence  is  reposed  is  called  the  trustee;  and  the 
person  for  Avliose  benefit  the  trust  is  created  is  called  the  beneficiary. 

The   following   reason  for  the  names  of  the  (see  Webster's  Dictionary,  where  it  is  S])elled 

finrties  .alio\c  used  is  given  by  the  commission-  'truster'),    and    is  entirely    api)lic.J)lo    to    tli9 

era:     '"Lewis,  Iliil,  ami  other  writers  call  the  person  who  creates  a  trust.     The  wonl   'bcne- 

orcator  of  the  trust  the  'settlor,' a  very  objec-  iiciary'  is   recommended  by  Story's  Eq,  Jur., 

tionable   word.     Trustor  is  aa  English  Avord  aac.  '62i,  in  jylaMe  oi  cestui  que  trust." 

2219.  Wliat  confifilutes  one  a  trustee. 

Sec.  2'219.  Every  one  who  voluntarily  assumes  a  relation  of  personal  con- 
fidence with  another  is  deemed  a  trustee,  within  the  meaning  of  this  chapter, 
not  only  as  to  the  person  who  reposes  such  confidence,  but  also  as  to  all  persons 
of  whose  affairs  he  thus  acquires  information  which  was  given  to  such  person  in 
the  like  confidence,  or  over  whose  affairs  he,  by  such  confidence,  obtains  any 
control. 

2220.  For  what  purpose  a  trust  may  be  created. 

Sec.  2220.     A  trust  may  be  created  for  any  purpose  for  which  a  contract  may 

lawfully  be  made,  except  as  otherwise  prescribed  by  the  titles  on  uses  and  trusts 

and  on  transfers. 

"The  titles  referred  to  relate  to  real  prop-  interested  therein  bear  toward  ench  other,  or 

€rty  only.     This  title   has  reference  alike  to  the  obligations  which  arise  from  such  relations:" 

reiil  and  personal  propertj',  and  considers  more  Commissioners'  note, 
particularly  the   relations  which   the  persons 

2221.  Voluntary  trust,  how  created  as  to  trustor. 

Sec.  2221.  Subject  to  the  provisions  of  section  eight  hundred  and  fifty-two, 
a  voluntary  trust  is  created,  as  to  the  trustor  and  beneficiary',  by  any  words 
or  acts  of  the  trustor  indicating,  with  reasonable  certainty: 

1.  An  intention  on  the  part  of  the  trustor  to  create  a  trust;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  tnist. 

Creation  cf  trust  as  to  trustor. — To  the  pose  thereof,  and  the  persons  beneficially  inter- 
validity  of  a  trust  affecting  realty,  a  writing  is  ested  should  be  clearly  ascertained,  see  1  Perry 
necessary  except  as  to  such  trusts  as  are  ere-  on  Trusts,  od  ed.,  sec.  8G;  '2  I'omcroy's  Eq., 
ated  by  operation  of  law:  See  sec.  852,  ami  note,  sees.  1003,  1016.  Likewise,  while  it  is  essential 
a.tt''.  Bi'.t  trusts  of  personal  props'rty  may  be  tliat  the  intention  to  create  tlu;  trust  be  c'ear, 
created  verbally :  SlU'c]/  v.  Ilodijdon,  52  Oal.  no  )>recise  form  of  words  is  necessary:  2  Pome- 
SGo;  Eaton  v.  Cook,  25  N.  J.  Eq.  55;  Clanp  v.  roy's  E  (.,  sec.  1009,  and  note. 
Emery,  98  111.  52;j;  DavU  v.  Co'nirn,  123  Mass.  Precatory  trusts. — See  a  valuable  collection 
377;  C'hace  v.  (Jhnpin,  30  Id.  12S;  I'ay  v.  ."^im-  of  decisions  on  this  branch  of  tlij  subject  in  the 
onons,  11  H.  I.  2GG;  Days.  RqIIi,  IS  N.  Y.  443;  note  to  Harrison  v.  Harrison's  Atlnix,  44  Am. 
2  Pomeroy's  Eq.,  sec.  1008.     This  section  liys  Dec.  ."57.']. 

dawn  a  rule  of  evidence;  it  does  not  puriiort  to         Creation  of  involuntary  trust:  See  sees, 

limit  the  cases  in  which  a  trust  may  be  created:  222  >,  2221. 
Estate  of  Hiaddcn,  58  Cal.  457,  481.  Tru.3t3  for  beueSt  of  third  persons:  See 

That  the  subject-ujatter  of  the  trust,  the  pur-  sec.  2251,  pO'it. 

2222.  IIoio  created  as  to  trustee. 

Sec  2222.  Subject  to  the  provisions  of  section  eight  hundred  and  fifty-two, 
a  voluntary  trust  is  created,  as  to  the  trustee,  by  any  words  or  acts  of  his 
indicating,  with  reasonable  certainty: 

1.  His  acceptance  of  the  trust,  or  his  acknowledgment,  made  upon  sufficient 
consideration,  of  its  existence;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust. 

Creation  of  trust:  See  remarks  in  note  to  Trusts,  sees.  259  et  seq.,  for  a  full  discussion 
last  section.  of  this  subject. 

Acceptance  of  trust:    See    1    Perry  on 

2223.  Involuntary  trustee,  who  is. 

Sec.  2223.  One  who  wrongfully  detains  a  thing  is  an  involuntary  trustee 
thereof  for  the  benefit  of  the  owner. 

378 


Title  VIII,  Chap.  I.] 


THUSTS  IN  GEXERAL. 


§§  2224-2229 


Involuntary  trustee. — The  corle  conimis- 
Bioiiers,  anplying  tlie  principle  of  the  next 
section,  sr.y  tliab  "  tliis  is  a  familiar  jirinci- 
ple  of  eijuity  in  ca^e.i  of  title  gained  t!iron';'i 
fraud,  mistake,  undue  iufluence.  or  the  viola- 
tion of  a  trust;"  and  conclude:  " Tiicre  seems 
to  bo  no  rca^ion  for  refusing  to  extend  tlie  ru!c 
to  all  ca^ea  of  \vron<_;fuI  detention."  A  judg- 
ment debtor  rcmai^u.ig  in  posseJiaiou  of  the 
premises  afrer  shoiff's  sale  is  a  trustee  for  the 
jitirchaser  of  the  rents  and  profics  collected: 
Harris  v.  liPi/nolch,  13  Cal.  514;  see  also  Krpiitz 
V.  Lir'uKjdo:),  15  Id.  3H.  A  jdedgee  of  a  note 
and  mort<.ja2e  is  trustee  of  the  excess  above 
what  ii  necessary  to  extinguish  the  debt:  Poiice 
V.  2I(:El(>]/,  47  Id.  155.     And  this  trust  charan- 


tcr  will  fi.llow  and  be  stamped  upon  land  into 
w'licli  the  inonoy  is  conver'ed:  Id. 

Graat333  of  publij  lands  ai  tntstees 

One  .niplication  of  t!ie  principle  of  this  section 
may  bo  found  in  a  person's  o'ltainiug  from  the 
government  a  patent  for  lands  to  which  others 
arc  entitled.  In  sucli  case  the  law  raises  a  trust 
in  favor  of  one  really  in  interest:  See  ]Vi!son 
v.  Cad-o,  ?,\  Cal.  423;  Salmon  v.  Sj/moiul^,  30 
Id.  :r)l;  niiidi'-orth  V.  Lake,  :;;}  Id.  -250;  Haven 
V.  Ilaiiips,  G3  Id.  452;  Eoi-rdi'^ti  v.  Ma>jhew,  2 
West  Coast  Rep.  72o;  Brannock  v.  Jlonroe,  3 
Id.  4U. 

Comp3Ti3ation  of  involuntary  trustee; 
See  sec.  2275. 


2224.    Incoluntari/  trust  resulting  from  nrgligcnce,  etc. 

Sec.  222 i.  One  who  gains  a  tiling  by  fraud,  accident,  mistake,  undue  influ- 
ence, tlio  violation  of  a  tnirst,  or  other  ^Yrong•ful  act,  is,  unless  he  has  some 
other  and  better  right  thereto,  an  iuvoluutary  trustee  of  the  thing  gained,  for 
the  benefit  of  the  person  who  would  otherwise  have  had  it. 

Trust.3  arising  from  fraud,  etc. — This  class  525.  An  administrator  who  becomes  a  pur- 
of  trusts,  known  in  the  text-books  as  construe-     cliascr  through  a  third  person  of  tlie estate  sold 


tivo  tru'-.ts,  is  very  large,  it  being  f,)unded 
upon  "fra'ids  committed  by  one  party  upon 
finother:  "  1  Perry  on  Trusts,  sec.  IGfi.  Seo 
alcO  2  Pomcroy's  I]q.  .Jur.,  sees.  1044  et  scij., 
where  it  is  stated  that  all  instances  of  this  si)e- 
cies  of  trust  may  bo  referred  to  "  what  eiuity 
•  ('■nominates  fraud,  either  actual  or  construc- 
tive, a  •'  an  cs  -cntiai  element,  and  as  their  final 
soun;c."  Each  of  tliesc  authors  gives  many 
iliust'ations.  In  this  state  are  the  following 
caaes:    One  who,  ciiiployud  to  assist  another  in 


by  him  may  bo  compeilod  to  convey  the  land 
to  tlie  heirs:  Guerrero  v.  B  Ulcriuo,  43  Id.  118. 

A  husband  who  redeems  property  with  his 
wife's  funds  holds  them  in  trust  for  her:  C'rei/ier 
V.  Greiner,  5S  Cal.  115;  and  hi  i  tloiiec  occupies 
the  same  position:  Id.  In  C  ffcif  v.  Gremi fit-Id, 
G2  Id.  G02,  a  guardian  was  charged  as  trustee 
for  his  wartls,  whose  reaky  he  had  conveyed  to 
lilmf;clf  j.ersonally. 

ImpMed  trusts,  that  is,  trusts  arising  where 
one  takes  property  subject  to  trust  witii  notice 


procuring  a  conveyance  to  a  tract  of  land,  gets  thereof,  or  not  for  value:  Scea/t^^',  sees.  Go9,  S70, 

tie  conlidence  of  that  other,  and  in  violation  a  ul  the   note  to  sec.  803;    CvUisult  also  sees, 

thereof  obtains  a  conveyance  in  his  own  name,  2243,  22G3,  and  note. 

will  lie  held  to  be  t!ie  trustee  of  his  employer:         Resulting  trust  must  grow  out  of  the  facts 

Jr(6.s'e?' V.  A'///'/,  .'i3  Cal.  343.     8o  one  of  several  existing  at  the  time   of  tlie  conveyance,  and 

partners  who  buys  land  for  them  all,  and  takes  cannot  arise  from  a  mere  parol  agreement  that 

the  deed  in  his  own  name,  is  a  trustee  for  his  th  j  purchase  sliall  be  for  the  bcueiit  of  anotlier: 


copartners:  SrUembre  v.  Putnam.  30  Id.  493. 
A  husband  wlio  jirocures  his  wife  to  join  with 
him  in  tlie  execution  of  a  mortgage  of  her  land 
to  secure  bis  debt,  which  on  foreclosure  he  dis- 
charges wiJi  money  of  his  own  through  the 
medium  of  anoLher,  and  takes  a  deed  for  the 
land  througli  that  ot'ier,  will  be  de  dared  a 
trustee  for  his  wife:  llodsey  v.  Wilkie,  oo  Id. 


Hunt  V.  Friedman,  03  Cal.  510.  And  see  /?o.'<- 
fr.'.s  V.  Ile'dij,  3  West  Coast  Rep.  310,  where  a 
trust  resulted  in  favor  of  one  v.'lio  furnished 
part  of  the  consideration  for  tlic  conveyance 
taken  in  the  defendants'  name.  See  ;dso  IJ'or- 
tnouili  V.  Johnson,  53  Id.  021,  where  a  trust  was 
civated  in  favor  of  one  whose  money  was  used 
to  buy  realty. 


ARTICLE  II. 

0BLIGA.TI0NS    OF    TRUSTEES. 

2223.    Tna^tee'i^  ohJigation  to  good  failh. 

Sec.  2228.  In  all  matters  connected  with  hia  trust,  a  trustee  is  bound  to  act 
in  the  highest  good  faith  toward  his  beneficiary,  and  may  not  obtain  any  advan- 
tage therein  over  the  latter  by  the  slightest  misrepresentation,  concealment, 
threat,  or  adverse  pressure  of  any  kind. 

Obligation    of    good    faith. — The    various     sumption  that  where  the  trustee  has  gained  any 
sections  of  this  article  illustrate  the  general     benelit  from  the  bencliciary  such  trustee  did 
principle   here   formulated,    and   section  221/5     not  act  in  good  faith, 
adds  to  the  requirement  of  good  faith  the  pre 

2220.    Trustee  not  to  use  propertu  for  his  own  profit. 

Sec.  2229.  A  trustee  may  not  use  or  deal  with  the  trust  property  for  his  own 
profit,  or  for  any  other  purpose  unco:r.i"c;tc;d  with  the  trust  iu  any  manner. 

370 


§2230 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


Dealing  with  the  tnist  property.— That 

the  trust'ji;  cauiiot  deal  with  t!ie  trust  property 
80  as  to  (Icriw!  a  Ijeiicfit  to  liim^elf  id  a  fiinJa- 
mentul  [niiioiplc  of  tlic  law  of  trusts.  It  has 
been  asscted  in  iniijiberless  instances:  See 
Pafje  V.  Ka/lt'P,  (J  Cal.  '211;  Gnnler  v.  Jrme^,  9 
III.  G4:;;  St',1.  /)i-;fo  V.  S.  D.  <fc  L.  A.  R.  C  >., 
44  Id.  10,1;  and  nt/te  to  sec.  2224;  Common.- 
wealth  V.  2,IcAIU.<t.';:  28  Pa.  St.  480;  Fu'toii 
V.  W/iUiiey.  Go  N.  Y.  548;  Chapman  v.  Port-r, 
CO  Id.  27G;  B  rnex  v.  Brown,  80  Id.  527;  and 
Bee  2  Pun'.croy's  Ivj.,  sees,  1075  et  sefj.;  1 
Perry  on  Trusts,  sec.  427.  See  also  an  illus- 
tration of  111  is  general  principle  in  Shatlitrk  v. 
OaJ:!aiid  S.  <0  A'.  Co.,  58  Cal.  550,  where  direc- 
tors of  a  cor'ioration  sought  in  an  imlirect  man- 
ner to  vote  theniseives  the  profierty  of  th.e  cor- 
poration; and  sec  next  section. 

Trus'.ces  u;  nnot  use  tiie  trust  funds  for  their 
own  profit  in  anj'  kind  of  speculation  or 
business.  W'hativcr  profits  are  derived  from 
such  use  bclon-^  to  the  beneficiary:  Plunvta  v. 
Slocum,  4  1  N.  Y.  5.'>;  Uaideij  v.  Cramer,  4  Cow. 
717.  And  the  iDsses,  if  any,  muat  be  borne  by 
the  trustee:  Oal.iand  Bavhof  Snohirjsv.  Villcox, 
CO  Cal.  120;  and  see  Sharpaiein  v.  Pricdlamlcr, 
6.3  Id.  78.  So  if  tlie  trustee  buys  the  trust 
property  at  public  or  private  sale,  he  takes  sub- 
ject to  the  bencficiarv's  riglit  to  claim  t'le 
profits:  S,nith  v.  Luii.sfiig.  22  N.  Y.  530;  Schuo- 
mahr  v.  Van  U'i/':c  .Si  Barb.  457;  I  Perry  on 
TVusts,  sec.  428;  and  the  California  cases  mi/>ra, 
under  section  2224;  2  Poineroy's  Eq.,  sec.  958, 
in  the  note  to  which  the  decisions  are  classified 


as  regards  purchases  hy  the  trustee  directly 
from  himself,  at  auction,  at  judicial  sale, 
througli  a  third  ]jerson.  as  agent  for  a  third 
porso:i,  and  from  a  co-tru  tee. 

.-V  judge  who  orders  a  sale  and  has  the  power 
to  confirm  or  set  it  aside  comes  within  tiio  rca- 
sin  of  t'.ie  iiile  that  truiteci  and  otlier  lidiicia- 
rics  cannot  make  a  valid  purcliase  of  any  jiart 
of  the  estate  in  respect  to  whicli  t!iey  iiave  du- 
ties to  perform:    I'rary  v.  Co.'h  i,  55  (lal.  G7. 

Gubd.  3.  "A  distillation  h:i-j  b33:i  taken 
between  trustees,  strictly  so  called,  and  other 
persons  occupying  a  conlidcntial  relation;  and 
it  lias  been  said  that  t'.ie  former  cannot  jiur- 
cluise  the  trust  property  under  any  circum- 
stances whatever,  wit'.iout  being  saljject  to  a 
resciosinn  of  tlie  sale  at  the  discretion  of  the 
betieaciary:  Story's  Eq.  Jur.,  sec.  311.  But 
this  distinction,  if  it  exists  at  all,  does  not  ap- 
]V'ar  to  be  well  founded:"  Commissioners'  state- 
nifut. 

Purcliassr  from  trustee  will  be  charged 
with  the  trust  or  not,  depending  upon  such 
purchaser's  knov/ledge  of  tlic  real  situation  of 
tlic  parties:    See  sec.  22G3.  and  note. 

Presumptiou    of    undue    influence So 

careful  is  the  law  of  tha  interests  of  the  trus- 
tee that  it  presumes  transactions  between  the 
trustee  and  beneficiary  to  have  been  entered 
into  by  the  latter  under  undue  influence:  vSec. 
2233;  and  all  violation  of  the  duties  of  the 
trustee  prescribed  in  this  article  are  declared 
to  be  fraudulent:  Sec.  2234. 


2233.    Certain  transaclions  forbidden. 

Sec.  2231).  Neither  a  trustee  nor  any  of  his  agents  may  take  part  in  any 
transaction  coucerniug  the  trust  in  which  he  or  any  one  for  whom  he  acts  as 
agent  has  an  interest,  present  or  contingent,  adverse  to  that  of  his  beneficiary, 
except  as  follows: 

1.  When  the  beneficiary,  having  capacity  to  contract,  with  a  full  knowledge 
of  the  motives  of  the  trustee,  and  of  all  other  facts  concerning  the  transaction 
which  might  affect  his  own  decision,  and  without  the  use  of  any  influence  on 
the  part  of  the  trustee,  permits  him  to  do  so; 

2.  When  the  beneficiary  not  having  capacity  to  contract,  the  proper  court, 
upon  the  like  information  of  the  facts,  grants  the  like  permission;  or, 

3.  "When  some  of  the  beneficiaries  having  capacity  to  contract,  and  some 
not  having  it,  the  former  grant  permission  for  themselves,  and  the  proper  court 
for  the  latter,  in  the  manner  above  prescribed. 

Trustee  hiving  interest  adverse  to  the     fi     i  the  beneficiary's  right  to  set  aside  the 


trust. — One  occupying  the  2:)osition  of  trustee 
cannot  put  hi  ;isc'.f  in  a  position  adverse  to  liii 
beneficiary:  A.i'lmr.-i  v.  Pnift,  41  C.d.  30J; 
.S'a.v,  iJlryj  V.  S.  J).  ,(■  L.  A.  H.  R.  Co.,  Id.  1  Jj; 
Wilbur  V.  L,in,lr,  A  >  Id.  200;  Chambcr'ahi  v. 
Pac.  Wool.  Co.,  o\  11.  103;  Prac// v.  Co'Jt>/,  7)3 
I<1.  G7.  As  is  said  in  DavU  v.  Rock  Cri'dz  I,. 
F.  &  }.I.  Co.,  53  C.il.  359,  334,  "one  cannot 
faithfully  .serve  two  masters." 

For  cxain ;;le,  a  trustee  cannot  buy  claims 
against  t'.ie  trust  estate  at  a  discount,  and  m  die 
a  profit  on  tiierii:  DavUw  Rock  Crrrk  L.  /•'.  <t 
M.  Co.,  53  Cal.  330,  3J4;  Khvj  v.  Cu-^hnan,  41 
111.  31;  Burksitdli'  v.  Finney,  14  Gratt.  .SOS; 
Schoomab'r  v.  Van  Wyck,  31  Barb.  457;  an  I 
Bee.  22J  1,  pout. 

That  lie  cannot  purchase  the  trust  property 
directly  or  indirectly,  and  acquire  title  free 


same,  see  the  note  and  reference  to  section  2229. 

An  arjcnt  or  clerk  conies  within  the  me.minff 
of  tills  rule,  and  where  such  clerk,  knowing  of 
tliu  expiration  of  his  employer's  lease,  procures 
a  renewal  to  himself,  lie  will  be  compelled  to 
convey  to  his  principal:  Gotccr  v.  Andrews,  59 
Cal.  110;  and  see  anotlicr  illustration  of  agent's 
usinj;  for  his  own  benefit  (taper  which  lie  re- 
ceived as  agent:  Ward  v.  Broivn,  50  Cal.  104. 

D'rcctor.i  of  corporations  are  trustees  within 
the"  meaning  of  the  above  rule:  Chamberlain  y. 
Pae.  Wool  Co.,  54  Cal.  103;  Divi'^  v.  R^ck 
Cri'ck  L.  F.  cb  M.  Co.,  53  Id.  330;  Sha'tw-k  v. 
U'lU'ind  S.  tt  R.  Co.,  53  Id.  530;  Duncomb  v. 
y.  Y.  II.  d:  N.  R.  /?.,  84  N.  Y.  100,  193, 
wliere  it  is  said:  "It  is  not  intended  to  deny  or 
tjuestion  the  rule  that  »  ♦  *  there  can  be 
il)ubb  that  his  [director's]  character  is  hduci- 

380 


ail  assent,  much  less  a  coiicun-cncc:  Town  oj 
Vcroiui  V.  Pe.ckliam,  GO  Barb.  103. 


Title  VIII,  Chap.  I.]  TRUSTS  IN  GENERAL.  §§  2231-2236 

ary,  and    tliat  lie  falls  within  the  doctrine  liy  legal   rights   arising  therefrom,    concurs   in  a 

which  ((juity  requires  tliat  confidence  shall  not  hi-cacli  df  a  trust  hy  tlie  trustee,  cnnnot  claim 

be  ahusc'l  by  tlie  party  in  whom  it  is  reposed,  relief  tlierefor:  Roi/aU's  Adin'r  v.  MrKenzic,  25 

and  wliich  it  ouforccs  by  imposing  a  disability,  Ala.  .30;;;  Moncll  v.  Momll,  5  Joiins.  Ch.  283; 

either  partial  or  complete,  upon  sucli  party  to  Clark  v.  Clark,  8  Paige,  1.V2.     But  the  bene- 

deal  on  iiis  own  Itcha.f  in  respect  to  any  mat-  ficiaiy,  to  l)e  bound  in  this  manner  by  his  con- 

ter  involving  such  confidence."  currence,   must  be  sui  jiirl-:,  and   be  fully  in- 

Mimicijial   honrd    comes   within    the    same  formed  as  to  his  rights:   /Jodl  v.  /Joiid,'  jillen, 

principle:  Andrews  v.  Pratt,  44  Cal.  300;  San  1;    Wibiamn  v.    Rtvd,  3  Mason,  403:  Cnniber- 

Dirr/o  V.  ,9.  D.  <L-  L.  A.  R.  R.  Co.,  Id.  100.  land  Coal  Co.  v.  Slr-rmnn,  20  Md.  117;  Nccjley 

Duty  to  inform  bsneficiary:  See  sec.  2233,  v.  Lhahay,  07  Pa.  St.  217.  See  the  same  prin- 
ts/'«.  ciple  applied  in  note  to  section  2201,  ]>oiit. 

Undertaking  inconsistent  trust:  See  sec.  Meie  knowlcdi^e  of  a  breach  of  trust  is  not 

Beneficiary  assenting. — A  beneficiary  who, 
having  full  knowledge  of  all  the  facts,  and  of  his 

2231.  Trustee's  influence  not  to  he  uncd  for  /;/.s  cuhantage. 

Sec.  2231.     A  trustee  may  not  use  the  influence  which  his  position  gives  him 

to  obtain  any  advantage  from  his  beneficiary. 

The  decisions  cited  and  references  made  This  section,  however,  prohibits  tlie  employing 
under  the  prior  sections  of  this  article  fiunish  of  trustee's  influence,  even  for  the  benefit  of 
illustration  of  the  principle  here  formulated,     another:  See  1  Perry  on  Trusts,  sec.  433. 

2232.  Trudee  not  to  asfiume  a  trud  adverse  to  interest  ofbenefician/. 

Sec.  2232.  No  trustee,  so  long  as  he  remains  in  the  trust,  may  undertake 
another  trust  adverse  in  its  nature  to  the  interest  of  his  beneficiary  in  the  sub- 
ject of  the  trust,  without  the  consent  of  the  latter. 

Assuming  another  trust. — This  section  is     must  not  place  himself  in  a  position  inconsist* 
but  a  iuithcr  np|ilication  of  the  principle  stated     ent  with  lus  duty  to  Lis  lieneficiaiy. 
in  another  form  in  section  2230,  that  the  trustee 

2233.  To  disclose  adverse  interest. 

Sec.  2233.  If  a  trustee  acquires  any  interest,  or  becomes  charged  with  any 
duty,  adverse  to  the  interest  of  his  beneficiary  in  the  subject  of  the  trust,  he 
must  immediately  inform  the  latter  thereof,  and  ma}'  be  at  once  removed. 

Trustee's  duty  to  disclose  adver.^e  interest:  Compare  with  sec.  2230. 

Removal  of  trustee:  See  sees.  2282,  22S3. 

2234.  Trustee  guilty  of  fraud,  when. 

Sec.  2234.  Every  violation  of  the  provisions  of  the  preceding  sections  of  this 
article  is  a  fraud  against  the  beneficiary  of  a  trust. 

Trustees  violation  of  duty  is  a  fraud,     ber  is  guilty  of  framl,  in  the  absence  of  any 

An  executor  wiio  mingles  the  funds  of  the  es-     evidence  of  intended  or  actual  fraud:  JJslate  of 
tate  with  those  of  a  lirni  of  which  he  is  a  mem-      William  Stotl,  52  Cal.  403. 

2235.  Presumption  against  trustee. 

Sec.  2235.  All  transactions  between  a  trustee  and  his  beneficiary  during  the 
existence  of  the  trust,  or  while  the  influence  acquired  by  the  trustee  remains, 
by  which  he  obtains  any  advantage  from  his  beneficiary,  are  presumed  to  be 
entered  into  by  the  latter  without  sufHcieut  consideratioUj  and  under  undue 
influence. 

£23S.    Trustee  mingling  trust  propertij  with  his  own. 

Sec.  223G.  A  trustee  who  willf  ull}'  and  unnecessai-ily  mingles  the  trust  prop- 
erty with  his  own,  so  as  to  constitute  himoelf  in  appearance  its  absolute  owner, 
is  liable  for  its  safety  in  all  events. 

Mixing  trust  -witli   private   property. —  mere   debtor:    CInntcr  v.   Jaiipa,    C  Cal.    043. 

Trustees  ought  not  to  mingle  the  trust  prop-  For  example,  if  a  trustee  deposits  trust  money 

erty  with  their  own  private  i)roperty.     It'  it  is  in  bank  in  his  own  name,  or  mixes  it  witli  his 

done  unnecessarily,  the  trustee  will  be  liable  own,  he  will  be  liable  in  case  of  the  failure  of 

for  any  loss,  no  matter  how  occasioned:  See  2  the  batilicr,  or  fur  any  othur  loss;   1   1 'err}' on 

Poiiieioy's  Eq.,  sec.  1076,  note  1.     The  trustee  Trusts,  sec.  403;  Srkonl  Dis.  (JrceiiJicUl  v.  Fimt 

cannot,  by  sucii  commingling  of  funds,  change  Nat.  Hank,  102  Mass.  174;  Mason  \.]Vhile]iornt 

ilia  character  from  that  of  trustee  to  that  of  a  2  Coldw.  242. 

381 


2237-2243 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


But  where  a  decerlent  mingled  the  fntuls  of  has  only  a  claim  against  the  estate,  which 

the  trust  with   liis  own,  so  that  iiL-itlier  the  must  be  presented   to  the  executor  for  allow- 

trust  fund  nor  the  propeity  into  which  it  was  auce:  Lathrop  v.  Bamjdoii,  31  Cal.  17. 
converted  could   be  identified,  the  beneliciary 

2237.   ITrasure  of  Uahility  for  breach  of  trust. 

Sec.  2237.  A  trustee  who  uses  or  disposes  of  the  trust  property,  contrary  to 
section  twenty-two  hundred  and  twenty-nine,  may,  at  the  option  of  the  bene- 
ficiary, be  reqiiired  to  account  for  all  profits  so  made,  or  to  pay  the  value  of  its 
use,  and,  if  he  has  disposed  thereof,  to  I'eplace  it,  with  its  fi'uits,  or  to  account 
for  its  pi-oceeds,  with  interest. 


Trustee's  liability  for  misappropriation 
of  property. — Where  the  trustee  deals  with 
the  trust  property  as  his  own,  or  for  any  pur- 
pose not  connected  with  the  trust,  the  bene- 
liciary jnav  claim  all  the  profits:  MrKiii'i/d  v. 
Walsh,  '24'N.  J.  Ecj.  498,  539;  Norri^i'  Appml, 
71  Pa.  St.  lOG;  and  see  ante,  sec.  222i),  and 
note. 

Compound    interest   vnll    be    allow^ed 


where  the  trustee  mingles  the  tiust  fund  with 
his  own;  t.  e.,  the  lc;^alrate,  wiLh  annual  lests: 
Eda'e  ofStott,  52  (Jal.  409;  L'.sfrt'c  of  Clark,  53 
Id.  315.  See  Iha  n(.te  in  1  .Si.therlaud  on 
Daina'^e'',  623  et  s^q.,  on  t'lis  suliiict. 

Liability  for  uou-inve^tmeni  of  funds; 
Sec  sec.  22G2.  post. 

De^jree  of  diligence  requisite:  Sec  2259, 
post. 


2238.  Same. 

Sec.  2238.  A  trustee  "who  uses  or  disposes  of  the  trust  property  in  any  man- 
ner not  authorized  by  the  trust,  but  in  good  faith,  and  with  intent  to  serve  the 
interests  of  the  beneficiary,  is  liable  only  to  make  good  whatever  is  lost  to  the 
beneficiary  by  his  error. 

2239.  Co-trustees,  hoiofar  liable  for  each  other. 

Sec.  2239.  A  trustee  is  responsible  for  the  wrongful  acts  of  a  co-trustee  to 
which  he  consented,  or  which,  by  his  negligence,  he  enabled  the  latter  to  com- 
mit, but  for  no  others. 


Co-trustees,  how  far  liable  for  eaoli 
other. — As  a  general  rule,  one  trustee  is  not 
liable  or  responsible  for  the  acts  or  defaults  of 
his  co-trustee:  1  Perry  on  Trusts,  sec.  415; 
StcWs  Ap-peal,  10  Pa.  St.  149;  Banks  v.  Wtlkc-*, 
3  ibandf.  Ch.  99;  Latrohe  v.  Tlernan,  2  ild. 
Ch.  474;  Bofjd  v.  Boyd,  3  Gratt.  113.  So  where 
for  the  sake  of  conformity  only  two  trustees 
sign  for  money  received  by  but  one,  both  are 
not  by  that  act  alone  made  responsible  for  the 
money;  the  one  who  actually  received  the  same 
is  liable:  GriJTni  v.  Macaulay,  7  Gratt.  47ii; 
Stoioe  V.  Boicen,  99  Mass.  194;  Sinclair  \\  Jack- 
son,  S  Cow.  .543;  Grmj-v.  Reamer,  11  Bush,  113; 
Peter  v.  Uevfrlti,  10  Pet.  531,  5G2. 

For  all  wrongful  acts  of  a  trustee  to  which 
his  co-trustee  consented,  or  which  the  latter 
made  possible  by  his  negligence,  he  will  be 
liable.  For  example,  where  one  trustee  knows 
that  his  co-trustee  has  collected  money  and  has 
omitted  to  apply  it  to  the  purposes  of  tliH  trust, 
and  such  trustee  takes  no  steps  to  have  a 
proper  application  of  the  funds  made,  they  both 
will  be  liable:  lUnrj'jold  v.  Bingfjold,  IS  Am. 
Dec.  250;  Laroe  v.  Douglass,  13  N.  J.  Eq.  308; 


SrJineckv.  Schneck,  16  Id.  174;  Fonte  v.  Ilorton, 
3G  IMiss.  350. 

If  a  trustee  surrenders  the  entire  control  of 
the  trust  property  to  his  co-trustee,  the  former 
will  be  responsible  for  the  losses  occasioned  by 
tiie  wrongful  acts  of  the  latter:  Gray  v.  Reamer, 
11  Bush,  113;  Spencer  v.  Spencer,  11  Paige, 
299;  RoyaWs  Adm'r  y.  MrKmrJe,  25  Ala.  303. 

See  further  discussions  of  this  question  in  the 
note  to  Jones'  Appeal,  42  A:n.  Dec.  2SS;  1 
Perry  on  Trusts,  sec.  417-420;  2  Pomeroy's  Eq., 
sees.  10G9,  1081,  1082. 

Compare  also  this  section  with  sections  2308 
and  2288. 

Remedies  against  co-trustees,  -whether 
joint  or  several:  See  2  Pomeroy's  Eq.,  sec.  1081, 
where  in  discussing  the  joinder  of  trustees  as 
jiarties  defendant,  a  distinction  is  diawn  be- 
tween the  case  where  the  trustees  are  liable  to 
the  beneficiary  by  reason  of  some  act  not  purely 
tortious,  and  where  such  is  the  character  of  the 
wrongful  act.  In  the  former  case,  contribution 
existing  among  the  trustees,  they  all  should  be 
joined;  in  the  latter  case  not. 


ARTICLE  in. 

OBLIGATIONS   OF  THIKD    PEKS0N8. 

2243.    Third  persons,  when  involunlary  trustees. 

Sec.  2243.  Every  one  to  whom  property  is  transferred  in  violation  of  a  trust 
holds  the  same  as  an  involuntary  trustee  under  such  trust,  unless  he  purchased 
it  in  good  faith  and  for  a  valuable  cousideration. 

Implied  trustee:  See  the  subject  of  this  section  discusaed  in  the  note  to  sees.  85C  and  853,  ante, 

382 


Title  Vin,  Chap.  IT.]    TRUSTS  FOR  BENEFIT  OF  THIRD  PERSONS.         §§  2244-225S 

2244.    When  third  person  must  see  to  application  of  trust  properly. 

Skc.  2244.  One  wbo  actually  and  in  good  faith  transfers  any  money  or  other 
property  to  a  trustee,  as  such,  is  not  bound  to  see  to  the  application  thereof, 
and  his  rights  can  in  no  way  be  prejudiced  by  a  misapplication  thereof  by  the 
trustee.  Other  persons  must,  at  their  peril,  see  to  the  proper  application  of 
money  or  other  property  paid  or  delivered  by  them. 

Applicaticu  of  purchase  money. — "Here-  above]  to  all  persons:"  See  the  instructive 
toforc,"  say  the  code  commissioners,  "  tlie  hiw  chapter  in  2  Pei'ry  ou  Trusts,  sees.  788  et  seq. 
has  applied   this  rule  [of    the  last  sentence 

CHAPTER  IL 

TRUSTS  FOR  THE  BENEFIT  OF  THIRD  PERSONS. 

Abticle  I.  Nature  axd  Creatiox  of  the  Trcst 2250 

II.  Obligation's  of  Trhstees 2258 

III.  Powers  of  Trustees 2267 

IV.  Rights  of  Tefstees 2273 

V.  Termixation  of  the  Trust 2279 

VI.    Sl'ccession  or  Afpoixtjient  of  New  Trustees 2287 

ARTICLE   I. 

NATTTKE   AXD    CEEATIOX    OF    THE   TRUST. 

2250.    Who  are  trustees  within  scope  of  this  chapter. 

Sec.  2250.  The  provisions  of  this  chapter  appl}'  only  to  express  trusts,  created 
for  the  benefit  of  another  than  the  trustor,  and  in  whicli  the  title  to  the  trust 
l)roperty  is  vested  in  the  tiTistee;  not  including,  however,  those  of  executors, 
administrators,  and  guardians,  as  such. 

22C.i.    Creation  of  t7'ust. 

Sec.  2251.  The  mutual  consent  of  a  trustor  and  trustee  creates  a  trust  of 
■whicli  the  beneficiary  may  take  advantage  at  any  time  prior  to  its  rescission. 

Revolring  trust,  beneficiary's  consent  the  proceeds  of  a  sale  of  land  in  trust  for  third 
necessary:  .See  sec.  '2'2S0.  persons,  they  may  enforce  the  same:  Betlis  v. 

PromisG  for  benefit  of  third  person:  See     Tovonsend,  01  Cal.  333. 
aide,  sec.  JiiGO.     Andwliere  one  agreed  to  hold 

2.2,b2.    Trustees  appointed  by  court. 

Sec.  2252.  When  a  trustee  is  appointed  by  a  court  or  public  officer,  aa  such, 
Buch  court  or  officer  is  the  trustor,  within  the  meaning  of  the  last  section. 

2253.  Declaration  of  trust. 

Sec.  2253.  The  nature,  extent,  and  object  of  a  trust  are  expressed  in  the 
declaration  of  trust. 

2254.  Same. 

Sec  2-54.  All  declarations  of  a  trustor  to  his  trustees,  in  relation  to  the 
trust,  before  its  acceptance  by  the  trustees,  or  any  of  them,  are  to  be  deemed 
part  of  the  declaration  of  the  trust,  except  that  when  a  declaration  of  trust  is 
made  in  writing,  all  previous  declarations  by  the  same  trustor  are  merged 
therein. 

ARTICLE  II. 

OBLIGATIONS    OF   TRUSTEES. 

2258.    Trustees  must  obey  declaration  of  trust. 

Sec.  2258.  A  trustee  must  fulfill  the  purpose  of  the  trust,  as  declared  at  its 
creation,  and  must  follow  all  the  directions  of  the  tinistor  given  at  that  time, 
except  as  modified  by  the  consent  of  all  parties  interested,  in  the  same  manner 
and  to  the  same  extent  as  an  employee. 

383 


f  §  2259-2263 


OBLIGATIOXS. 


[Div.  Ill,  Part  IV, 


Authority  of  trustee,  generally:  See  eeo. 

22G7,  pvsl. 


Trustee  must  follow  declaration  of  trust: 
Sec  I'omcroy's  J']fi.,  sec.  10G2;  coinparo  with 
the  duty  of  ciuployeo,  sec.  19S1,  ante. 

2259.    Dcrjrce  of  care  and  dlUgmce  in  rxecution  of  trust. 

Sec.  2250.    A  trustee,  wlietlior  he  receives  any  compensation  or  not,  must  use 
at  least  ordinary  care  and  diligence  in  the  execution  of  bis  trust. 

Dllisenoe   in    esacutias  trust. — Trustees     structivc  note  to  the  same  section,  points  out 


that  ni:uiy  of  the  cases  which  say  that  a  trustee 
is  liable  only  for  rrasfta  nc(j!cnt'ta  usj  this  term 
as  synonymous  with  "absence  of  ordiiiaiy  caro 
and  dill  ;cncc  adequate  to  tlio  particular  cape." 
Obli2:itio:i3  of  trustees:  Sec,  generally, 
anie,  sees.  2228  ct  seq. 


must  Uc.e  ordinary  care  and  diligence  in  per- 
formance of  tho  trust;  that  is,  as  explained  in 
2  Potneroy's  Eq.,  sec.  1070,  the  same  care, 
skill,  and  prudence  "a  man  of  ordinary  care, 
skill,  and  prudence  \7ould  use  ia  his  own  trans- 
actions and  with  his  own  property  under  the 
like  circninytances."     That  author,  in  an  in- 

2260.    Duty  of  trustee  as  to  appointment  of  successor. 

Sec.  22u0.  If  a  trustee  procures  or  assents  to  Lis  discbarge  from  bis  office, 
before  bis  trust  is  fully  executed,  be  must  use  at  least  ordinary  care  and  dili- 
gence to  secure  tbe  appointment  of  a  trustworthy  successor  before  accepting  his 
own  final  discharcfe. 


reckless  trustee  liavingbeen  appointed  in  place 
of  an  indolent  but  responsible  one: "  Commis- 
sioners' note. 

Su3oession    or    appointment    of    new 
trustees:  See  j^o.it,  sec.  2237. 


Duty  to  procure  successor. — "This  pro- 
vision ij  new,  and  is  intcndetl  to  protect  Ijene- 
ficiaries  from  a  hasty  resort  to  the  courts  in 
order  to  shake  olT  the  responsibility  of  a  trust, 
a  proceetlin^  by  which  they  have  been  some- 
times irremediably  injured,  an  insolvent  and 

2261.    Investment  of  money  l)y  trustee. 

Sec.  22G1.  A  trustee  must  invest  money  received  by  him  under  tbe  trust,  as 
fast  as  be  collects  a  sufficient  amount,  in  such  manner  as  to  afford  reasonable 
security  and  interest  for  the  same. 


Investment  under  direction  of  court:  See 

lie  Cardwcll,  Cj  Cal.  137,  for  liabiliiy  of  guai*- 
diati  for  mak'ng  investment  without  authority 
of  the  court. 

Assent  to  improper  investment  given  by 
a  beneficiary  who  is  siii  j'tri^,  and  has  full 
knowledge  of  the  facta,  will  estop  liiin  from 
holding  the  trustee  accountable:  Klii'/v.  Talbot, 
40  N.  Y.  70;  Campbell  v.  Cam-pbclt,  33  Ga.  304; 
Wood  V.Wood,  23  Am.  Dec.  451.  But  such 
assent  must  bo  with  full  knowledge  of  the  facta 
and  I  f  their  legal  effect:  Adair  v.  J),  imnier,  74 
N.  Y.  533.  See  the  same  principle  in  note  to 
sec.  2230,  ante. 


Investment  of  trust  funds. — This  section 
makes  it  the  duty  of  t!ie  trustee  to  invest  trust 
money,  and  tlie  foilowing  section  imposes  the 
penalty  for  not  so  doing.  Posncroy,  2  Equity, 
see.  1073,  classifies  trusts  with  respect  to 
the  investment  of  funds  into  those  where  the 
instrument  creating  the  trust  specifiL^s  securi- 
ties or  directs  moiles  of  investment,  and  into 
those  where  the  instrument  is  silent  on  the 
subject.  That  author's  exposition  of  this 
branch  of  the  law  will  be  found  of  value.  In  a 
note  to  Xi/i-e\t  Estate,  40  Am.  Dec.  oOG,  m  ill  be 
found  a  collection  of  decisions  arranged  accord- 
ing to  the  various  kinds  of  securities  into  which 
the  trustee  may  put  the  trust  fund. 

2262.  Interest,  simple  or  compound,  on  omission  to  invest  trust  moneys. 

Sec.  22G2.  If  a  trustee  omits  to  invest  tbe  trust  monej's  according  to  tbe  last 
section,  be  must  pay  simple  interest  thereon  if  such  omission  is  negligent 
merely,  and  compound  interest  if  it  is  willful. 

Trustee's  lia'oility  for  interest:    Compare  with  sec.  2237,  ante. 

2263.  Purchase  by  trustee  of  claims  against  trust  fund. 

Sec.  22G3.  A  trustee  cannot  enforce  any  claim  against  tbe  trust  property 
■which  be  purchases  after  or  in  contemplation  of  bis  appointment  as  trustee; 
but  be  may  be  allowed,  by  any  competent  court,  to  charge  to  the  trust  property 
what  ho  has  in  good  faith  paid  for  the  claim,  upon  discharging  the  same. 

Puroli-^sinscl  bts  against  the  trust  estate     of  all  knowledge  of  the  unlawful  dealings  of 


probibliod:  See  sec.  2230,  aide,  and  note. 

Notwithstanding  this  section,  a  bona  ftde 
purchaser  from  a  trustee  of  the  subject  of  ilie 
trust,  the  pure!iascr  not  knowing  that  the 
trustee  liad  acfpiii'cd  an  interest  in  the  same, 
•was  allowed  to  hoM  as  against  the  beneficiary. 
Say  the  court:  *'  Wc  think  tliat  iu  the  absence 


the  trustee,  the  title  of  the  purchaser  was  not 
alfectcd  by  the  fact  that  the  traoteo  was  deal- 
ing with  t!ie  trust  property  for  his  fiwn  benefit:" 
Care;/  v.  Brorvii,  02  Cal.  373.  Ihit  a  purchaser 
from  a  trustee  with  notice  will  he  charged  with 
the  trust:  Cavagnaro  v.  Do7i,  03  Id.  227. 


384 


Title  VIII,  Cuap.  II.]    TRUSTS  FOR  BENEFIT  OF  THIRD  PERSONS.         §§2267  2273 


ARTICLE  III. 


POWERS    OF    TRUSTEES. 


22S7.    Trustee's  powers  os  agent. 

Sec.  22C7.  A  trustee  is  a  general  agent  for  the  trust  property.  His  authority 
is  such  as  is  conferred  upon  him  by  the  declaration  of  trust  and  by  this  chapter, 
and  none  other.  His  acts,  wiLhin  the  scope  of  his  authority,  bind  the  trust 
property  to  the  same  extent  as  the  acts  of  an  agent  bind  his  principal. 

Povyer  of  trustee. — For  a  full  discussion  of    Cal.   2r>9,  where   the   power   was   given   to  a 


the  powers  of  trustee  as  gener:.!  agent  of  the 
trust  property,  see  2  Perry  on  Trusts,  sees. 
473  ct  scc|.  Examples  iu  tliis  state  of  the 
power  of  trustee  under  the  instrument  creating 
the  trust  are  the  following:  Beatty  v.  Clark.  20 
Cal.  11,  determining  that  the  trustee  had  ex- 
ceeded his  authority  in  borrowing  money  on 
his  note  as  trustee  for  other  purpo-es  than 
tho-ie  S[)ecified  m  t!ie  trust;  Tyler  \.  GnuKjer, 
4S  LI.  239.  In  Gr{{fin  v.  Blanchar,  17  Id.  70, 
a  trustee  of  a  naked  trust  was  dcciled  to  have 
no  power  to  nioi  tuage  the  trust  estate.  A  con- 
veyance to  one  in  trust  to  rent  or  sidl  the  ])rop- 
erty  passes  the  fee,  ami  the  trustee  has  power  to 
convey  tlie  legal  title:  Thompson  v.  McKay,  41 
Id.  221. 

The  trustee's  authority  may  be  for  a  limited 
time  Oi  'y,  and  after  the  expiration  of  that 
period  his  power  ceases:  Tyler  v.  Grainjer,  4S 


trustee  to  sell  lands  within  t^ixty  days. 

Actions  by  trHt:/ee.f. — Ejectment  cannot  be 
maintained  by  a  trustee  against  the  beneficiary 
or  liis  assigns,  where  such  trustee's  powers,  de- 
fined by  the  declaration  of  trust,  extend  merely 
to  Iiolding  tlie  title  as  security  for  a  debt:  Tyler 
V.  Grinujer,  48  Cal.  259.  But  that  the  trustee 
maj',  in  general,  luing  actions  for  the  recovery 
of  trust  estates,  or  to  prevent  waste  or  trespass 
thereon,  see  Tyler  v.  Jloiii/htm,  2j  Id.  2G. 

Poivers  are  to  l>e  construed  most  favorahly  to 
the  beueliciary:  Spraijiie  v.  Edwards,  43  Cal. 
230. 

Pov7ers  to  tw^o  or  more  trustees:  See  sec. 
22SS.  /'0.sC,  and  sec.  8i)0,  <inie. 

Agent's  acts  bindius  priucipal:  See  sees. 
23.*]0-2o:;9,  poxt. 

For  what  purposes  trusts  may  be 
created:  See  sec.  857,  ante. 


2268.  All  7nmf  ad. 

Sec.  22G8.  Where  there  are  several  co-trustees,  all  must  unite  in  any  act  to 
bind  the  trust  property,  unless  the  declaration  of  trust  otherwise  provides. 

All  co-trustees  must  act,  as  in  disposing        Survival  of  trust:  See  pns/,,  sec.  2288. 
of  t'.ie  trust  estate,  or  of  any  ))art,  the  cnnvey-         Liability  for  acts  of  co-trus'cee:  See  ante, 
ance  must  be  executed  by  all,  otiierwiso  the     sec.  2239. 

legal  tide  is  not  conveyed:  Learned  v.  Wil-on.         Esecutors,  when  one  or  mijority  may 
40  Cal.  349.  act;  See  Code  Civ.  Proc,  sec.  1335. 

2269.  Discj-eti'jvary  powers. 

Sec  22G0.  A  discretionary  power  conferred  upon  a  trustee  is  presumed  not 
to  be  left  to  his  arbitrary  discretion,  but  may  be  controlled  by  the  proper  court 
if  not  reasonably  exercised,  unless  an  absolute  discretion  is  clearl}^  conferred 
by  the  declare i; ion  of  trust. 


Discretionary  powers  mnst  not  be  arbi- 
trarily employed.  If  trustees  have  authority 
in  tlieir  discretion  to  exeouto  a  deed  of  the 
trust  ]itoperty,  liaving  exerci^^ed  the  discretion 
Ly  undertaking  to  sell,  a  court  of  equity  wiil 


compel  them,  in  a  proper  case,  to  give  a  good 
title:  Sannders  v.  Srhmaelzle,  49  Cal.  39. 

Discretionary  powers  of   trustee  cannot  be 
delegated:  See  Saunders  v.  Webber,  39  Cal.  287. 


ARTICLE  IV. 


RIGHTS   OF   TEUSTEE3. 


2273.    Lulevinification  of  trustee. 

Sec.  2273.  A  trustee  is  entitled  to  the  repayment,  out  of  the  trust  property, 
of  all  expenses  actually  and  properly  incurred  by  him  in  the  performance  of 
his  trust.  Ho  is  entitled  to  the  repayment  of  even  unlawful  expenditures,  if 
they  were  productive  of  actual  benefit  to  the  estate. 

Indemnifica'-inn  of  trustee. — Tlic  trustee    of  the  estate:  EH'fjv.Karflee.Old.GS^;  so  also 


is  cntitlcil  to  reiu.bursement  for  expenditures 
made  on  behalf  of  the  trust,  but  tlie  outlay 
must  have  been  made  for  the  ])re3ervation  of 
the  property,  or  to  prevent  the  failure  of  the 
trust:  lieattyw  Clark,  20  Cal.  II.  By  an  un- 
derstanding with  the  beneficiary,  moneys  ad 


with  res'icct  to  legal  services:  Id.;  and  a  court 
ou  reiulering  a  decree  establishing  a  trust  may 
make  the  reimbursement  of  tlie  trustee  a  con- 
dition precedent  to  the  conveyance  of  tlie  trust 
estate  to  the  henefieiary  l)y  the  trustee:  Hoblea 
Clnik,  25  Id.  317.    Whilo  Beatty  v.  Clark, 


vaiiced  may  be  inaile  a  charge  upon  the  rents    supra,  and  llohles  v.  Clark,  supra,  seem  to  de« 
Civ.  Code— 25  385 


85  2274-2282  OBLIGATIONS.  [Div.  HI,  Part  IV, 

cide  that  the  tnistce  ha3  a  lien  on  the  trust  es-  mnn,  29  Cal.  337;  Tt^hhs  v.  Clark,  25  Iil.  317; 

tate  or  its  iiicoine  for  reimljursemeiit,  the  law  so  oiio  in  whose  name  a  conveyance  is  taken, 

on  the  snhj'jct  is  not  entirely  settled:  See  2  and  who  furnishes  portion  of  tl>e  consideration 

Pomeroy's  I*]q.,  s<'C.  108"),  in  note.  money,  while  deemed  a  ti-ustee   for   the   real 

One  w!io,  deemiii'^  himself  to  l>e  the  OM'ner  party  in  interest  lie  will  be  considered  as  hold- 

ofland,  jiay3ofriiieuinl)rances,  isentitledtoreim-  iiig  the  leg:il  estate  as  security  for  the  repay- 

Imrsement  from  t'losc  for  whom  lie  isadjud'jed  meat  of  his  advances:  JJiUdtnx.  J<yrdan,  21  Id. 

to  hold  the  land  as  trustee:  Morrison  v.  Bow-  92. 

2274.    Compenf^af ion  oftrui^tee. 

Sec.  2274.  AVben  a  declaration  of  trust  is  silent  upon  the  subject  of  compen- 
sation, the  trustee  is  entitled  to  tlie  same  compensation  as  an  executor.  If  it 
specifies  tlie  amount  of  his  compensation  he  is  entitled  to  the  amount  thus 
specified,  and  no  more.  If  it  directs  that  he  shall  be  allowed  a  compensation, 
but  does  not  specify  the  rate  or  amount,  he  is  entitled  to  such  compensation  as 
may  be  reasonable  under  the  circumstances. 

Compensation  of  trustees  the  same  as  that  Barb.  209;  In  the  Matter  o/Srhell,  53  N.  Y.  263. 
of  executor  where  the  declaration  of  trust  is  An  assignee  for  the  benefit  of  creditors  is 
silent:  See  sec.  IGIS,  Code  Civ.  Proc.  For  a  entitled  to  commissions,  notwithstanding  the 
statement  of  the  rules  on  this  subject  adopted  assignment  is  .silent  upon  this  p^iint,  and  pro- 
in  the  varimis  states  of  the  Union,  see  the  note  vides  for  the  disposition  of  all  of  the  assigned 
to  Glhwirs  Case,  17  Am.  Dec.  266.  property:  Mnilce  v.  Miifer,  5G  Cal.  G28. 

When  the  compensation  is  directed  by  the  Forfeitins right  to  compensation  by  mal- 
declaration  of  trust  to  be  paid  to  the  trustee,  f3asance:  See  note  to  Gibson's  Ca.He,  17  Am. 
but  no  rate  specilied,  he  is  entitled  to  a  reason-     Dec.  274. 

able  amount:  See,  for  illustration,  Meacham  v.         Involuntary  trustee  entitled  to  no  OOZa> 
Sternes,  9  i'aige,  338;   V/aystaff  v.  Lowerre,  23    penaation,  vylien:  See  sec.  2275. 

2.21b.    Involuntary  trustee. 

Sec.  2275.  An  involuntary  trustee,  who  becomes  such  through  his  own  fault, 
has  none  of  the  rights  mentioned  in  this  article. 

Involuntary  trustee  defined:  Sees.  2217,  2223,  2224,  ante. 

ARTICLE  V. 

TERMINATION    OF   THE   TRUST. 

2273.    Trust,  liow  extinguished. 

Sec  2279.  A  trust  is  extinguished  by  the  entire  fulfillment  of  its  object,  or 
by  such  object  becomiog  impossible  or  unlawful. 

"So  as  to  real  trusts:  Matter  of  Craij,  1  doubtless  as  to  personal  trusts:"  Commission- 
Barb.  33;  Matter  of  De  Kay,  4  Paige,  403;  and     ers'  note. 

2280.  Not  revocable. 

Sec  22S0.  A  trust  cannot  be  revoked  by  the  trustor  after  its  acceptance, 
actual  or  j^resumed,  by  the  trustee  and  beneficiaries,  except  by  the  consent  of 
all  the  beneficiaries,  unless  the  declaration  of  trust  reserves  a  power  of  revoca- 
tion to  the  trustor,  and  in  that  case  the  power  must  be  strictly  pursued. 

2281.  Trustee's  office,  how  vacated. 

Sec  2281.     The  office  of  a  trustee  is  vacated: 

1.  By  his  death;  or, 

2,  By  his  discharge. 

2282.  Trustee,  how  discharged. 

Sec.  2282.     A  trustee  can  be  discharged  from  his  trust  only  as  follows: 

1.  By  the  extinction  of  the  trust; 

2.  By  the  completion  of  his  duties  under  the  trust; 

3.  By  such  means  as  may  be  prescribed  by  the  declaration  of  trust; 

4.  By  the  consent  of  the  beneficiary,  if  he  have  capacity  to  contract; 

5.  By  the  judgment  of  a  competent  tribunal  in  a  direct  proceeding  for  that 
purpose,  that  he  is  of  unsound  mind;  or, 

3S6 


ipensation    of    Trustee.      Except   as    pro\ 
^  f  the  Code  of  Civil  Procedure,  wiien  a  d 

lO     *3  is  silent  upon  the  subject  of  compensati 

tru&"tj^  tied  to  the  same  compensation  as  aii  ex 

If  it  SIX  the  amount  of  his  compensation,  he  is  e 

to  the  am&,  thus  specified  and  no  more.  If  it  direc 
he  shall  be  aiiowed  a  compensation,  taut  does  not  spec 
rate  or  amount,  he  is  entitled  to  such  compensation  as  ; 
reasonable  under  the  circumstances.  [If  there  are 
more  trustees  the  compensation  shall  be  apportioned 
the  trustees  according  to  the  services  rendere<l  by  th< 
spectively].  (InelTect  60  days  from  and  afl?r  I\lar 
1909.     Stats.   1900,   Chap.    151.)  Civ.    Code 


Title  VIII,  Ciiap.  II.]    TRUSTS  FOR  BENEFIT  OF  THIRD  PERSONS.         §§  2283-2289 

6.  By  the  superior  court.     [Ameiidment,  approved  February  15,  1883;  Statutes 

and  Amendments  1883,  3;  look  effect  from  passage.] 

Discharge  of  trustee. — The  above  section  section;  be  cannot  resign  of  his  own  mere  will: 

is  exclus-ive.     A  trustee  once  having  ass.umctl  CriKjerx.  IlaUiday,  11  Paige,  319;  Shepptrd  v 

to  act  as  such  cannot  be  relieved  from  perform-  McEvers,  4  Johns.  Ch.  18G;  Die/endor/y.  Spta^ 

ance,  except  by  death,  or  as  specified  in  the  above  ker,  10  N.  Y.  240. 

2283.    Removal  of  trustees  by  court. 

Sec.  2283.  The  superior  court  may  remove  any  trustee  who  has  violated  or 
is  unfit  to  excute  the  trust,  or  may  accept  the  resignation  of  a  trustee.  [Amend- 
ment, approved  April  G,  1880;  Amendments  1880,  8  {Dan.  ed.  127);  took  eff'ect 
immediately.] 

ARTICLE  VI. 

SUCCESSION    OR   APPOINTMENT    OF   NEW   TRUSTEES. 

2287.    Vacant  trusteeship  filed  by  court. 

Sec.  2287.     The  superior  court  may  appoint  a  trustee  whenever  there  is  a 

vacancy  and  the  declaration  of  trust  does  not  provide  a  practical  method  of 

appointment.     [Amendment,  approved  April  G,  1880;  Amendments  1880,  8  [Ban. 

ed.  127);  took  effect  immediately,] 

Vacant  trusteeship:  " Leqrjftt  v.  Hunter,  \d  caused  by  resignation  or  removal:  Matter  of 
N.  Y.  4-i9.  Tills  provision  is  broader  tlian  the  Slevennoii,  3  Paige,  420;  Matter  of  Van  Sclioon- 
former  rule,  which  applied  only  to  vacancies     hoven,  5  Id.  559: "  Commissioners'  note. 

22£8.    Survivorship  between  co-trustees. 

Sec.  2288.     On   the   death,   renunciation,   or  discharge   of  one   of  several 

co-trustees  the  trust  survives  to  the  others. 

Survival  of  trust  to  co-trustee. — Wherever  if  one  of  their  number  dies  the  trust  and  power 

by  the  teims  of  a  trust  to  convey  realty  it  is  to  sell  survives  to  the  others:  Id. 

douldful  whether  tiie  trustees   take  as   jciint  Tliis  section  is  consistent  with  .section  860; 

tenant  or  as  tenants  in  common,   courts  will  see  also  sec.  2268,  ante. 

hold,  if  ])os.sible,  that  they  take  as  joint  ten-  Survival  of  guardianship:    See  sec.   252, 

ants:  Saunders  v.  ticUmadzLe,  49  Cal.  59.     And  ante. 

2289.   Superior  court  as  trustee. 

Sec.  2289.  When  a  trust  exists  without  any  appointed  trustee,  or  where  all 
the  trustees  renounce,  die,  or  are  discharged,  the  superior  court  of  the  county 
where  the  trust  property,  or  some  portion  thereof,  is  situated,  must  aj^point 
another  trustee,  and  direct  the  execution  of  the  trust.  The  court  may,  in  ita 
discretion,  appoint  the  original  number  or  any  less  number  of  trustees. 
[Am<')idinenl,  approved  April  6,  1880;  Amendments  1880,  8  {Ban.  ed.  127);  tooh 
effect  im  mediately.  ] 

Appointing  trustee  by  the  court — See  suggestion  as  to  the  proper  course  to  pursue:  1 

Perx-y  on  Trusts,  sec.  282  et  seq. 

387 


§§  2295,  2296 


OBLIGATIONS. 


[Biv.  Ill,  Part  IV, 


TITLE   IX. 

AGENCY. 

Cecapteh  I.     Agency  in  General 2295 

II.     PAitTicuLAR  Agencies 23G2 


CHAPTER  I. 

AGENCY  IN  GENERAL. 

Article  I.     Df.ftxitton  of  Agexcy 2295 

II.     ArTiioRiTY  OF  Agents 2.']04 

III.  MtTTUAL  Obligations  of  Principals  and  Third  Persons 2330 

IV.  Obligations  of  Agents  to  Third  Persons C."i32 

V.     Delegation  of  Agency 'SM^ 

VI.     Termination  of  Agency 23.>5 

"Under  this  head  the  representation  of  one  a  branch  of  service,  and  are  defined  in  the  title 

person  by  anotlier  is  the  only  subject  treated,  on  that  subject.     So  far  as  these  reiatiuiis  ore- 

The  ri\;hts  acquired  by  tliird  persons  against  at.;  a  mutual  trust,  they  are  re^'ulatod  by  the 

both  the  principalaud  the  agent  are  here  stated,  title  ou  trust:"  Commissioucrs'  note. 
The  mutual  relations  of  principal  and  agent  are 

ARTICLE  I. 

definition  of  agency. 
2295.    Agency,  what. 

Sec.  2295.     An  agent  is  one  who  represents  another,  called  the  principal,  in 
dealings  with  third  persons.     Such  representation  is  called  agency. 


Delegated  authority. — In  every  definition 
of  an  agent  the  one  clement  in  common  is  the 
recognition  of  the  derivative  authority  of  the 
agent;  and  tliis  clement  is  t!ie  real  distinguish- 
ing feature  of  the  contract  of  agency:  Story  on 
Agency,  sec.  3;  ICvans  on  Agency,  1. 

Agent  and  attorney. — Tlie  terms  "agent" 
and  "attorney"  are  fret|uently  used  synony- 
mously: Pratt  V.  Putnam,  13  Mass.  303;  l)ut  this 
is  inaccurate.  The  term  "agent"  is  generic;  the 
term  "attorney  iu  fact  "is  specific.  An  attorney 
in  fact  is  an  agent.  An  agent  is  not  always  an  at- 
torney in  fact.  The  terms  are  not  synonymous: 
Portfrw  llerminvi,  8  C;d.  019.  Attorneys  are  of 
two  kinds,  attorney  at  law  and  attorneys  iu  fact. 


The  latter  term  may  include,  says  Mr.  Story, 
all  other  agents  employed  in  any  business;  but 
it  is  sometimes  used  to  designate  person  t  who 
act  under  a  special  agency,  so  t!iat  tliey  are 
appointed  hi  factum  for  the  d  'cd  or  act  rei|uired 
to  bo  done:  Story  on  Agency,  soo.  25.  liut  iu 
this  state  it  has  been  decided  tiiat  the  term  \a 
used  iu  the  latter  sense:  Porter  v.  JJenuaini, 
supra. 

Immoral  and  illegal  agencies  cannot  be 
established:  Wliarton  on  Agency,  sec.  26; 
Story  on  Agency,  sees.  11,  19.3. 

Mniter  and  servant:  See  sees.  2003  et  seq. 

Factors:  See  sees.  202G  et  seri. 

Agents:   See  article,  sees.  2310-2022. 


2296.    Who  may  appoint,,  and  xoho  may  be  an  agent. 

Sec.  229G.     Any  person  having  capacity  to  contract  may  appoint  an  agent, 
and  any  person  may  be  an  agent. 


"Who  may  be  a  principal. — Idiots,  luna- 
tics, and  other  persons  not  NHJ^'/nv's-,  are  wholly 
incapable;  and  infant?  and  married  women  are 
incapable,  except  under  special  circumstances: 
Story  on  Agency,  sec.  G. 

JUiirrinl  woman. — A  married  woman,  not  a 


7  Ga.  5G8;  Cumminrjs  v.  PowpU,  8  Tex.  90; 
Fcnjusoii  v.  Bell,  17  Mo.  351;  S/irop/iire  v. 
B.'trjis,  4  5  Ala.  108;  Bazemai  v.  Browiiiiitj.  31 
Ai-k.  334;  C/ia/dn  v.  Sha/rr,  4'.)  N.  Y.  '412: 
Danatl  v.  (Iravcff,  7  Bush,  4o7.  But  "a;i  infant 
may  autiiorizj  anotlier  person   to   do  any  act 


sole  tradci',  cannot,  except  perha[is  as  to  her     wliicli  is  for  his  l>ene(it:"  Sbory  on  Ajeucy,  sec 


separate  estate,  appoint  an  agent  or  attorney 
either  l)y  deed  or  parol:  Patlon  v.  Slpward,  10 
Ind.  233;  Huwnrr  v.  Conanf,  10  Vt.  9;  Gillespie 
V.  WorJ'onl,  2  Col.  G33;  Ca/dwell  v.  lVa//ers, 
18  Pa.  St.  79;  Phi'Ups  v.  Burr,  4  Daer,  113. 
But  see  section  1,58,  ante,  as  to  married  woman's 
power  to  make  contracts  in  California. 

IiifanU  cannot  delegate  authority:  Sec.  33, 
ante.  The  general  rule  appears  to  bo  that  all 
acts  done  by  infants  through  an  agent  or  attor- 
ney in  fact  are  void,  nob  merely  voidal)!e:  Fct- 
row  V.  Wiseman,  40  Lad.  198;  Strain  v.  Wrljht, 


G;  Tucker  V.  Morcland,  10  Peters,  .53;  Wii  uton 
on  Agency,  sec.  12.  An  infant  may  execute  a 
promissory  note  by  an  agejit,  and  an  infant 
])romi3fje  may  also  authorize  ani't!ierto  transfer 
a  note  by  indorsement  for  him,  an  1  the  transfer 
is  valiil  unl;il  avoided:  IIa^lii)[/i  v.  iJoUarhide, 
21  Cal.  135;  irardijv.  Waters,  33  Mo.  4)0;  see 
also  WhUnci/  v.  Dutch,  14  Mass.  457.  Tlie  doc- 
trine that  an  infant's  acts  done  thro  igh  an  .agent 
are  Void  should  at  all  events  be  restricted  to  acts 
done  uadjr  mere  naked  powers  of  attorney  to 
do  acta  requiring  an  authority  under  seal:  13 


3Sd 


Title  IX,  Cuap.  1.] 


AGENCY  IxV  GENERAL. 


§§  2297-2304 


Am.   Law  Rev.,   sec.   2SS;   Ewell's   Evans  on 
Agency,  12,  note. 

i\'>^/  c  imp3'(---i. — When  one  of  -the  parties  to 
a  contract  is  of  unsound  mind,  and  the  fact  is 
unknowii  to  the  other  contracting  parly,  no 
advantage  having  been  taken  of  the  lunatic, 
this  will  not  vacate  a  contract,  especially  when 
it  is  executed  in  whole  or  in  part  anil  the  parties 
cannot  he  wholly  restored  to  their  original 
pos  tion:  Youikj  v.  Stevens,  43  N.  H.  133;  />//- 
reus  V.  MrKensic,  23  Iowa,  343;  Pcrnoii  v.  li'ar- 
ren,  14  Barb.  4SS;  Beats  v.  See,  10  Pa.  St. 
56;  Cai>r,pry.  Slhiner,  14  K.  J.  Eq.  389;  Wilder 
V.  Wial.it/,  34  Ind.  181;  McCormick  v.  Liltfer, 
85  111.  G2;  see  also  Ewell's  Evans  on  Agencj^, 
sec.  13. 


"W^io  may  be  agents. — Generally  all  per- 
sons, except  noa  compote-f  mentis,  may  act  as 
agents:  Governor  \.  Daily,  14  Ala.  4G9  (a  slave); 
JJroicu.  V.  Hartford  Fire  Ins.  Co.,  117  ilass.  479 
(an  infant  partner);  Telker  \.  Emerson^  10  Vt. 
033  (wife);  McKinlej  v.  MeGretjor,  3  Whart. 
309  (wife);  Wharton  on  Agencj',  sec.  14;  J/r- 
Williams  V.  Detroit  Cent.  Mil'.t  Co.,  31  ilich. 
274  (corporation),  and  cases  there  cited. 

A  person  liaviiuj  an  cdver-^e  interest  to  tli« 
principal  in  any  transaction  cannot  I)e  an  agent 
of  sucli  principal  in  that  transaction:  Bunker 
V.  Mil'S,  30  Me.  431;  Walker  v.  Palmer,  24 
Ala.  358;  Story  on  Agency,  sec.  9;  Adanvt  v. 
Sralp-1,  57  Tenn.  337;  lOwell's  Evans  on  Agency, 
18;  Ba)Jis  v.  Jiulah,  8  Conn.  145. 


2297.    Agents,  general  or  special. 

Sec.  2297.     An  agent  for  a  particular  act  or  transaction  is  called  a  special 
agent.     All  others  are  general  agents. 


V/hsn  the  agent  exceeds  his  special  au- 
thority, a' id  in  so  doing  makes  his  principal 
lia'ile,  the  latter  has  a  claim  to  conipe;isation 
from  the  agent  for  such  damages  as  have  re- 
BuUed  from  the  unauthorized  act:  Dodije  v. 
Til'-stoii,  12  Pick.  32S;  Clark  v.  RiherU,  23 
■Midi.  500;  Ifoice  v.  Southerlaml,  39  Iowa,  484; 
Price  V.  Kei/es,  02  N.  Y.  378;  McDermid  v. 
Cotloii,  2  Brad.  A  pp.  297. 

Question  of  fact.  —The  agency  and  extent 
of  autlionty  is  a  question  of  fact  for  the  jury: 
Diekiujion  Co'oiti/w  Mississippi  Valley  Ins.  Co., 
41  Iowa,  280;  Beringor  v.  Meanor,  85  Pa.  St. 
223. 

A  general  agent  may  bind  his  principal 
when  acting  witiiin  the  scope  of  the  general 
autliority  ccnfeircd  upon  him,  even  when  he 
violates  certain  iirivate  instructions:  Story  on 
Agency,  sec.  7.3;  Allen  v.  Oijden,  1  AVash. 
174;  Bryant  v.  Moore,  26  Me.  84;  Fitz-^im- 
mons  V.  Jostin,  21  Vt.  129;  Bailer  v.  Maples, 


9  Wall.  706;  Morei/  v.  Wehh,  85  Barb.  22;  An- 
d'-rsou  V.  Slate,  22  Ohio  St.  305;  Willard  v. 
Bnckinglinm,  30  Conn.  305;  Morton  v.  Scidl, 
2.?  Ark.  289;  Palmer  v.  Cheney,  35  Iowa,  281; 
Wharton  on  Agency,  sec.  130;  see  sec.  2317, 
2)oxt. 

A  special  agent  does  not  bind  his  principal 
when  he  exceeds  the  special  and  limited  au- 
thority conferred  upon  him,  unless  the  prin- 
cipal has  held  him  out  as  possessing  a  mora 
enlarged  authority:  See  note  to  Uossiter  v. 
Rossder,  24  Am.  Dec.  05;  Aiidreirs  v.  Knee- 
la  ml,  6  Cow.  354;  Herbert  v.  Kneeland,  32  Vt. 
310;  Jlateh  v.  Tarjlor,  10  N.  H.  538;  see  sec. 
23 1 7,  post. 

Partnership. — Each  partner  is  held  out  as 
a  general  agent,  and  his  acts  are  Ijinding,  not- 
witlistanding  he  has  violated  p'rivate  instruc- 
tions or  secret  articles  of  copartnership:  United 
States  Hank  v.  Binney,  5  Pet.  529;  CoUyer  on 
Part.,  by  Phillips,  c.  1,  pp.  212-215,  and  note. 


2233.    Agency,  actual  or  ostensible. 

Sec.  2298.     An  agency  is  either  actual  or  ostensible. 
Acttial    agent's    authority;    Sees.    2315,        Ostensible  agent's  authority:  Sees.  23L5, 


23IG,  2ol8,  2ol9. 


2317-2319,  2334. 


2299.   Actual  agency. 

81:0.  2299.  An  agency  is  actual  wlien  the  agent  is  really  employed  by  the 
principal. 

2330.    0.<tensihle  agency. 

Sec.  2o00.  An  agency  is  ostensible  when  the  principal  intentionally,  or  by 
want  of  ordinaiy  care,  causes  a  third  person  to  believe  another  to  be  his  agent 
who  is  not  really  employed  by  him. 

Sec  sec.  2317,  and  note. 

ARTICLE  II. 

AUTHOIIITY  OF  AGENTS. 

2334.    What  aufhorify  may  he  confi-rred. 

Sec.  2oU4:.  An  agent  may  be  authorized  to  do  any  acts  which  his  principal 
might   do,   except  those  to  which  the  latter   is  bound  to   give  his  personal 

attention. 


D'jl='f  ation  of  authority  by  agent:  Sees. 
23  ;;)-•_>;{  1. 

Ili^g-.l  and  immoTEil  agencies  cannot  be 
estibis  ed:  Wliaiton  on  Agency,  scc.  20; 
Stoiy  ou  Agency,  sues.  11,  195. 


Corporations  aggregate  cannot  act  at  all 
exccft  througli  agents:  Story,  .sec.  10;  Faetort 
eie.  Co.  v.  Marine  Dry- dock  tic.  Co.,  31  La.  Ana. 
149. 


.389 


§§  2305-2310 


OBLIGATIONS. 


Piv,  III,  Part  IV, 


2335.   Agnil  may  perform  acts  required  of  principal  by  code. 

Sec.  2:J05.  Every  act  which,  according'  to  this  code,  may  be  done  by  or  to 
any  person,  may  be  done  by  or  to  the  agent  of  such  person  for  that  i^urpose, 
unless  a  contrary  intention  clearly  appears. 

2306.   Agi'id  cannot  have  authority  to  defraud  principal. 

Sec.  230G.  An  agent  can  never  have  authority,  either  actual  or  ostensible,  to 
do  an  aot  which  is,  and  is  known  or  suspected  by  the  person  with  whom  he 
deals  to  be,  a  fraud  upon  the  principal. 


Fnud  on  prinoipa! — If  a  person  colhulea 
with  the  ageut  to  cheat  the  principal,  the  latter 


is  not  responsible  for  theact  or  knowledge  of  the 
agent:  Nat.  L.  Ins.  Co.  v.  Minch,  53  N.  Y.  144. 


2307.    Creation  of  agency. 

Sf.c.  2307.     An  agency  may  be  created,  and  an  authority  may  be  conferred, 
by  a  precedent  authorization  or  a  subsequent  ratification. 


bim  direct  authority  in  the  premises  to  the  ex- 
tent to  which  such  act  reaches.  Tliat  a  sul (se- 
quent ratification  is  equally  effectual  as  an 
original  authority  is  well  settled:  Nea-lnn  v. 
Broiisoii.  13  N.  Y.  594;  J/o.«  v.  /'o.s.s/e  Mining 
Co.,  o  Hill,  137;  Weed  v.  Carimiler,  4  WenJ. 
211);  Peterson  v.  Mayor  of  New  York,  )7  N. 
Y.  4r)3;  lloyt  v.  Thompson,  19  Id.  218;  see  note 
to  sec.  2310,  post:"  Commissioners'  note. 


Subsequent  ratiacation. — Acts  of  an  agent 
without  authui-ii;y,  subsequently  ratified  by  the 
principal,  bind  the  principal  back  to  the  incep- 
tion of  the  transaction:  Taylor  v.  Robinson,  14 
Cal.  39G;  Mc(,'ral-en  v.  San  Franckco,  IG  Id. 
501;  Clealand  v.  Walker,  40  Am.  Dec.  238;  see 
infra,  sec.  2310. 

"If  a  person  ratifies  the  act  of  one  who  has 
assumed  to  be  his  agent,  the  efiect  of  the  trans- 
action is  the  same  as  if  he  had  actually  given 

2308.  Consideration  unnecessary. 

Sec.  2308.  A  consideration  is  not  necessary  to  make  an  authority,  whether 
precedent  or  subsequent,  binding  upon  the  principal. 

2309.  Form  of  authority. 

Sec.  2309.  An  oral  authorization  is  sufficient  for  any  purpose,  except  that  an 
authority  to  enter  into  a  contract  required  by  law  to  be  in  writing'  can  only  be 
given  by  an  instrument  in  writing. 


Statute  of  fraud:  Sec.  1G24,  ante. 

Contract  of  sale  of  realty. — AVith  respect 
to  the  difTereiice  between  a  verbal  authority  to 
an  agent  to  sell  real  estate  and  a  like  authority 
to  execute  a  contract  of  sale,  prior  to  the  code, 
see  ])ntr!i  v.  /Jobson,  40  Cal.  240. 

Sigaiiis principjils  aame. —Agent's signing 


and  sealing  with  the  principal's  name,  liy  his 
authority  express  or  implied,  and  in  his  pres- 
ence, is  valid:  Vkleaa  v.  Gr-Jfin,  21  Cal.  3S9; 
llanford  v.  McNair,  9  Wend.  5G;  Gardner  v. 
Gardner,  5  Cush.  483. 

Power  of  attorney  to  ezecute  mortsage: 
See  sec.  2933,  post. 


2310.    liatification  of  agent's  act. 

Sec.  2310.  A  ratification  can  be  made  only  in  the  manner  that  would  have 
been  necessary  to  confer  an  original  authority  for  the  act  ratified,  or  where  an 
oral  authorization  would  suffice,  by  aceepLing  or  retaining  the  benefit  of  the  act, 
with  notice  thereof. 


SuSQcisncy  of  ratiSoation. — Where  a  pecu- 
liar form  of  authorization  is  required  to  enable 
an  agent  to  execute  a  contract,  the  same  form 
must  be  used  in  the  ratilication:  Borel  v.  Ji'ol- 
lins,  30  Cal.  408;  RfcomUat  v.  Sansevain,  32 
Id.  37G;  Wood  v.  Goodrich,  12  V/end.  SC."); 
Dispatch  Lu:e  v.  Bellamy,  12  N.  H.  232;  Grove 
v.  Jlodjen,  55  Pa.  St.  504;  Cady  v.  Sheppnrd, 
II  Pick.  400;  Skinner  v.  Dayton,  19  Johns. 
51.3. 

Knowledge  of  the  facts,  i.  e.,  "no'iice." 
A  ratification  is  not  bindin',',  and  may  be  rc- 
Bcinded,  if  nuido  \\ithout  full  knowledge  of  the 
facts:  See  sees.  2314,  pod;  Davidson  v.  Dal  as, 
8  Cal.  227;  Mar-Jon  v.  Pioche,  8  Id.  522;  Du- 
pont  v.  \Vcr(h")nan,  10  II.  .354;  UIrn  v.  B.  R. 
d-  A.  Go..  20  I.l.  C02;  Billlu,/.-i  v.  Morrow,  7  Id. 
171.    "To  constitute  a  ratification,  theprinc  pal 


must  be  acquainted  with  that  which  has  actn- 
ually  been  tlone:"  Dean  v.  I'as^ett,  57  M.  040. 
It"  tlie  facts  are  open  to  him,  and  no  suppres- 
sion is  proved,  he  will  be  presumed  to  bo  duly 
inf.'rmcd:  Meehan  v.  Forrester,  52  N.  Y.  277. 

Ritiiioation  of  part:  See  sec.  231 1. 

EvideaoG of  ratiiloation. — si'mce. — When 
one  is  informe-l  of  a  contract  made  iu  his 
name,  and  by  virtue  of  pretended  authority 
from  him,  and  then  remains  silent  and  does 
not  re|iudiate  the  contract  within  a  reasonable 
ti:n'.',  he  is  presumed  to  ratify  the  contract: 
P'd'.t  V.  Shi/bert,  50  Am.  Dec.  718,  an  1  note; 
Ba<sett  V.  Brown,  105  Mass.  551;  //an'>-  v. 
Drike,  40  P.arb.  ISO;  K'lsey  v.  Nat.  P.!:,  f)9 
I'a.  Sc.  426;  Hammond  v.  Ilnniin.  2)  Mich. 
371;  Rc'se  v.  Medlock,  27  Tox.  120;  Wharton 
on  Agency,  sec.  83. 


390 


Title  IX,  Chap.  I.] 


AGENCY  IN  GEXERAL. 


§§  2311-2ai3 


Betajniiir/  benefits. — Tlio  iirincipal,  after  re- 
tainini;  the  benefit^;,  witli  full  kuoulctl;;c  of  tlie 
facts,  is  estopped  from  denying  tho  act  of  tlie 
assumed  a;4cnt:  Grojan  v.  San  Francisco,  IS 
Cal.  590;  see  Wharton  on  Agency,  see.  89, 
where  many  cases  illustrating  this  familiar 
principle  are  collect-.d. 

llriniihiij  t^iitt. — Suing  on  a  contract  necessa- 
rily ratifies  it:  Partridge  v.  White,  56  Me.  5G4; 
Jheinuin  v.  Walker,  '21  Ark.  539;  llai-ris  v. 
Miner,  2S  111.  i;J5.  So  suing  an  agent  for  the 
proceeds,  and  not  fur  the  damages  caused  by 
his  unauthorized  acts,  i.  e.,  suing  in  contract 
and  not  in  tort,  ratifies  the  contract:  JJa7n  v. 
Boodji,  10  N.  H.  411;  President  of  Ilarlf^rd 
Bank  v.  Barry,  17  Mass.  97;  Frank  v.  Jenkins, 


22  Oliio  St.  597;  Bank  of  Beloit  v.  Bcale,  43  N. 
Y.  47;{. 

Any  acts  in  pais  tending  to  show  adoption  of 
agent's  course  may  i)e  received  to  show  ratifi- 
cation: Wharton  on  Agency,  sec.  87;  Story  on 
Agency,  sees.  25o-"25G.  And  the  conduct  of 
the  principal  is  construed  liberally  in  favor  of 
the  agent:  Id.;  Minturn  v.  Burr,  IG  Cal.  107; 
Wri'jt  V.  Salomon,  19  Id.  04. 

Ratifying  fraud. — When  a  principal  ratifies 
a  sale  he  rati  lies  the  acts,  however  unfair,  by 
whicii  the  sale  was  brought  about,  and  becomes 
responsible  for  them:  Bennett  v.  Jndson,  21 
N.  Y.  2;)3;  Mandorffw  IVicki-r.shum,  Go  Pa.  St. 
87;  Cochran  v.  Vhitwood,  59  111.  53;  see  also 
note  to  sec.  2312. 


2311.   licdificafion  of  part  of  a  transaction. 

Sue.  2311.     Ratification  of  part  of  an  indivisible  transaction  is  a  ratification 
of  the  whole. 


at  the  time  of  the  alleged  ratification:  Smith  v. 
Tracy,  30  N.Y.  79;  Bakhrin  v.  Bnrroivs,  47  Id. 
199;  and  see  note,  "  Knowledge  of  the  Facts," 
sec.  2310,  aide;  and  Cochran  v.  Chitivood,  59  IlL 
53,  contra;  and  see  sec.  2323,  post. 


Partial  ratification. — A  principal  ratifying 
what  was  within  the  range  of  his  intended  in- 
structions does  not  ratify  acts  on  the  part  of 
his  agejit  of  which  he  was  not  infoi-med.  Thus, 
in  ratifying  a  sale,  he  does  not  thereby  ratify  au 
unauthorized  warranty  of  which  he  is  ignorant 

2312.  W]ien  ratification  void. 

Sec.  2312.     A  ratification  is  not  valid  unless,  at  the  time  of  ratif^dng  the  act 
done,  the  principal  has  power  to  confer  authority  for  such  au  act. 

Ratifying  illegal  acts,  forgery.  —Although 
it  is  a  cardinal  [iriuciplc  that  illegal  or  immoral 
acts,  or  acts  against  public  policy,  cannot  be 
ratified — qiod  ah  initio  iion  va'et,  tractu  tern- 
peris  non  eonvalescit:  1  Story's  Eq.  Jur.,  sec. 
307;  Evans  on  Agency,  49;  Story  on  Agency, 
see.  241 — j'et  it  has  been  held  in  the  United 
States  that  a  person  may  ratify  the  forgery  of 
his  name:  Howard  v.  Duncan,  3  Lans.  174; 
Forsyth  V.  Day,  4G  Me.  17G;  Fitzpatrirk  v. 
School  Commissioners,  7  Humph.  224;  Green- 

2313.  Ratification  not  to  work  injury  to  third  persons. 

Sec.  2313.     No  unauthorized  act  can  be  made  valid,  retroactively,  to  the 
prejudice  of  third  persons,  without  their  consent. 


frld  B'k  V.  Crafts,  4  Allen,  447;  Garrett  v.  Yon- 
tn;  42  Pa.  St.  143;  Union  irk  v.  Middlebrook, 
33  Conn.  95;  Thome  v.  Bell,  Lalor's  Siipp.  430; 
Boljy  V.  Cossitt,  73  111.  G3S;  Stcings  v.  Wiler,  32 
Id.  387;  Wharton  on  Agency,  sec.  71. 

Prior  to  tli3  code,  the  same  doctrine  as  that 
embodied  in  the  above  section  was  adopted  by 
this  supreme  court:  McCraken  v.  San  Fran- 
cisco, IG  Cal.  591;  Zottman  v.  San  Francisco,  20 
Id.  101;  Peo2jle  v.  Swift,  31  Id.  28. 


More  extensive  rule. — In  speaking  of  this 
section,  the  commissioners  say:  "  This  is  per- 
haps a  broader  rule  than  heretofore  existed. 
But  great  diiiiculty  has  been  felt  in  attempting 
to  reconcile  the  cases."  The  section  is  indeed 
broader  than  the  rule  generally  recognized: 
See  Story  on  Agency,  sees.  24G,  247.  A  cor- 
rect statement  oi  the  principle,  however,  seems 
to  be  the  following:  A  third  party  whose 
rights  have  not  accrued  intermediately,  /.  e., 
since  the  act  oi  the  unauthorized  agent  and 
prior  to  the  prop.oscd  ratification,  is  ]>recluded 


United  States,  4  Ct.  CI.  511;  Xorfon  v.  Bidl, 
43  Mo.  113.  Tills  supreme  court  would  seem 
at  least  by  implication  to  have  coincided  in 
the  above  rule.  "A  ratification  rcIaLiug  back 
to  the  inception  of  a  transaction  cannot  defeat 
the  rights  of  third  persons  acquired  between 
the  act  of  the  agent  and  the  ratification  by  the 
principal,  as  attachments  levied  on  property 
of  a  dei)tor  after  sale  by  or  to  an  agent:"  Tay- 
lor V.  Bobinson,  14  Cal.  39G. 

A   careful   examination   of   the   cases   leads 
almost  iucvitaldy  to  the  conclusion  that  the  re- 


from  contesting  the  right  of  the  principal  to  go     suit  in  many  of  them  depended  upon  some  in 


back  to  the  original  inception  of  the  contract; 
but  innocent  strangers  with  intervening  vested 
rights,  intermediately  accrued,  are  not  so  pre- 
cluded. Examples  under  tlie  first  clause  may 
be  found  in  Armstroinj  v.  Gilchrist,  3  Johns. 
Cas.  424;  Pratt  v.  Putnam,  13  Mass.  379; 
Copdand  v.  Ins.  Co.,  6  Pick.  198;  Uo'jers  v. 
Kn:  eland,  10  'Wend.  218;  Vincent  v.  Rather,  31 
Tex.  77. 

Examples  under  the  second  clause  maj'  be 
found  in  Freeman  v.  Bo>/nton,  7  Mass.  4S;>; 
Bossiter  v.  Bossiler,  8  Wend.  497;  Bank  of 
Utica  V.  Smith,   18  Johns.    230;   Stoddart   v. 


tervening  circumstances  of  an  cqtiitab!e  char- 
acter. "  The  true  distinction  seems  to  be  this: 
If  ratification  on  the  part  of  the  principal  was 
an  act  to  bo  anticipated  as  morally  certain  by 
parties  having  an  adverse  interest,  then  ratia- 
c  .lion  i.3  no  surprise  to  tli'in,  and  cannot  mis- 
leail  ihcm,  and  they  are  bound  to  treat  the 
01  iglnal  unautho'-ized  act  as  one  wliich  is  sub- 
sccjueutly  to  be  authorized:"  Wharton  on 
Age-ncy,  sec.  80;  see  aliO  Mi /turn  v.  lutrr,  IG 
Cal.  107.  See.  generally,  Story  on  Agency, 
sees.  245,  24G;  Wharton  on  Agency,  sec.  78. 


391 


§§  2314-2318 


OBLIGATIONS. 


[Div.  Ill,  Paet  IV, 


2314.    Fieficiasion  of  ratification. 

Sec.  2o14.  A  ratification  may  be  rescinded  when  made  without  such  consent 
as  is  required  iu  a  contract,  or  with  an  iiuperl'ect  knowledge  of  the  luaterial 
facts  of  the  transaction  ratified,  but  not  otherwise. 


See  note, 
2310,  ante. 


"Kimvvledge  of   the   Facts,"  sec. 
For  decisions  held  in  consonance 


with  the  text,  see  Wharton  ou  Agency,  sees. 
Gj,  73. 


2315.  31<'as(ire  of  agent's  authority. 

Sec.  2315.  An  agent  has  such  authority  as  the  principal,  actually  or  ostensi- 
bly, co)ifer.s  upon  him. 

2316.  Actual  aulhoritij,  what. 

Sec.  231G,  Actual  authority  is  such  as  a  principal  intentionally  confers  upon 
the  agent,  or  intentionally  or  by  want  of  ordinary  care  allows  the  agent  to 
believe  himself  to  possess. 


Agent  acting  under  general  authority: 

See  uott!  to  sec.  2207.  Illustrations  of  puwer 
of  agent  to  bind  liia  piincipal  by  acts  within 
the  general  authority  are:  liailroad  conductor 
removing  a  passenger  from  the  train:  Kline  v. 
C.  P.  li.  Co.,  37  Cal.  400;  negligence  of  rail- 
road employee  causing  damage:  Taijlnr  v.  W. 
P.  R.  11.  Co.,  43  Id.  323;  admissions  of  agent 
made  at  the  time  the  act  to  wliich  they  relate 


was  done,  and  with  reference  to  the  subject- 
matter:  Garfull  V.  K.  Frry  W.  Co.,  11  Id. 
3j;  Neely  v.  Najlee,  23  Id.  ir)2;  executing  in- 
strument: Shaver  v.  Ocean  M.  Co.,  21  Id.  45; 
tuL'grapli  company's  employee  sending  false 
message:  Bank  of  Cal.  v.  IF.  U.  T.  Co.,  52  Id. 
280;  and  .=ee  infra,  sec.  2310. 
Actual  agent  defined:  Sec.  2299l 


2317.    04enuble  authority,  what. 

Sec.  2317.  Ostensible  authority  is  such  as  a  principal,  intentionally  or  by 
want  of  ordinary  care,  causes  or  allows  a  third  person  to  believe  the  agent  to 
possess. 


Ostensf^le  a^snt  deSnsd:  Sec.  2300. 

Esto-pp2l — Tliis  is  a  statement  of  the  famil- 
iar principle  that  the  agent's  authority  extends 
as  far  as  he  has  been  held  out  to  the  world  as 
possessing  the  power  which  he  nses.  The 
whole  principle  i.f  implied  agency  is  really  an 
application  of  the  doctrine  of  estoppel  in  pais. 

Modes  of  implying  authority.  —  From 
the  iiature  and  cu.'itoinary  inethodi  of  the 
business  in  M-liich  the  agent  is  employed  by 
the  principal,  even  though  he  be  employed  for 
the  first  time;  whether  express  instructions  are 
given  o'-  not:  Ilrlman  v.  Potter,  0  Cal.  13  (in- 
stance of  imautliorized  execution  of  promissory 
note);  Kor'h  River  Hank  v.  Aymir,  3  lidl  (N. 
Y.),  2G2;  (  lajlin  v.  Lenhcim,  60  N.  Y.  301;  see 
note,  "Usage,"  sec.  2297,  ante;  and  Story  on 
Agency,  sec.  GO. 

From  a  prior  course  of  dealing  between  the 
principal  and  agent,  although  the  very  nature 


have  had  no  notice  of  the  termination  of  the 
agency:  Van  Diasen  v.  Star  M.  Co.,  3G  Cal. 
5'71. 

From,  a  subsequent  ratification:  See  sees.  2307, 
2310,  2312-2314,  and  notes,  ante. 

F.om  acquiescence. — Wlien  one  permits  an- 
ot'.ier  to  act  for  him  in  his  i>rest-nce,  so  that  in- 
nocent third  parties  are  affected,  lie  cannot 
afterwards,  as  again?t  such  thiid  parties,  tlis- 
pute  such  agency:  Forsi/thev.  Day,  4(3  Me.  196; 
Kclspy  V.  Nat.  Hank,  69  Pa.  St.  426;  Lewis  v. 
Boivrbo/i,  12  Kan.  186;  St.  Lmiis  Pa/:ket  Co.  v. 
Parker,  59  III.  23;  Darnell  v.  Griffin,  46  Ala. 
520.  And  where  one  permits  another  to  hold 
himself  out  to  the  public  as  his  agent,  though 
not  within  his  presence,  he  is  l^ound  by  his  acta 
wiihin  t'.ie  implied  scope  of  such  authority: 
Gdbrailh  v.  Linebenjer,  60  N.  C.  145;  Fai/le 
Bark  v.  Smith,  5  Conn.  71. 

CircumstcUitial  evid?n3e.— The  proof  of 


of  the  agent's  business  might  not  require  any     the  appointment  of  an  agent  may  be  obtained 


such  course  of  dealing,  whether  express  in 
structions  r.re  given  or  not:  Van  Dusen  v.  Star 
etc.  Co.,  30  Cal.  571 :  Davidson  v.  Dallas,  8  11. 
227;  De  Bo  v.  Cordes,  4  II.  117;  IVeed  v.  Car- 
penter, 4  Wc-nd.  211);  Ew/le  Dank  v.  Magdl,  5 
Conn.  71;  Morey  v.  Webb,  58  N.  Y.  350.  So, 
even  rJrcr  the  agency  lias  ceased,  a  princip.-.l 
may  be  bed  in  favor  of  those  dealing  with  the 
agent,  wiio  hj,ve  been  accustomed  so  to  do,  and 


by  moans  of  circumstantial  evidence:  Patterson 
V.  Keystone,  33  Cal.  300;  Fai  v.  Birh-nond,  43 
Vt.  25;  Br'dey  v.  Poole,  '.KS  Miss.  160;  Seeds 
V.  Kahler,  70  Pa.  St.  268;  /]•>  <f>rd  v.  Klein- 
haw,  29  }ilich.  332;  M'lyer  v.  /.;.s-.  Co.,  38  Iowa, 
331;  JVeal v.  Pa'ton,  40  Gj.  o'i'i:  Ilolinii^wrth 
V.  Jfolshansen,  25  Tex.  628;  GiUi  /  v.  Lake  Big- 
ler  Co.,  2  Nev.  214;  Wharton  on  Agency,  sec. 
44. 


2318.    Ajod'a  authority  as  to  persons  having  notice  of  restrictions  upon  it. 

Sec.  2318.  Every  agent  has  actually'  such  authority  as  is  defined  by  this  title 
unless  specially  deprived  thereof  by  his  principal,  and  has  even  then  such 
authority  ostensibly,  except  as  to  persons  who  have  actual  or  constructive 
notice  of  the  restriction  upon  his  authority. 

392 


Title  IX,  Chap,  I.] 


AGENCY  IN  GENERAL. 


§§  2319,  2320 


fact  is  bound  to  know,  at  his  peril,  what  the 
power  of  the  agent  is  and  to  umlerstand  its 
legal  effect;"  see  also  MiidjeU  v.  Dnii,  \1  Id. 
139  (collection  agent);  see  note  "General" 
and  "  Si)ecial  Agent,"  sec.  2297,  ante;  see  also 
Earp  V.  Ridiardson,  81  N.  C.  5;  Silliman  v. 
Frfdericksburq  li.  Co.,  27  Gratt.  119;  Ruj^'erty 
V.  llaldron,  ini^  Pa.  St.  438. 


Duty  of  inquiry. — When  an  agent,  whether 
geneial  or  special,  appears  to  exceed  the  au- 
thority which  lie  may  justly  be  presumed  to 
possess,  it  is  the  duty  of  the  third  party,  exer- 
cising the  caution  of  a  business  man,  to  inquire 
wheLber  such  assumed  authority  is  duly  con- 
ferred: See  Wharton  on  Agency,  sees.  137-l:i9; 
B'mn  V.  nohertson,  24  Cal.  127  (attorney  in 
fact).     "  The  party  dealing  with  an  attorney  in 

2319.    Agent's  necessaty  authorily. 

Sei'.  £319.     An  agent  has  authority: 

1.  To  do  every'thing  necessary  or  proper  and  usual,  in  the  ordinary  course  of 
business,  for  effecting  the  purpose  of  his  agency;  and, 

2  To  make  a  representation  respecting  any  matter  of  fact,  not  including  the 
terms  of  his  authority,  but  upon  which  his  right  to  use  his  authority  depends, 
and  the  truth  of  which  cannot  be  determined  by  the  use  of  reasonable  diligence 
on  the  part  of  the  person  to  whom  the  rej^reseutation  is  made. 

Authority  of  agents. — GeneraVy. — In  or-  agency  impliedly  incorporate  this  usage  in  their 
der  to  bind  liis  principal,  the  agent  must  pur- 
sue hi3  authority  accurately  and  punctiliously. 
A  mere  ci.cumstantial  variance  from  the  au- 
thority in  its  execution  will  not  invalidate  the 
act;  lut  a  substantial  variance  (not  mere  mat- 
ter ^i  form)  from  the  authority  will  not  bind  the 
principal:  Sortk  Ulver  Wk  v.  Ai/niar,  3  Hill 
(N.Y.),2G2;  Nixonx.  //y.«ero(/,rj^o\ms.i>$.  The 
execution  of  a  bond  under  seal  instead  of  a  note 
did  not  bind:  F.rst  Xni.  B"k  v.  Hay,  G3  Mo.  33; 
May  r  a,  d  Aldermen  of  Little  Rock  v.  State  B'k, 
3  Ark.  227.  _ 

Exiept'ion. — This  rule  is  to  be  received  sub- 
ject to  the  exception  of  the  cases  M'here  there  is 
a  general  authority  with  secret  limitations  and 
instructions:  See  note,  "General  Agents,"  sec. 
2297.  aitp. 

Su'jd.  1.  ""Witliin  th3  scopa  of  his  au- 
tliovity  "  A  great  many  cases  illustrating  tliis 
fundamental  principle  wiil  be  found  in  Wharton 
on  Agency,  sees.  120-129;  e.  y.,  a  principal  is 
liable  for  the  rent  of  a  place  of  business  occu- 
pied by  hisagentwliile  carrying  on  the  business 
for  which  he  was  employed:  Tucker  v.  Woohfy, 
64  Earl).  142;   G  Lans.  482. 

The  same  principle  is  expressed  in  Blum  v. 
Robi'iiyoii,  24  Cal.  127.  It  was  held  within  the 
Bcope  of  the  authority  of  a  foreman  of  a  foundry 
to  assign  accounts  due  the  founclry  in  payment 
for  money  borrowed  by  him  for  tlie  use  of  the 
foundry:  Ilo.skiiis  v.  Stonin,  01  Id.  338;  and  see 
cases  and  references  fiupra. 

Usago  interprets  tlie  autliori'y. — When  it 
is  the  usage  of  a  place  that  a  mercantile  agency 
shou  d  bo  executed  ia  a  particular  way,  tlie 
parties  who  authorize  and  agree  to  exercise  this 


contract:  Schuchardt  v.  Allen,  1  Wall.  359; 
Randall  v.  Kchlcr,  00  Me.  37;  Da>/  v.  Holmes, 
103  Mass.  30G;  Smith  v.  I'racy,  36  N.  Y.  79; 
Williard  v.  Backinjham,  33  Conn.  .39.");  Whar- 
ton on  Agency,  sec.  134;  Story  on  Agency,  sec. 
GO. 

Subd.  2.  Representations. — The  repre- 
sentations must  be  made  at  the  time  the  contract 
is  entered  into,  and  nmst  concern  the  stibject- 
matter  thereof:  2  Staikie  on  Evidence,  CO; 
Wharton  on  Agency,  sec.  102;  Story  on  Agency, 
sec.  133;  Garfield  v.  K.  F.  Water  Co.,  14  Cal.  33; 
Keeley  v.  A^«f/^fe,23  Id.  1.j2;  Pi<r^on  v.  Atlantic 
Ban};,  77  N.  Y.  304.  See  a  very  valuable  note  fni 
the  subject  of  declarations  of  agents  when  bind- 
ing on  principal:  Moore  v.  Bettis,  .')3  Am.  Doc. 
773.  The  declarations  of  an  agent  are  not  com- 
petent evidence  against  his  principal  unless  it 
aj^pears  when  they  were  made:  Adams  v.  Hum- 
phreys,  54 Ga.  40G.  Seealso  Stenhou»e  v.  (  harlotte 
etc.  R.R.  Co.,70N.C.  542;  see  the  note  to  il/oorc 
V.  Bettis,  above  referred  to.  Whether  the  per- 
son v.-hose  declarations  are  sought  to  be  intro- 
duced against  the  principal  is  an  agent  or  not 
is  a  question  for  the  jury:  Biyjerstaff  v .  Brigijs, 
3  V/cst  Coast  Rep.  3^3. 

Terms  of  authority. — The  general  rule  ia 
that  the  ajency  must  be  established  aliunde  be- 
fore the  declarations  of  the  .agent  are  admissi- 
ble; for  an  agent  cannot  by  his  own  declara- 
tions establish  an  agency.  He  must  be  called 
as  a  witness  in  the  case,  as  his  statements  are 
only  secondary  evidence:  (S".  <t  L.  Society  v. 
Grrichlen,  01  C-l.  .120;  Slretlerv.  Poor,  4  Kan. 
412;  Maj>p  v.  Plullii>s,  32  Ga.  72;  Briijhamv. 
Peters,  1  Gray,  139. 


2320.    Agent's  power  to  disobey  instructions. 

Sec.  2320.  An  agent  has  power  to  disobey  instructions  in  dealing  with  the 
subject  of  the  agency,  in  cases  where  it  is  clearly  for  the  interest  of  his  prin- 
cipal that  he  should  do  so,  and  there  is  not  time  to  communicate  with  the 
principal. 


Disobeying  instructions.  —  Master  of  a 
ship. — The  most  familiar  instance  under  this 
doctrine  is  the  case  of  a  master  of  a  ship,  who 
in  sudden  emergencies  has  forced  upon  him  the 
character  of  agent  and  supeicargo,  and  may  in 
Buch  circumstances  not  onl}'^  hj'pothev'iate  the 
freight,  ship,  and  cargo,  but  also  sell  the  ship 
and  cargo;  or  where  the  iives  of  the  crew  can- 


not otherwise  be  saved,  cast  the  whole  cargo 
overboard:  The  Gratltudhie,  3  Rob.  255-2G0; 
The  Parketl,  3  Mason.  255;  United  States  Ins. 
Co.  V.  Scott.  1  Johns.  lOG;  Am.  Ins.  Co.  v.  Cos- 
ter, 3  I'aige,  323. 

I\ect'sstty. — The  agent  has  a  good  defense  al- 
way.o  when  he  can  siiow  an  overwhelming  ne- 
cessity, as  where,  during  the  civil  war,  goods 

393 


2321-2323 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


were  taken  from  the  cnstofly  of  the  agent  by     fliscretion  must,  of  course,  be  made  apparent  in 


t!ie  opiiosing  forces  of  the  military  antliorities 
Wealdei/  v.  Pearce,  o  Ilcisk.  401;  Grendea/v. 
Moodi/,  13  Allen,  oG.');  see  Sh^ao  v.  Stone,  I 
Cush.  2"28;  Forrcst.icr  v.  Uordman,  1  Story,  43; 
Dunar  V.  Peril,  -i  Chin.  oGl. 

A(jpji/'s  misconduct  invcdidate!<  the  dcfenfte. 
If,  however,  this  necessity  and  misfortune  are 
encountered  through  the  misconduct  and  cul- 
pable neglect  of  the  agent,  then  tlie  happening 
of  such  casualty  is  no  defense:  Wilson  v.  Wil- 
son, 2G  Pa.  St.  3'J4;  ClccrJ:  v.  Nonrood,  19  La. 
Ann.  110;  Iloadlcy  v.  Norih  Trant.  Co.,  115 
Mass.  301;  llolUulay  v.  Kennard,  12  Wall.  27A. 

Sound  discretion. — The  exercise  of  a  sound 


such  cases:  See  Stury  on  Agency,  9Lh  ed.,  sec. 
119,  note. 

See,  generally,  Story  on  Agency,  sees.  85, 
118,  141,  14-2,  193,  194,  198,208,  237;  Wharton 
on  Agency,  sees.  231,  233,  255. 

Ambiguous  instructions. — Where  the  in- 
structions are  ambiguous,  and  the  .ngent  acta 
honajidc  in  accordance  with  their  probable  im- 
port and  construction,  he  will  not  he  hild  lia- 
ble: Mechanics'  Baidc  v.  Merchnnfs'  Bank,  G 
Met.  13;  Foster  v.  Rodcwell,  104  Mass.  1G7; 
Long  V.  Pool,  08  N.  C.  479;  idursh  v.  Whit- 
more, '2\  Wall.  178;  Merchants'  B  ink  v.  No,- 
tioncd  Baiik  of  Commerce,  91  U.  S.  92. 


2321.    Aiilhority  to  be  construed  hy  its  specific  rather  than  bij  its  general  terms. 
Sec.  2321.     When  an  authority  is  given  partly  in  general  and  partly  in  Hpecific 
terms,  the  general  authority  gives  no  higher  powers  than  those  specifically 
inentioned. 


General  words  in  creating  an    agency 

must  lie  construed  in  reference  to  mattei's 
specially  mentioned:  Taylor  v.  RolAn^on,  14 
Cal.  390;  Story  on  Agency,  sees.  02-71,  and 
notes,  9fch  ed.,  1882;  see  note,  "Ambiguous  In- 


structions," sec.  2320,  ante;  see  numerous  casea 
supporting  the  principle  in  the  above  sectioa 
collected  in  Wharton  on  Agency,  sec.  222,  note. 
See  also  Id.,  sec.  223,  as  to  presumption  against 
grantor  of  power. 


2322.    Exceptions  to  general  authority. 

Sec.  2322.     An  authority  expressed  in  general  terms,  however  broad,  does 
not  authorize  an  agent: 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course  of  business  to  do  so; 

2.  To  define  the  scope  of  his  agency;  or, 

3.  To  do  any  act  which  a  trustee  is  forbidden  to  do  by  Article  II.,  Chapter  I,, 
of  the  last  title. 


Subd.  1.  Agent  acting  in  his  own  name. — 

Thegeiieral  rule  ij  that  a  person  cimtracting  as 
agent  will  be  personally  liable,  whether  he  is 
known  to  be  an  agent  ornot,inail cases vvhere  he 
makes  the  contract  in  his  own  name,  or  volun- 
tarily incui-s  a  personal  responsihility  either  ex- 
press or  implied:  Kirkpafrick  v.  Stabler,  22 
AVind.  214,  2.')4,  255;  Taintor  v.  Prenderijast,  3 
Hill  (N.  Y.),  72;  Simonds  v.  H.-ard,  23'  Pick. 
121;  Chandler  v.  Coe,  54  N.  H.  501;  Story  on 
Agency,  sec.  269;  see  sec.  2335,  post.  A  note 
signed  "  D.  P.  S.,  president  of  Pacific  Wool- 

2323.    What  included  in  authority  to  sell  personal  property. 

Sec.  2323.     An  authority  to  sell  personal  property  includes  authority  to  war- 
rant the  title  of  the  principal,  and  the  quality  and  quantity  of  the  property. 


Growing  Company,"  is  the  note  of  S.  and  not  of 
the  company.  The  words  following  the  si,;na- 
ture  are  mere  desrriptlo  personce:  Chamberlain 
V.  Pacific  W.  G.  Co.,  54  Cal.  103;  and  see  sec. 
2337,  pod. 

Subd.  2.  Defining  scope  of  agency.  See 
sec.  2319,  subd.  2.  ante,  and  note;  Griswold  v. 
Haven,  25  N.  Y.  595. 

Sub.  3.  Obligation  of  agen'-s  as  trustees: 
Sees.  2228-2239,  ante;  Ilubidoex  v.  Parks,  48 
CaL  215. 


Authority  to  warrant. — Authority  to  sell 
includes  a  power  to  warrant  the  title  and  qual- 
jtj'  ot  tlie  thing  sold,  but  not  to  give  unuaual 
warranties,  such  as  that  whisky  sliall  not  be 
seized  for  violation  of  the  revenue  laws  prior 
to  the  sale:  Palmer  v.  IJafch,  40  Mo.  585;  but 
see  2IcKni<ild  v.  Devlin,  52  N.  Y.  399. 

Custom  aflccts  the  power  to  waxTant. 
This  implied  authority  to  give  warranty  has 
been  restricted  to  general  agents  in  Nixon  v. 
J/i/serott,  5  Johns.  58;  Gibson  v.  Colt,  7  Id.  390; 
and  Pandall  v.  Kehlor,  00  Mc.  37;  and  sea 
Smith  V.  Trary,  30  N.  Y.  79;  Story  on  Agency, 
sees.  132,  and  note,  59,  note,  102,  note.  The 
authority  of  Cibson  v.  Colt  has,  iiowever,  been 
overruled  in  Nelson  v.  Coioinfj,  G  Hill,  330. 

But  some  restriction  upon  such  a  general 
statement  of  the  jjrinciiile  as  tliat  in  the  above 
section  has  seemed  necessary  in  many  cases. 
I'crlu'-.ps  the  best  statement  of  the  princi;ile 
will  be  found  in  Benjamin  on  Sales,  sec.  94.\ 


The  learned  author  says:  "The  general  ride  is, 
as  to  all  contracts  including  sales,  that  the 
agent  is  authorized  to  do  whatever  is  usual  to 
carry  out  the  object  of  his  agency;  and  it  is  a 
question  for  the  jury  to  determine  what  ia 
usurd.  If,  in  the  sale  of  the  goods  confided  to 
him,  it  is  usual  in  the  market  to  give  a  war- 
ranty, the  agent  may  give  that  warranty  in  or- 
der to  effect  a  sale."  Several  recent  c.ises  of 
authority  indicate  tiiat  the  law,  as  thus  stated, 
will  be  genera' ly  accepted  as  correct  in  Amer- 
ica: Smith  V.  Tracy,  30  N.  Y.  79,  82;  Ahern  v. 
Goodspee  I,  72  Id.  108,  114;  I/erring  v.  Ska;/i;x, 
02  Ala.  180,  185.  In  this  last  case  the  court 
said:  "We  fully  apjirove  and  adopt  this  lan- 
guage of  this  very  accurate  writer:"  Coolcy  v. 
Pcrrine,  41  N.  J.  L. ;  < Irani  v.  Strutzcl,  53 
Iowa,  712;  Croom  v.  Sliato,  1  Fla.  211;  see 
Wharton  on  A'^'cney,  sees.  124.  188,  189. 
Auctioneers:  See  sec.  23G2,  suhd.  3,  post. 


394 


Title  IX,  Chap.  L]  AGENCY  IN  GENERAL  §§  2324-23^ 

2324.  What  included  in  atithoriiij  to  sell  real  property. 

Sec.  2324.  An  authority  to  sell  and  convey  real  property  includes  authority 
to  give  the  usual  covenants  of  warranty. 

2325.  AutJiorifij  of  general  agent  to  receive  price  of  propertij. 

Sec.  2325.  A  general  agent  to  sell,  who  is  intrusted  by  the  principal  with 
the  possession  of  the  thing  sold,  has  authority  to  receive  the  price. 

Agent  to  collect:  See  article  in  18  Cent,  thorized:  Jhul'jfU  v.  Day,  12  Cal.  IT.O;  Romrd 
L.  J.  K).");  and  sec  ante,  sec.  2021.  v.  Tamer,  42  Ala.  117;   Wharton  on  Agency, 

Lavj-ful  currency.— An  agent  can  receive    sec.  210. 
payuitnt  only  in  nionej',  unless  specially  au- 

2326.  Authority  of  special  agent  to  receive  price. 

■   Sec.  232G.     A  special  agent  to  sell  has  authority  to  receive  the  price  on  deliv- 
ery of  the  thing  sold,  but  not  afterwards. 

ARTICLE  III. 

MUTUAL   OBLIGATIONS    OF   PIIINCIPALS    AND    THIRD   PERSONS. 

2330.  Princijxd,  how  affected  by  acts  nf  agent  ivithin  ncope  of  authority. 

Sec.  2330.     An  agent  represents  his  principal  for  all  purposes  within  the  scope 

of  his  actual  or  ostensible  authority,  and  all  the  rights  and  liabilities  which 

would  accrue  to  the  agent  from  transactions  within  such  limit,  if  they  had  been 

entered  into  on  his  own  account,  accrue  to  the  princij)al. 

See   sec.    2:>22,    suhil.  3,  ante;  ^Yharton   on     Ilunsackcr  v.  Slur;/ts,  21)  IJ.  142;  Ilardaihurgh 
Agency,  sees.    2;il-24G;   Tuite  v.  Walcehe,    19     v.  /jcicoh,  33  Id.  3 j(3. 
Cal.  G<J2;  iS7/o/-es  v.  Scolt  Paver  Co.,  21  Id.  133; 

2331.  Principal,  wtten  bound  by  incomplete  execution  of  authorily. 

Sec.  2331.  A  principal  is  bound  by  an  incomplete  execution  of  an  authority, 
when  it  is  consistent  with  the  whole  purpose  and  scope  thereof,  but  not  other- 
wise. 

Story  on  Agency,  sees.  171-1  SO, 

2332.  Notice  to  agent,  when  notice  to  principal. 

Sec.  2332.  As  against  a  principal,  both  principal  and  agent  are  deemed  to 
have  notice  of  whatever  either  has  no«ice  of,  and  ought,  in  good  faith  and  the 
exercise  of  ordinary  care  and  diligence,  to  communicate  to  the  other. 

The  notice  must  bo  given  to  agent  while  England,"  says  Bradley,  J.,  in  1S70,  in  tha 
acting  for  principal  and  within  Ihe  scojie  of  the  supreme  court  of  tlie  United  States,  "the 
agency:  Bietve  v.  /'nl  BInjf  //.  Co. ,'M  L'al.  IGO;  doctrine  now  seems  to  be  established  that  if 
B'inic  V.  Shaiimhenj,  38  Mo.  228;  Coikj  ir  v.  the  ageut,  at  the  time  of  affectiug  a  purchase, 
Cfiicago  etc.  A'.  Co.,  24  Wis.  157;  and  as  to  no-  has  knowbd^'e  of  any  prior  lien,  trust,  or  fraud 
tice  to  agents  uf  corporations,  see  note  to  Bank  aif>ictiiig  tlie  property,  no  matter  when  he  ac- 
of  riff.sbargh  v.  Wti'dvlvad,  3G  Am.  Dec.  188;  quired  sucli  knowledge,  his  principal  is  alFected 
Wharton  on  Agency,  sees.  183,  184.  There  tliereby:  "  Donald  v.  Bcalfi,  57  Cal.  3J9,  405; 
are  authorities  also  whicli  hold  that  the  notice,  DiKliUed  SpirU>.,  1 1  Wall.  3Go;  lloocij  v.  IJlancfi- 
to  l)ind  the  principal,  must  be  given  to  the  agent  ard,  13  N.  II.  145;  PaUmi  v.  Iii'i.  Co..  43  Id. 
in  the  particular  transaction  to  which  the  no-  375;  Jlart  v.  Bid:,  33  Vt.  252;  sjo  Wharton 
ticc  relates:  Biercev.  Brd  Bluff  Hotel,  ^l  Cal.  on  Agency,  sec.  179,  and  note;  Story  on  Agency, 
160;    Whaiton    on    Agency,    sec.    178.     "In     sec.  140,  and  note. 

2333.  Obligation  of  principal  lohen  agent  exceeds  his  authority. 

Sec.  2333.  When  an  agent  exceeds  his  authority,  his  principal  is  bound  by 
his  authorized  acts  so  far  only  as  they  can  be  plainly  separated  from  those  which 
are  unauthorized. 

2334.  For  acts  done  under  a  merely  ostensible  authority. 

Sec.  2334.  A  principal  is  bound  by  acts  of  his  agent,  under  a  merely  osten- 
sible authority,  to  those  persons  only  who  have  in  good  faith,  and  without 
ordinary  negligence,  incurred  a  liability  or  parted  with  value,  upon  the  faith 
thereof. 

395 


|§  2335-2338 


OBLtQAflO^g; 


[piv.  Ill,  Part  IV, 


See  sec.  2317,  ante,  arrl  note.  jlerson  caniiot  liold  the  principal  to  a  contract 

Nocioe  of  extent  of  agsnt's  Ailthority  will  in   excess  of   t!ie   agent's  aiitliority  to  make: 

be  iiiiputed   to  one  who  dealt  with   the  agent  Hayes  v.  Vampbdl,  03  Cal.  143, 

havin;T  reason  to  believe  hinl  such,  and  such 

52335.  When  excldsive  credit  is  giveyi  to  ajenl. 

Sec.  2335.  If  exclusive  credit  is  given  to  an  agent  by  the  person  dealing  with 
him,  his  jirincipal  is  exonerated  by  payment  or  other  satisfaction  made  by  him 
io  his  agent  in  good  faith^  before  receiving  notice  of  the  creditor's  election  to 
hold  him  responsible. 


him:    Mirfnrlanc  v.  Glnnnacopulo,  3  H.  &  N. 
800:"  Coinmissioncvs'  note. 

Thomas  v.  Moody,  57  Cal.  21.5,  furnishes  an 
illustration  of  a  principal  unknown  at  the  time 
of  the  transfactiou  being  held  responsible  for 
goods  furnished  the  agent,  the  principal  receiv- 
ing the  beneiit  thereof. 


ExGlusive  credit  to  agentj  "Story's  Agen- 
'cy,  sec.  291;  Fi^h  v.  Wood,  A  E.  D.  Smith.  :!27; 
see  I /fa  Id  v.  Kenworthy,  10  Lixch.  7.'>9;  Hyde  v. 
Pak/e,  9  Barb.  150;  Cheerer  v.  Smith,  15  Johns. 
i276;  FreiKh  v.  Price,  21  Pick.  13;  Filler  v. 
t)6mmonirealth,  31  Pa.  St.  406.  If  such 
credit  is  not  given  to  the  agent,  mere  delay  in 
calling  upon  the  principal  does  not  exonerate 

Q336.    Sights  of  person  who  deals  with  agent  without  knowledge  of  agency. 

Sec.  2336.     One  who  deals  with  an  agent  Avithout  knowing  or  having  reason 

to  believe  that  the  agent  acts  as  such  in  the  transaction,  may  set  off  against  any 

claim  of  the  principal  arising  out  of  the  same  all  claims  which  he  might  have 

Bet  off  against  the  agent  before  notice  of  the  agency. 

Setting  off  agent's  debt  against  princi-  former  to  set  off  a  bad  debt  at  the  expense  of 

pal's  claim. — "If  by  due  diligence  the  buyer  the  principal: "  Eran-iv.Walii,  71    Pa.   St.   71; 

could  have  known  in  what  character  the  seller  Jlarlbiirt  v.  Ins.   Co.,  2  Sumn.  471;  Alilkr  v. 

acted,  there  would  be  no  justice  in  allowing  the  Li^a,  35  Md.  390. 

2337.    Instrument  intended  to  bind  principal  does  hind  him. 

Sec.  2337.  An  instrument  within  the  scope  of  his  authority,  by  which  an 
agent  intends  to  bind  his  principal,  does  bind  him  if  such  intent  is  plainly  infera- 
ble from  the  instrument  itself. 


21  Id.  45;  Chamherlain  v.  Pacific  IF.  O.  Co., 
51  Cal.  103.  For  further  examples,  see 
Wharton  on  Agency,  sees.  283-295. 

Hov/  agent  should   execute    contract: 
Sec.  2343,  in  note. 


Intention  to  bind  principal. — In  the  fol- 
lowing cases  sufficient  intention  to  bind  the 
principal  has  been  held  to  have  been  manifested 
in  the  instrument:  Sayrc\.Nlc]i,ols.l  GaX.  535; 
Haskell  V.  Cornish,  13  Id.  45;  McDowdd  v. 
BearR.   Co.,  Id.  220;  Shaver  v.  Ocean  M.  Co., 

2333,    Principal's  responsihilitxj  for  agent's  negligence  or  omission. 

Sec.  2338.  Unless  i-equired  by  or  under  the  authority  of  law  to  employ 
that  particular  agent,  a  principal  is  responsible  to  third  persons  for  the  negli- 
gence of  his  agent  in  the  transaction  of  the  business  of  the  agency,  including 
•wrongful  acts  committed  by  such  agent  in  and  as  a  part  of  the  transaction 
of  such  business,  and  for  his  willful  omission  to  fulfill  the  obligations  of  the 
principal. 

Liability  of  principcd  for  agent's  negli- 
gence— It  is  an  elementary  rule  that  princi- 
pals are  responsible  to  third  persons  for  injury 
occasioned  by  the  negligent  acts  of  agents, 
and  by  their  wrongful  acts  as  part  of  their 
business  as  such:  Taylor  v.  Western  Pacific  R. 
R,  4')  CI.  323;  Kline  v.  C.  P.  R.  R.  Co.,  37 
Id.  400;  na,ik  of  California  v.  W.  U.  Tel.  Co., 
I>2  Id.  2S0;  Story  on  Agency,  9th  ed.,  sees. 
4.52^57,  and  notes,  and  see  next  section  and 
note. 

Contractor's  liability. — The  maxim  of  the 
law  i?  above  stated  respowlcit  superior;  the 
question  in  applying  it  U,  Whoso  servant  did 
■the  wrong?  Tnis  question  arises  with  greate3t 
frequency  in  the  case  of  injury  done  by  the 
■employees  of  one  to  whom  the  supervision  of 
•  the  general  work  may  have  been  given.     It 


seems  to  be  well  settled  at  this  day  that  one 
who  has  contracted  witli  a  competent  and  fit 
person,  exercising  an  in  lepcndent  employment, 
to  do  a  piece  of  work  free  from  the  control  of 
the  employer,  and  according  to  his  own  meth- 
ods, will  not  be  liable  for  the  torts  of  such  con- 
tractor, his  suljcontraetors,  or  his  servants: 
Boiwell  V.  Laird,  8  Cal.  4j9;  Jun"s  v.  .S't/i 
Francisco,  6  Id.  .528;  Da  PraH  v.  Lh-k,  38  Id. 
91;  Monjiii  v.  Bowm'tn,  22  M  >.  53S;  Kiii'i  v. 
Neio  York  Cent.  R.  R.,  03  N.  Y.  131:  Town  of 
Flerrepont  v.  Loveless,  02  Id.  211;  M-Gaiferty 
V.  Spityteii  Diujmd,  Gl  Id.  178;  Blake  v.  Ferris, 
5  KY.  43;  Coomes  v.  /lowjhfon,  102  M  is.s.  211; 
Aden  V.  Wlllard,  bl  Pa.  St.  374;  Conner s  v. 
Hennessey,  112  Mass.  93;  Robinson  v.  Webli,  11 
Biisli,  404.  The  above  principle  has  been  ap- 
plied to  negligent  performance  of  street-work 


396 


TlTLB  £K,  CflAP.  I.] 


AGENCY  IN  GENERAL. 


§§  233D-2343 


by  a  contractor,  for  which  negligence  the  city 
was  lield  not  responsible:  James  v.  San  Fran- 
cUco,  supra;  O'llale  v.  Sacramento,  4G  Cal.  212; 
Krause  v.  Sarramtnto,4S  Id.  221.  There  have 
been  made  exceptions  to  the  above  rule  releas- 
ing frcm  liability  one  who  has  turned  over  the 
entire  control  of  tlie  labor  to  be  performed  to 
a  contractor:  1.  Where  tiie  party  procuring 
the  work  to  be  done  is  under  Eome  public 
duty,  resulting  from  his  peculiar  situation  aud 
relations,  to  see  t!iat  the  work  does  not  cause 
injury:  Storrs  v.  City  of  Utica,  17  N.  Y.  104; 
2.  Wiiere  the  work  itself,  whether  well  or  ill 
done,  is  unlawful:  Creed  v.  Hartman,  29  N.Y. 
601;  Cvff  V.  iVewark  Ji.  Co.,  35  N.  J.  L.  17, 
574;  Water  Co.v.  Ware,  IG  Wall.  5G0;  Clark  v. 
Fry,  8  Ohio  St.  338;  IJola  v.  Sitthirjbouriie  etc. 
Il'y  Co..  0  IT.  &  N.  488;  3.  Where 'it  is  neces- 
sarily productive  of  injury:  Con/jreve  v.  illor- 
gav,  18  N.  Y.  84;  Congreve  v.  Smith,  Id.  79;  or, 
4.  Where  it  is  very  dangerous  in  its  essential  na- 
ture: 2  Dillon  on  5lun.  Corp. ,3d  ed.,  10.35-1057. 

Agents  required  by  law.— The  right  of 
eeleclion  is  the  basis  of  the  responsibility  of  a 
principal  for  the  acts  of  his  agent.  No  one 
can  l;e  held  responsible  as  principal  who  has 
not  the  right  to  choose  the  agent  from  whose 
acta  the  injury  flows:  Bosweli  v.  Laird,  8  Cal. 
4G9.  In  the  case  of  public  agents,  see  Stoi'y 
on  Agency,  sees.  319-322,  and  notes. 

Pilots. — In  The  China,  7  Wall.  53,  it  was 
held  that  a  law  obliging  a  master  to  take  the 
first  licensed  pilot  that  offered,  and  containing 


no  provision  exempting  the  vessel  from  liabil- 
ity, does  not  exonerate  the  vessel  from  such.', 
liability;  this  is  contrary  to  the  English  cases 
on  this  point:  See  Story  on  Agenc)',  sec.  456  a, 
and  note.  The  question  is  settled  in  this  state 
by  section  2384,  po'^t. 

V7illful  and  malicious  acts  of  asent. — 
The  following  rule  seems  to  be  fairly  deducible 
from  the  latest  decisions:  If  an  agent  commit 
a  willful,  malicious,  or  intentional  tort  while 
engaged  on  his  principal's  business,  the  latter 
is  liable  therefor;  aud  whetlier  such  act  was 
done  while  performing  the,  principal's  busincsa 
is  a  question  of  fact  for  the  jury,  not  of  law 
for  the  court:  Kline  v.  C.  P.B.  A'.,  37  Cal.  400; 
J!e)ide!soh:i  v.  Anaheim  Li'/hter  Co.,  40  Id. 
578;  Bank  of  Cal.  v.  W.  U.  Tel.  Co.,Xvl  Id.  280; 
Weed  V.  Panama  J.'.  R.  Co.,  17  N.  Y.  3G2; 
Mali  V.  Lord,  39  Id.  381;  Lee  v.  Sandi/  Hill, 
40  Id.  442;  Fra^ner  v.  Freeman,  43  Id.  556; 
Hinijins  V.  WaterrHei  T.  Co.,  46  Id.  23;  Cos- 
rjrevc  v.  Orjden,  G9  Id.  255;  Cohen  v.  Dn/  Dock 
ete.n.  n.  Co.,  09  Id.  170;  Peck  v,  N.  Y.  Ccn^ 
/.'.  /?.,  70  Id.  587;  Mott  v.  Consumer.^'  /ce  Co.^ 
73  Id.  543;  Fiihkill  Sav.  Inst.  v.  Xal,  iS%  8Q.4 
Id.   1U2. 

See  ?Wf<,  sec.  2343,  subd.  3. 

Punitive  danjissea  cannot  be  allowed;: 
against  principal  for  willful;  acts  of  agent? 
Turner  v.  Xorth  Ueach  etc.  R.  R.  Co..  3t  Cal, 
594;  Mendelsohn  v.  Anaheim  Lifjiilir  Co.,  40 
Id.  G57;  ITo'jaii  v.  Providence  di  Worcester  H, 
R.  Co.,  3  R.  I.  88. 


2239 


Principal's  responsibility  fvr  wrongs  willfalhj  committed  by  the  agent. 
bEC.  2339.     A  principal  is  responsible  for  no  other  wrongs  committed  by  his 
agent  Iban  those  mentioned  in  the  last  section,  unless  he  has  authorized  or  rati- 
fied them,  even  though  they  are  committed  while  the  agent  is  engaged  in  hia 
service. 
See  note  to  .sec.  2338. 

ARTICLE  IV. 

OBLIGATIONS  OF   AGENTS   TO   THIRD   PERSONS. 

2342 .    Wa  rra  n  iy  of  authority. 

Sec.  2342.  One  who  assumes  to  act  as  an  agent  thereby  warrants,  to  all 
who  deal  with  him  in  that  capacity,  that  he  has  the  authority  which  he  assumes. 

An  agent  act:ng  without  authority  may  Damages  for  breach  of  warrant  of  au- 
be  sued  for  tlie  breach  of  warnmty:  Noyes  v.     thoricy:  Sec.  3318,  po>t. 


Loriiiij,  55  Me.  4{iS;  Balloux.  Tcdhot.  10  Mass. 
4G1;  Jclinson  v.  Smith,  21  Com;.  C27;  Baltzen 
V.  Nicolay,  53  N.  Y.  4G7;  or  for  the  h)ss  caused 
by  the  fraud  or  deceit:  Lander  v.  ( 'astro,  43 
CaL  497;  Bar/'rity.  Tucker,  lOi'Mss.;  White 
v.  2i'ctdi.soii,  26  N.  Y.  117;  McCurdyx.  /'or/e}-<, 
21  Win.  197;  or  wlien  money  has  been  paid  to 
a  pretended  ngent  the  tort  may  be  waived  and 
the  agent  sued  for  money  had  and  received: 
Lander  v.  Castro,  43  Cal.  497. 


Net  liable  in  absence  of  fraud. — Tlie  agent 
would  not  be  personally  liable,  in  the  absence 
of  deceit,  \\  here  the  possible  absence  of  author- 
ity was  known  by  both  parties:  Story  on 
Agency,  sec.  2G5;  A'^pinwall  v.  Torra:ire,  1 
Lans.  381;  Hall  v.  Luvderdnle,  4G  N.  Y.  70; 
Tiller  v.  >pradley,  39  G.a.  35;  or  would  Iiave  ' 
been  known  by  jjlaintilT  if  he  ha<l  exercised 
reasonable  diligence:  Ken-man  v.  Sylrester,  42' 
Ind.  lOG;  McCubbin  v.  Graham,  4  Kan.  .397. 


2343.    AgrnCs  rrsponsibilily  to  ildrd  pen^oriH. 

Sec.  2343,  One  who  assumes  to  act  as  an  agent  is  responsible  to  third  per- 
sons as  a  principal  for  his  acts  in  the  course  of  his  agency,  in  any  of  the  follow- 
ing cases,  and  in  no  others: 

1.  "When,  with  his  consent,  credit  is  given  to  him  personally  in  a  transaction; 

2.  "NVheu  he  enters  into  a  written  contract  in  the  name  of  his  princiijul,  with- 
out believing,  in  good  faith,  that  he  has  authority  to  do  so;  or, 

3.  When  his  acts  are  wrongful  in  their  nature. 


397 


U  2344,  2345 


OBLIGATIONS. 


[D:v.  Ill,  PaetIV, 


Personal  reaponsibJlity  of  a^Gnt— Agent 
actini^  simply  as  such,  and  known  to  be  such, 
is  not  personally  liable:  Merrill  v.  Williams,  03 
Cal.  70. 

Subd.  1.  Credit  given  to  agent.— If,  with 
the  ai^ent's  consent,  creilit  is  given  to  him  per- 
sonally, he  is  personally  liable.  This  may  arise: 
1.  Where  the  fact  of  an  agency  is  known  to  all 
parties,  but  the  contract  is  so  drawn  or  en- 
tered into  as  that  credit  is  exclusively  given  to 
the  agent,  or  the  agent,  by  the  terms  of  the 
contract,  expressly  binds  himself  to  fulfill  it: 
Hall  V.  Cramlall,  29  Cal.  5(37;  Mills  v.  Hunt, 
20  Wend.  431;  or,  2.  Where  the  fact  of  the 
agency  is  unknown  and  the  agent  enters  iuto  a 
contract  in  his  own  name:  Babcock  v.  Ijcmaii, 
11  N.  Y.  200;  Cobb  v.  Knapp,  71  Id.  348; 
Waring  v.  Mason,  18  Wend.  42 j. 

Fori'iijn  principal, — The  fact  that  the  princi- 
pal is  a  non-resident  does  not,  as  a  matter  of 
law,  make  the  agent  personidly  liable;  it  is  a 
question  of  fact  for  the  jury:  Ocbricks  v.  Ford, 
23  How.  49;  Rorjers  v.  March,  33  Me.  IG; 
Goldsmi/h  v.  Manheim,  109  Mass,  187;  Dray 
y,  Kittoll,  1  Allen,  80. 

'  Subd.  2.  Acting  without  authority. — In 
their  note  to  this  section,  the  code  commission- 
ers say  that  the  rule  of  the  above  subdivision 
seems  to  be  established  in  New  York,  and  cite 
Bome  early  New  York  eases,  together  with  two 
later  cases  in  the  same  state,  which  respect- 
ively attack  and  virtually  overthrow  the  earlier 
cases.  The  law  in  England  is  undoubtedly  to 
the  contrary.  The  great  preponderance  of  the 
American  decisions  is  also  to  the  effect  that 
where  the  agent  signs  the  name  of  his  principal 
to  a  contract  without  authority  and  without 
apt  words  to  bind  himself,  Hall  v.  Crandall, 
29  Cal.  507,  he  is  not  directly  liable  upon  the 
contract,  but  must  be  sued  for  the  breach  of 
the  iin^ilied  warranty,  as  in  section  2342,  ante, 
or  in  tort,  for  the  false  representations:  Whar- 
ton on  Agency,  sees.  532,  533;  Story  on  Agency, 
2G4  a.  For  cases  in  which  the  agent  has  been 
held  to  have  executed  an  instrument  in  words 
sufBciently  apt  to  charge  himself,  see  ytory  on 
Agency,  sees.  275-277:  see  also  Lander  v. 
Castro,  43  Cal.  497  (1S72),  where  an  agent  is 


held  not  directly  liable  on  a  note  executed  for 
his  priucipal  without  authority:  See  also  note, 
"Not  Liable  in  Absence  of  Fraud,"  sec.  2342, 
ante. 

No  other  responsible  principal.  — In  the  case 
of  guardians,  trustees,  executors,  and  adminis- 
trators, or  persons  acting  in  a  public  official 
character,  not  on  behalf  of  the  government,  e.  r/., 
committees  of  eleemosynary  institutions,  etc., 
the  question  being,  To  whom  is  the  credit,  to 
the  understanding  of  both  parties,  really  given? 
the  persons  contracting  as  agents  are  ordinarily 
liable:  Story  on  Agency,  sees.  280,  290. 

Subd.  3.  Acts  ■wroasfally. — No  authority 
from  a  superior  furnishes  agent  with  a  defense 
for  his  own  positive  torts  or  trespasses:  Rich- 
ardson V.  Kimball,  28  Me.  403;  Ford  v.  Will- 
iams, 24  N.  Y.  359;  Pcrminfrr  v.  Kdl'i,  18  Ala. 
710;  Dnrnap  v.  Marsh,  13  111.  537;  Nussbaum 
v.  Ihillron,  03  Ga.  312;  Knifjhtv.  Luce,  116 
Mass.  580;  see  supra,  sec.  2333,  and  note. 

Ncrjligencf. — Agent  not  liable  for  negligence 
when  he  has  no  liberty  of  action:  Wharton  on 
Agency,  sec.  277,  535. 

Master  ofsloip  personally  liable:  Sec.  2382, 
post. 

How  agent  should  execute  written  con- 
tract for  principal,  see  discusssions  of  the  sub- 
ject in  notes  to  McDonou<jh  v.  Temphman,  2 
Am.  Dec.  512,  and  to  Wood  v.  Goodridge,  52 
Id.  775;  and  see,  as  to  conveyances,  ante,  sec. 
1095;  Snyre  v,  NichoU,  7  Cal.  535;  8  Id.; 
Shavr  v.  Ocean  M.  Co.,2\  Id.  45;  Ilash^.ll  v. 
Cornish,  13  Id.  45;  McDonald  v.  Bear  River 
etc.  Co.,  13  Id.  220.  Where  an  agent  in  executing 
a  written  instrument  does  not  attempt  to  bind 
his  principal,  and  in  terms  imposes  an  obliga- 
tion on  himself,  he  incurs  by  such  act  a  per- 
sonal liability  even  though  he  descriljes  himself 
as  aa  agent:  Murphy  v.  JJelmrich,  4  West  Coast 
Kep.  453. 

^Vhere  agency  appears  from  the  manner  of 
signature,  as  where  the  contract  in  the  body 
recites  that  it  is  the  obligation  of  a  corporation, 
and  is  signed  by  sundry  persons  as  trustees, 
they  are  not  personally  liable:  Blanchard  v. 
Kaull,  44  Cal.  440. 


2344.    Obligation  of  agent  to  surrender  property  to  third  person. 

Sec.  2344.  If  au  agent  receives  anything  for  the  benefit  of  his  principal,  to 
the  possession  of  which  another  person  is  entitled,  he  must,  on  demand,  sur- 
render it  to  such  person,  or  so  much  of  it  as  he  has  under  his  control  at  the 
time  of  demand,  on  being  indemnified  for  any  advance  which  he  has  made  to 
his  principal,  in  good  faith,  on  account  of  the  same;  and  is  responsible  therefor, 
if,  after  notice  from  the  owner,  he  delivers  it  to  his  principal. 
Compare  with  section  on  deposit,  sees.  1822,  1825,  1826,  ante. 

^345.    Agent  not  having  cap>acily  to  contract. 

Sec.  2345.     The  provisions  of  this  article  are  subject  to  the  provisions  of  Part 

I.,  Division  First,  of  this  code. 

"The  rights  acquired  by  third  persons 
against  both  principal  and  agent  are  stated  in 
this  title.  The  mutual  relations  of  principal 
and  agent  are  a  branch  of  service,  and  are  de- 
fined iu  tliat  part  of  the  code  referred  to  in  this 


section.     So  far  as  these  relations  create  a  mn- 
tual  trust,  they  are  regulated  by  the  title  on 
trust: "  Commissioners'  note. 
Part  1,  division  1,  sees.  25-42. 


398 


Title  IX,  Chap.  I.]  AGENCY  IN  GENERAL.  §§  2349-2355 

ARTICLE  V. 

DELEGATION    OF   AGENCY. 

2349.  Agent's  delegation  of  his  powers. 

Sec.  234:9.     An  agent,  unless  specially  forbidden  by  his  principal  to  do  so,  cau         7" 
delegate  bis  powers  to  another  person  in  any  of  the  following  cases,  and  in  no 
others : 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the  subagent  can,  law- 
fully perform; 

3.  When  it  is  the  usage  of  the  place  to  delegate  such  powers;  or, 

4.  Wlien  such  delegation  is  specially  authorized  by  the  principal. 

Subd.  1:     Commercial   Bank  v.    Norton,    1  this  and  the  above  subdivision,  the  authority  of 

Hill  (N.  Y.),  501;  PoweUw  Tuttle,ii  N.Y.  iOl;  the  principal  to   delegate   the  powers  of  the 

may  dele^'ate  mechanical  but  not  discretionary  agency  may  be  considered  as  implied:  Laustlt 

powers:  Suijre  v.  NichoU,  7   Cal.   535;  Bodiiie  v.  Lppiiic'itt,  6  Serg.  &  R.  393. 
V.  JiiN.  Co.  51  N.  Y.  117.  Subd.  4:  Story  on  Agency,  sec.  14;  Whartoa 

Sub3.  2;  Story  on  Agency,  sec.  14.  on  Agency,  sec.  38. 

Subd.  3:  See  sec.  2319,  subd.  1,  ante.     In 

2350.  Agent's  unaulhorized  employment  of  subagent. 

Sec.  2350.  If  an  agent  employs  a  subagent  without  authority,  the  former  is 
a  principal  and  the  latter  his  agent,  and  the  principal  of  the  former  has  no  con- 
nection with  the  latter. 

See  sees.  2022,  ante.  gence,  sec.  15G  et  seq.;  Wharton  on  Agency, 

Story  on  Agency,  sees.  15,  201,  and  note,  sec.  482;  but  see  Bank  of  Calif onila  v.  W.  IT. 
203,  note,  217   a,  231   a;  Wharton   on   Negli-     Tel.  Co.,  52  Cal.  280. 

2351.  Subagent  righlfulbj  appointed  represents  princ  pal. 

Sec  2351.  A  subagent,  lawfully  appointed,  represents  the  principal  in  like 
manner  with  the  original  agent;  and  the  original  agent  is  not  responsible  to 
third  ])ersons  for  the  acts  of  the  subagent. 

Ori^ia-il  agent  liable  to  prlacipal  for  Louisiana,  45  Am.  Dec.  72,  and  note;  ilitler 
negliscnce  in  choosing.  When  tlie  agent  v.  Proctor.  20  Oliio  St.  442;  Darling  v.  Stan- 
lawiiilly  a[)[ioint8  a  subagent,  he  is  liable  to     ivoo'l,  14  Allen,  504-. 

the  i)rinciial  in  respect  to  the  acts  of  such  sub-  Subagent  cannot  bs  sued  by  orijinal 
agent  only  for  c(///'rt  in  elifjcndo,  ov  for  ncgli-  aseut,  when,  liaviug  been  lawfully  appointed, 
gent  instructions,  delivered  to  such  ancillary  ho  causes  loss  by  liis  negligence,  but  must  be 
agent:  J/obbx  v.  Biiff,  43  Cal.  485;  Watson  v.  sued  by  the  principal:  Merrill  v.  Wills,  50  CaL 
Mulrhead,  57  Pa.   St.  247;  Baldwin  v.  B'k  of    108. 

ARTICLE  VI. 

termination  of  agency. 
2355.    Termination  of  agency. 

Sec  2355.  An  ageucy  is  terminated,  as  to  every  person  having  notice 
thereof,  by: 

1.  The  expiration  of  its  terra; 

2.  The  extinction  of  its  subject: 

3.  The  death  of  the  agent; 

4.  His  renunciation  of  the  agency;  or, 

5.  The  incapacity  of  the  agency  to  act  as  such. 

Notice  of  termination  of  agency  neces-  Authority  to  bind  his  principal  continnes 
Bary  to  third  persons. — Payment  of  debt  by  until  notice  of  revocation:  Clafin  v.  Lenheim, 
third  person  to  agent  after  termination  of  GGN.  Y.  3'Jl;  /'oVrtso/i  v.  C/ouf/,  47  Miss.  208; 
agent's  authority,  but  before  notice  of  the  rev-  B'anl  v.  Kirk,  1 1  N.  H.  397;  defendants  dis- 
O'jation  is  received  by  such  third  party,  re-  charge  purcliasing  agent  and  advertise  for  bids 
leases  him  from  liability  to  the  principal:  /»,?.  for  contracts;  held,  such  advertisement  not 
Co.  V.  McCain,  96  U.  S.  84;  Rice  v.  Barnard,  sufficient  notification:  Fellows  v.  Hartford  Js 
127  Mass.  241;  Braswill  v.  Am.  Life  In^.  Co.,  N.  Y.  S.  Co.,  38  Conn.  197;  and  see,  in  general, 
75  N.  C.  8;  Ulrich  v.  McCormlck,  GO  lud.  243;  Barkley  v,  Rensselaer  etc.  R.  Co.,  71  N.  Y.  205; 
Meyer  v.  ileyner,  96  111.  400.  Hatch  v.   Coddington,  95  U.  S.  48;  Rict  v. 

399 


2356 


OBLIGATIONS. 


[Div.  Ill,  T'art  IV, 


Jsham,  4  Abb.  App.  S7;  Eadie  v.  Ai^hhnufjh, 
44  Iowa,  519;  Wrighl  v.  //errlrk,  \-2S  Mass. 
249.  Notice  by  tlie  principal  of  the  contents 
of  a  written  agreement  with  his  agent,  termi- 
nating tiio  agency,  is  gootl:  Van  Diiacii  v.  Star 
M.  To.,  3GCal.  571. 

Subd.  1.  Accomplishment  of  object. — 
"Wiiere  the  object  of  the  agency  is  accomplished 
in  some  other  way  bc-forc  any  act  on  t!ie  part 
of  the  agent,  tlie  power  of  attorney  is  revokc<l: 
Benoit  v.  fnhahitaidn  of  Conica;/,  10  Allen,  528; 
an  agency  for  the  sale  of  real  estate  is  termi- 
nated, and  the  commission  becomes  due,  as  soon 
as  a  purchaser  is  found:  Short  v.  Millard,  (J8 
Id.  2'J2;  .see  also  Moore  v.  Stone,  40  Iowa,  239; 
Wit.'lrr  V.  Derliij,  5  Biss.  l."4, 

Subd.  2:  Story  on  Agency,  sec.  499;  Story 
on  Bailm..  sec.  207. 

Subd.  3.  The  death  of  an  aseut  having  a 
power  of  substitution  acts  as  a  revocation  of 
l!ic  authority  of  the  agent  substituted  by  him 
under  the  power:  Walt  v.  Watt,  2  Barb.  Ch. 
371;  Le/u^'i  V  ct  N.  Co.  v.  Mo/ir,  83  Pa.  St. 
288;  but  where  the  authority  of  the  subagent 
emanates  from  tlu  principal,  altliough  the  ap- 
pointment is  made  hy  the  agent,  it  is  not  de- 
termined by  tlie  dt-ath  of  such  intermediate 
agent:  Smi'h  v.  Wh'ife,  o  Dana,  37(5;  see  Jackson 
Jii.^.  Co.  V.  Parfc^,  0  Hoisk.  29(i. 

Subd.  4.  Renunciation  of  agency. — To 
tlie  same  effect:   (Jasp  v.  Jeiiiiiii;/s,  18  Tex.  GiJl. 

Dam'ii/fs/or  rciiouiiciinj. — Wlieu  the  agi-ncy 
is  founded  on  a  valuable  consideration,  the 
agent  renders  himself  liL.ble  for  the  <lama  (es 
his  principal  may  sustain  by  the  renunciation: 
While  V.  Smi  h,  (3  Lans.  5;  Bender  v.  Mannlmj, 


2  N.  H.  289;  OUl  v.  Middleton,  105  Mass. 
479. 

A  mere  volunteer  cannot  be  made  responsible 
for  damages  in  an  undertaking  to  execute  an 
office,  upon  the  performance  of  which  lie  does 
not  enter:  McGee  v.  Bast,  6  J.  J.  Marsh. 
430;  Beid  v,  IJiimher,  49  Ga.  307;  but  where 
tliis  gratuitous  agency  was  in  part  executed 
and  tlien  renounced,  and  the  principal  sustains 
damages  thereby,  the  authoritative  w iters  on 
agency  consider  that  the  principal  lias  .a  cans9 
of  action:  Story  on  Agency,  sec.  478;  Wliarton 
on  Agency,  sec.  107.  As  to  duty  of  gratuitouB 
employee,  sec  sec.  1973,  ante. 

Notice. — To  terminate  liis  liability  to  tha 
principal,  the  agent  should  give  notice:  Bar- 
roirs  V.  Cushnm/,  37  Mich.  481;  Story  on 
Agency,  sec.  478. 

Subd.  5.  Incapacity  to  act.  —  BanJc- 
ruptcy. — This,  it  is  said,  will  amount  to  a  rovo- 
cation  of  his  authority  to  receive  any  money 
from  the  purchaser,  or  from  other  jici-sons, 
upon  the  account  of  his  principal.  And  thia 
upon  the  groun>l  that,  by  the  act  of  bankruptcy 
the  conlldence  of  the  principal  in  the  agent  is 
destroyed:  Andenried  v.  Betteley,  8  Allen,  302; 
2  Kent's  Com.,  4th  ed.,  loct.  41,  ])p.  044,  ()45; 
but  it  seems  that  the  agent,  untler  such  cir- 
cumstances, is  not  debarred  from  doing  many 
other  acts:  Story  on  Agency,  sec.  480. 

Iiisaiiitj/. — "The  case  of  the  insanity  of  the 
agent  would  seem  to  constitute  a  natural,  nay, 
a  necessary,  revocation  of  his  autiiority;" 
Story  on  Agency,  sec.  487. 

Decr<-e  of  Innacij  is  not  extraterritonal'y 
binding:  Wharton's  Couil.  L.,  sec.  122. 


2353.    Same. 

Sec.  2350.     Unless  the  power  of  an  figent  is  couplet!  with  an  interest  in  th« 
subject  of  the  agenc}',  it  is  terminated,  as  to  everj'  person  having  notice  thereof^ 

1.  Its  revocation  by  the  principal; 

2.  His  death;  or, 

3.  His  incapacity  to  contract. 

Interest  in  subject  of  agency The  in- 
terest must  be  distinct  from  any  lien  for  com- 
pensation for  executing  tlie  power  to  make  it 
irrevocable.  It  must  l)e  in  tlie  t!ii;ig  itself: 
Barr  v.  Hchroedcr,  32  Cal.  010;  Ilnrtlei's  A/>- 
jval,  5:5  Pa.  St.  212;  Walker  v.  JJeiinisoii,  80 
1  1.  142;  but  see   .\/erri/  v.  L>/nc/i,  08  Jlc.  91. 


such  legislation  may  seem  to  be,"  i.  e.,  enact- 
ments such  as  the  above,  where  the  revocation 
does  not  take  effect  until  notice  thereof,  "and 
however  great  the  injustice  produced  in  piitic- 
ular  cases  by  the  contrary  doctrine,  undoubt- 
edly tlie  common  law  rule  is  that  death  revokes 
the  agency,  au  I  uulliiles  all  acts  tliereaftcrper- 
The  partnership  of  principal  and  agent  will  not     formed."     Similar  statutes  are  found  in  Mary- 


make  the  authority  of  the  agent  a  power 
coupled  with  an  interest:  Trarers  v.  Crane.  15 
Cal.  12;  Crt-ai/rr  v.  Link,  7  Md.  207.  Nor  will 
an  interest  in  money  derived  from  t!ie  sale  of 
tlie  subject-matter  of  the  power:  Barr  v. 
Schroedf-r,  :i-2  Cal.  010. 

Ma//  he  Irrevoralde,  though  it  is  not  a  power 
coupled  with  an  interest,  as  where  it  is  given 
as  security  for  the  pa5-m('nt  of  money,  or  is 
made  irrevocable:  IJarr  v.  Srhrni'tlir,  32  Cal. 
010;  sec  also  Mariz'^n  v.  Pinrh';  8  I  I.  r>22.  and 
Mi-rrji  V.  Lynch.  03  Me.  91;  an  1  soe  n  >te  to 
Ca^.<i  laif  V.  McKenz'/e,  39  Am.  Dec.  82;  lirmun 
V.  Pforr,  38  Cal.  550. 

lio'doQ. — See  note  to  sec.  2355,  ante.  In 
Clayton  \\  Merrill,  52  Miss  353,  which  was 
a  case  of  payment  mule  to  an  agent  after 
the  death  of  his  principal,  but  in  ig.iorance  of 
the  death,  Chalmers,  J,,  says:  "However  wise 


land:  llev.  Code  1878,  p.  388,  art.  44,  sec. 
31;  and  Louisiana:  Voorhees'  Rev.  Code,  1875, 
arts.  3032,  3033. 

Subil.  1.  The  revocation  by  tho  prin- 
cipr.l  may  be  express  or  implied.  Thus  where 
the  priucipd  disposes  of  his  interest  in  the 
su!j  ct-matter  of  the  agency,  this  by  implica- 
tiiin  operates  as  a  revocation  of  the  powir  of 
the  agent  to  sell  the  s;iiue:  Walker  v.  JJmni- 
.fon,  SO  III.  142.  Tlu!  dissolution  of  a  jiaitner- 
sliip  revo'.ces  a  power  of  attorney  given  I'y  the 
fir.n:  Schlater  v.  lVin/>enny,  75  I'a.  St.  321; 
l)Ut  a  mere  change  in  n  line,  the  same  members 
remaining,  does  not:  Bii'iinjsley  v.  Dawson,  27 
Iowa,  210. 

P.irol.  renorat.ion  is  valid  in  case  of  written 
instruneut  not  under  seal:  Sham  v.  Xiidd,  8 
Pick.  9;  Ihtforil  v.  P.nrr.  2  Johns.  Ch.  410; 
or  even  when  under  seal:  Brookshire  v.  Brook' 


400 


Title  IX,  Chap.  II.]  PARTICULAR  AGENCIES.  §§  2.3G2, 23G3 

shire,  47  Am,  Dec.  341;  see  United  S'ates  v.  38  N.   J.  L.   536,  the  rule  is  thus  positively 

Jarvis,   Davies,  287;  Henderson  v.  Ilydraidic  laid  down:    "The  after-occurring  insanity  of 

Worh-i,  9  Phil.  100.  the  princifial  operates  per  se  as  a  rcvocatiou 

Subd.  2.  Validity  of  act  of  agents  after  or  suspension  of  the  agency,  except  in  cases 
principal's  death,  and  in  the  absence  of  statu-  where  a  consideration  lias  previously  been  ad- 
tory  provision  as  to  notice  as  above,  see  note  vanced  in  the  transaction  wliich  was  the  sul)- 
to  Cassiday  v.  McKenzie,  39  Am.  Dec.  81.  ject-matter  of  the  agency,  so  that  the  power 
Before  the  code,  the  California  decisions  were  became  coupled  wit!i  an  interest."  But  al- 
with  the  majority  of  American  decisions  in  though  the  power  is  suspended  during  the 
holding  acts  performed  in  the  principal's  name  insanity  of  the  principal,  still  if,  on  liis  re- 
after  his  death,  with  or  without  notice  thereof,  covcry,  he  manifests  no  will  to  terminate  the 
void:  Travers  v.  Crane,  15  Cal.  12;  Ferris  v.  agency,  the  future  acts  of  the  agent  will  be 
Irvimj,  28  Id.  G45.  Indeed,  it  is  only  as  to  the  binding,  and  assent  to  acts  done  during  insan- 
validity  of  acts  done  in  ignorance  of  the  death,  ity  may  be  inferred  by  failure  to  express  dis- 
which  do  not  require  to  be  done  in  the  princi-  sent  when  they  come  to  his  knowledge  while 
pal's  name,  that  there  has  been  any  contro-  he  is  in  his  right  mind:  Biince  v.  Galkyihr,  5 
versy:  Kote  Cassiday  v.  McKenzie,  39  Am.  Blatchf.  431;  Dai)is  v.  Lane,  10  N.  II.  156. 
Dec.  85,  SO;  Story  on  Agency,  sec.  495.  See  also  Modey  v.  Head,  43  Vt.   633,  where 

Subd.   3.     Incapacity  of  principaL — In-  being  in  an  insane  asylum  for  mania  a  potu 

sanity. — In  MaUhiessen  etc.  Co.  v.  McJIahon,  did  not  revoke  the  agency. 


CHAPTER  II. 

PARTICULAR  AGENCIES. 

Article  I.    ArcnoTTEEiis ,.,,.. ..._2362. 

JI.     Factors 2307: 

III.     Ship-masters  ani>  Pilots 2373. 

iV.    Siups'  Makagebs ,...  ?3S^_, 

ARTICLE  I. 

AUCTIONEERS. 

2362.    Auctioneer's  authority  from  the  seller. 

Sec.  23G2.  An  auctioneer,  in  tlie  absence  of  special  autborizatioa  oi',  usage  to 
the  contrary,  has  authority  from  the  seller,  only  as  follows: 

1.  To  sell  by  public  auction  to  the  highest  bidder; 

2.  To  sell  for  cash  only,  except  such  articles  as  are  usually  sold' on  credit  at 
auction ; 

3.  To  warrant,  in  like  manner  with  other  agents  to  sell^  according  to  Bectioa 
twenty-three  hundred  and  twenty-three. 

4.  To  prescribe  reasonable  rules  and  terms  of  sale; 

5.  To  deliver  the  things  sold,  upon  payment  of  the  price; 

6.  To  collect  the  price;  and, 

7.  To  do  whatever  else  is  necessary,  or  proper  and  usual,  in  the  ordinary 
course  of  business,  for  effecting  these  purposes. 

Usage:    See  note,  sec.  2297,  ante,  "  Usage."  for  auctioneer's  statements  in  conducting  the 

Auctioneers. — Generally:     See     Story     on  sale,  but  oral  statements  of  the  auctioneer  caa- 

Ageucy,  sees.  27,  107,  lOS;  Wharton  on  Agency,  not  be  received  as  modifying  the  written  con- 

Bocs.  6oS-6.")5;   anil  a  valuable  article  ii>  8  Am.  ditions:  Ires  v.  Tri<jent,  29  Mich.  390;  Deiit  v. 

Law  Rev.  555.      See  also  Pol.  Code,  sees.  32S4  MrCratli,  3  Bush,  174;   Wright  v.  DeKh/ne,  Pet. 

et  sef|.  C.  C.   199;   Sntter/i,/d  v.  Smilh,   11    Ired.  60; 

Subd.   3.     "Warranty.— It   has  been   held  Kin;;  v.  Bardeauj]  J ohn-<.  CA\.  :^S. 

that  it  is  not  the  usual  course  of  business  for  Subd.  6.     CoUoctpri^c. — Auctioneer  may 

an  anctioncc  to  warrant:    Dodd  v.  Furloiv.  1 1  sue  for  j.urciiase  money  in  his  own  name  ns  well 

Allen,  420;   The  Monte  Altcijre,  9  Wlieat.  615,  as  in  that  of  the  principal:  Mintnrn  v.  Main,  7 

647.  N.  Y.  220;  Wharton  on  Ageucy,  sec.  647. 

Subd.  4.     Rules  of  sale. — Vendor  is  liable 

2863.  Auctioneer's  authorilrj from  the  tnddrr. 

Sec  23G3.  An  auctioneer  has  authority  from  a  bidder  at  the  auction,  as  well 
as  from  the  seller,  to  bind  both  by  a  nieuioraudum  of  the  conti'acfc  as  prescribed 
in  the  title  on  sale. 

See  pec.  1798,  ante;  and  see  generally  the  chapter  on  "  Sale  by  Auction,"  sees.  1792-^1798,  arUe, 
Civ.  Coue— 2G  40 J 


§§  2367-2374  OBLIGATIONS.  [Div.  Ill,  Part  IV, 

AETICLE  n. 

FACTORS. 

2367.  Factor,  what. 

Sec.  23G7.     A  factor  is  an  a^ent,  as  defined  by  section  twenty  hundred  and 

twenty-six. 

Brol:er— Real  estate— Commissions:  See  child,  4  West  Coast   Rep.   211   (Col.).      That 

DoiuiY.  Scanlan,  57  Ca!.  201,  where  it  is  laid  the    principal    cannot  deprive  the  real  estate 

down  aa  a  general  principle  that  t!ie  principal  broker  of  his  commission  by  refusin;^  to  com- 

vho  cmjilo3'3  a  broker  to  sell  real  estate  may  plete    the   sale,    the    broker    having    dune  all 

i!ct  negotiate  a  sale  himself,  and  t'len  will  not  that  he  was  called  upon  to  do,  see  NeiUon  v. 

)e  liable  to  the  broker  for  commissions.     "  To  Lpc,  GO  Cal.  553;  Gonzdes  v.  Broad,  57  Id.  224; 

earn  his  commission,  the  broker  must  be  an  Phelaii  v.   Gardner,  43  Id.  311;    Mlddl.cton  v. 

eflicient    agent   in,    or    the     procuring    cause  Fliidla,  25  Id.  7G;   and  see  Green  v.  Robertson, 

of,  the  contract:  McClave  v.  Paine,  40  N.  Y.  G4  11.  75,  and  cases  cited  by  counsel. 
6G3;  Willie  v.  Marine  Nat.  Bank,  CI  Id.  415."         Commissions  from  both  parties  was  allowed 

Where  the  principal  agreed  to  pay  commissions  to  the  broker  who  merely  brought  the  parties 

if  the  sale  bo  made  within  "a  short  time,"  the  together  for   the   purpose   of   contractmg  for 

broker  is  entitled  to  his  commissions  on  finding  themselves:  Green  v.  Hobsrtson,  G4  Cal.  75. 
purchaser  within  two  weeks:   i>mit/i  v.  Fair- 

2368.  Actual  authority  of  factor. 

Sec.  23G8.  In  addition  to  the  authority  of  agents  in  general,  a  factor  has 
actual  authority  from  his  princij^al,  unless  specially  restricted: 

1.  To  insure  projierty  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,  anything  intrusted  to  him  for  sale,  except  such  things 
';as  it  is  contrary  to  usage  to  sell  on  credit;  but  not  to  pledge,  mortf^age,  or 
-barter  the  same;  and, 

3.  To  delegate  his  authority  to  his  partner  or  servant,  but  not  to  any  person 
in  an  independent  employment. 

Subd.  2.  Sale  on  credit. — Where  there  is  cases.     Nor  will  the  pledge  be  good  in  sneh  a 

no  usage  to  the  conti'ary,  and  the  factor  sells  on  case,  even  for  the  amount  of  the  factor's  charges 

c«.-lit,  nevertheless  lie  will  be  luld  to  a  very  at  the  time:  Merrhanfs'  Nat.   Bank  v.    Tren- 

close  examination  of  the  credit  of  tlie  parties  fiolin,  12  Hcisk.  520;  but  see  Hayes  v.  Camp- 

to  whom  he  sells,  and  inattention  in  this  respect  bell,    55   Cal.    424.     Invalidity    of    a    factor's 

renders  him  liable  for  loss:  Foster  v.   Wcl'.er,  pledge  is  taken  as  conceded  i a  Z)o(Z.7c  v.  il/eyer, 

75  III.  4GI;  Bijrne  v.  Scliwinq,  G  B.  Mon.  103;  Gl   Id.   405,   429;  but  see  sec.  2091.  post.     In 

Jjai/H'jht  Burner  Co.  v.   Odli)),  51   N.   H.   50;  many  states,   however,    "factors'   acta"  have 

Erite-^t  v.  StoUer,  5  Dill.  43S;  Darant  v.  Fish,  been  enacted,   enabling  third  persons  to  deal 

4'^  Iowa,  559;  fcee  sef^.  2028,  ante.  with  them  as   owners,    when   intrusted   with 

Pied^s. — The  rule  in  l^ngland  and  America  goods  or  documents  of  title  to  goods  for  sale: 

is  not  ill  consonance  with  the  above  subdivis-  Jones   on   Pledges,  sec.   333  et   seq.;  see  sec. 

i<m:  Story  on  Agencj',  sec.  113,  note;  lVri:/hl  v.  2991,  2>os<,  and  uoto. 
•  Solomon,  19  Cal.  G4,  overruling  several  earlier 

2389.    Oslensible  authoriti/. 

Sec.  23G9.  A  factor  has  ostensible-authority  to  deal  with  the  property  of  his 
principal  as  his  own,  in  transactions  with  persons  not  having  notice  of  the 
actual  ownership. 

Freight. — The  factor  may  by  shipping  the     Grcenr.  Campbell,  52  Ccd.  5S0;  Flaj/eftv.  Camp- 
goods    subject    them    to    a    lien   fcr   freight,     bell,  55  Id.  421;  Dodje  v.  Meyer,  61  Id.  405. 
although  the  owner  afterwards  replevies  them: 

ARTICLE  III. 

SHTP-MASTEKS   AND    PILOTS. 

2373.  Authority  of  ship-manter  on  belialf  of  ship-owner. 

Sec.  2373.     The  master  of  a  ship  is  a  general  agent  for  its  owner  in  all 

matters  concerning  the  same. 

This  article  is  chiefly  confined  to  defining  tlie  authority  of  ship-masters.  His  duties  will  be 
found  in  sees.  2034-2044,  ante. 

2374.  Authority  to  borrow. 

Seo.  2374.  The  master  of  a  ship  has  authority  to  borrow  money  on  the  credit 
of  its  owner,  if  it  is  necessary  to  enable  him  to  complete  the  voyage,  and  if 

402 


TiTLK  IX,  Chap.  II.]  PARTICULAR  AGENCIES.  §§  2375-2378 

neither  tlie  owner  nor  his  proper  agent  for  such  matters  can  be  consulted  with- 
out injurious  delay. 

2375.  Authority  of  ship-master. 

Sec.  2375,  The  master  of  a  ship,  during  a  voyage,  is  a  general  agent  for  each 
of  the  owuers  of  the  cargo,  and  has  authority  to  do  whatever  they  might  do  for 
the  preservation  of  their  respective  interests,  but  he  cannot  sell  or  hypothecate 
the  cargo,  except  in  the  cases  mentioned  in  this  article.  [Amendment,  approved 
IlarcJi  oO,  1874;  Amendments  1873—4,  251;  tuok  effect  July  1,  1874.] 

General  average  and  jettison:  See  sees.  2148-2155;  Ntlson  v.  Belmont,  21  N.  Y.  3G. 

2376.  Power  to  make  contracts. 

Sec  237G.  The  master  of  a  ship  may  procure  all  its  necessaiy  repairs  and 
supplies,  may  engage  cargo  and  passengers  for  carriage,  and,  in  a  foreign  port, 
may  enter  into  a  charter- jwrty;  and  his  contracts  for  these  purposes  bind  the 
owner  to  the  full  amount  of  the  value  of  the  ship  and  freightage. 

Authority  at  home  port — The  master  of  a  authority  of  the  owners:  7'Ae  Fortitude,  3  Sumii. 

vessel  13  picsumcd,  cvcu  at  a  home  port,  to  have  247;  Uitilcd  Inn.  Co.  v.  Scott,  1  Jolms.  100;  /.'o--.? 

authority  to  contract  for  shiji'-s  stores,  and  the  v.  The  Active,  2  Wash.  220;   The  Guy,  9  Wall, 

owner  of  the  vessel  is  liable  for  the  value  of  57S;   The  Kalonnna,  10  Id.  204. 
the  samu,  unless  he  shows  that  tlie  master  had         Conti"acts  of  aJrefghtmsnt. — If  the  owner 

Eot  such  power:  Crawford  v.  lloherts,  50  Cal.  charters  to  another  the  hold  of  his  vessel,  hut 

6.'i5.  appoints  her  master  and  sails  her  at  his  own 

Validity  of  lien  for  supplies. — The  sup-  exi)ense,  he  will  be  liable  on  contracts  of 
plies  must  appear  to  be  reasonable,  or  the  money  affreightiuent  made  by  the  master  with  ship- 
advanced  for  them  to  have  been  wanting,  and  pers  who  have  no  notice  of  the  charter-party: 
there  must  be  nothing  to  repel  the  ordinary  Oakland  C.  M.  Co.  v.  Jennbujn,  4G  Cal.  175; 
presumption  that  the  master  acted  under  the  and  see  Tomlinson  v.  Ilolt,  40  Cal.  310, 

2377.  Poioer  of  ship-master  to  hypothecate. 

Sec.  2;i77.  The  master  of  a  ship  may  h^^oothecate  the  ship,  freightage,  and 
cargo,  and  sell  part  of  the  cargo  in  the  cases  prescribed  by  the  chapters  ou 
bottomry  and  respondentia,  and  in  no  others,  except  that  the  master  may  also 
sell  the  cargo  or  any  part  of  it  (short  of  the  port  of  destination,  if  found  to  be 
of  such  perishable  nature,  or  in  such  damaged  condition,  that  if  left  on  board 
or  reshipped  it  would  be  entirely  lost,  or  would  seriously  endanger  the  interests 
of  its  owners.  [Amendment,  approved  March  30, 1874;  ^menJ/neu/s  1873-4,  252; 
tool-  rffcclJuly  1,1874.] 

See  sec.  2320,  ante,  and  note,  and  sec  3017  et  seq.,  JW5<,  and  notes. 

2373.    Master's  power  to  sell  ship. 

Sec.  2378.     When  a  ship,  whether  foreign  or  domestic,  is  seriously  injured, 

or  the  voyage  is  otherwise  broken  up,  beyond  the  possibility  of  pursuing  it,  the 

master,  in  case  of  necessity,  may  sell  the  ship  without  instructions  from  the 

owners,  unless  by  the  earliest  use  of  ordinary  means  of  communication  he  can 

inform  the  owuei's,  and  await  their  instructions. 

What  degree  of  neoeasity  required A  condition  and   .idvising  the  sale,  is  essential, 

master    may  sell  "when  a  eoasiilerate  owner  thoug'i    not   in    itself  conclusive:    The    llenrij, 

would  liav  !  done  so  under  Ike  eircuinstances:"  li'atehf.  &,  II.  Adm.  4tJ5,  400.  472;  The  T'tlton,  5 

Iiobi.i.<OJi  V.  Com.  Inx.  Co.,  3  Suiim.  220;    IVinn  Mason,  405,  4S0,  400;   The  Ainrlle,  8  Wall.  IS; 

\.  ColnmhUta  Iii-o.  Co.,   12  Pick.  27J;  lialiw  Gordony.  Mas^.  F.ii:  M.Iiis.Co.,'lY^'\c\s..2¥d;  a.uA 

Fran/dill  In-:  Co.,  9  Id.  400.     Necessity  and  sec  Dcsty'.s  Ship.  &  Ad.,  sec.  121. 

good  faitli  must  concur,  and  hu  may  sell  the  Mean3  of  commuuioatioii.— In  general,  ifc 

■wrecked  vessel  wlien  in  the  exercise  of  his  own  may  be  said  he  cannot  sell  at  the  home  port, 

best  discretion,  and  in  tlie  opinion  of  competent  the  criterion  of  his  authority  being  the  distance 

person-^,  such  perils  exist,  or  are  likely  to  arise,  of  the  owuers  or  insurers  from  the  place  of  dis- 

from  which  the  vessel  cannot  be  rescued.     A  aster:  Pierce  v.  Ocean  In>i.  Co.,  20  Am.  Dec. 

precedent   examination  of  the  vessel  by  com-  507,  and  note;  Scull  v.  Briddlc,  2  Wash.  150; 

pcteut  surveyors,  and  their  report,  stating  her  The  SaraJi  Ann,  13  Pet.  3S7. 

403 


|§  2379-2385  OBLIGATIONS.  [Div.  IH,  Past  IV» 

2379.  Master's  power  to  sell  cargo. 

Sec.  2379.  The  roaster  of  a  ship  may  sell  the  cargo,  if  the  voyage  is  broten 
up  beyond  the  possibility  of  pursuing  it,  and  no  other  ship  can  be  obtained  to 
carry  it  to  its  destination,  and  the  sale  is  otherwise  absolutely  necessary. 

Must  notify  owner  if  possible,  as  in  the  24;  Post  v.  Jones,  19  How.  150;  Dodqev.  Union 
case  of  stranding;  ami  where  he  might  easily  Im.  Co.,  17  Mass.  478;  Arthur  v.  The  Cassius, 
have  sought  instructions  from  the  owner  by     2  Story,  81. 

telegraph  or  special  message,  but  neglected  to  Tiie  burden  of  proving  necessity  is  on  tbo 
do  so,  the  sale  would  be  an  unlawful  con-  purchaser  claiming  title  under  the  sale,  in  both 
veyance:  Pi/:e  v.  Batch,  HO  Mc.  302;  Bryant  v.  thisand  thoabovesectloniyoyv.  ^/^e»,2\V(>odb. 
Com.  I>i.f.  Co.,  13  Pick.  544;  The  Joshua  Birker,  &  M.  303;  Oreeli/  v.  Smith,  3'ld.  23U;  The  Forti- 
Abb.  Adm.  219;  Amon/v,  McGregor,  15  Jolms.     tade,  3  Sumu.  23G;  compare /josi,  sec.  2707. 

2380.  AidJiorilij  to  ransom  ship. 

Sec.  2380.     The  master  of  a  ship,  in  case  of  its  capture,  may  engage  to  pay  a 

ransom  for  it,  in  money  or  in  part  of  the  cargo,  and  his  engagement  will  bind 

the  ship,  freightage,  and  cargo. 

Ransom  as  a  general  average.— The  ran-  Wells  v.  Oraij,  10  Mass.  42;  Sansom  v.  B  ill,  4 
8om,  paid  in  good  faith  for  tiie  benefit  of  all  Dall.  459;  Douglas  v.  Moodij,  9  Mass.  548; 
concerned,    is   a   subject  of   general   average:     Maissonaire  v.  Keating,  2  Gall.  338. 

2381.  Abandonvienl  terminates  master's  power. 

Sec  2381.  The  power  of  the  master  of  a  ship  to  bind  its  owner,  or  the 
owners  of  the  cargo,  ceases  upon  the  abandonment  of  the  ship  and  freightage  to 
insurers. 

After  abandonment,  the  master  becomes  Pierce  v.  Ocean  Ins.  Co.,  29  Am.  Dec.  507;  and 
the  a3ent  of  the  underwriters  by  operation  see  Ward  v.  Peck,  13  How.  2G7;  The  Jlenn/, 
of  law,  and  they  are  responsible  for  his  acts:  2  Blatchf,  &  H.  Adm.  ioo;  and  so  sec.  2726, 
Gen.   Jnt.  Ins.  Co.  v.  liugjles,   12  Wheat.  408;    post. 

2332,    Personal  liability  for  contracts  concerning  the  ship. 

Sec  2382.  Unless  otherwise  expressly  agreed,  or  unless  the  contracting 
parties  give  exclusive  credit  to  the  owner,  the  master  of  a  ship  is  personally 
liable  upon  his  contracts  relative  thereto,  even  when  the  owner  is  also  liable. 

Whoever  supplies  a  ship  with  neoes-  rightfully  in  charge  or  not:  The  Lehi'jhw  Knojc, 
saries  has  thus  a  tri[)le  security — the  master,  12  Mo.  508;  see  also  James  v.  Blxby,  11  Mass. 
tlie  owner,  and  the  ship:  Zncharie  v.  I\irk,  14     34,  30,  37. 

La.   Ann.  433;  Phitli/ts  v.  Tn/iper,  2  Pa.  St.         Personal  liability  of  agent:  See  ante,  sec. 
323;  and  ho  is  not  obliged  to  iiKpiire  whether    2343. 
the   person  in  charge  as   master   or  agent  is 

2383.  Liahilily  for  acts  of  persons  employed  upon  the  ship. 

Sec  2383.  The  master  of  a  ship  is  liable  to  third  persons  for  the  acts  or 
negligence  of  j)ersons  employed  in  its  navigation,  whether  appointed  by  him  or 
not,  to  the  same  extent  as  the  owner  of  the  ship. 

Pilot. — The  master  of  a  steandjoat  was  held  owners  for  the  willful  torts  and  trespa'^ses  of 

liable  for  ihc  negligence  of  a  i)ilot,  by  which  a  the  persons  employed  by  them,  which  act-)  were 

collision  occurred,  although  tlie  pilot  was  ap-  not  ordered  by  them  nor  within  the  scope  of 

pointed  i)y  the  owner:  l)>iiiison  v.  Seymour,  d  the  employees' duties,  sec  Story  on  Agency,  sec. 

Wend.  8,  15.  31S,  and  n  )te,  and  sec.  4')3;  and  as  to  agency  in 

As    to    the    non-liability  of  masters  or  general,  Wharton  on  Agency,  sec.  479. 

2384.  RespnnsibiHty  for  negligence  of  pilot. 

Sec  2384.  The  owner  or  master  of  a  ship  is  not  responsible  for  the  negli- 
gence of  a  pilot  whom  ho  is  bound  by  law  to  employ;  but  if  he  is  allowed  an 
ojition  between  pilots,  some  of  whom  are  compsteut,  or  is  required  only  to  pay 
compensation  to  a  pilot,  whether  ha  employs  him  or  not,  he  is  so  responsible 
to  third  persons. 

Sec  sec.  2338,  ante.,  and  note,  "Pilots." 

2385.  Obligaliona  of  sliip-oivaers  to  owwr  of  cargo. 

Sec  2385.  The  owner  of  a  ship  is  bound  to  pay  to  the  owner  of  her  cargo 
the  market  value  at  the  time  of  arrival  of  the  ship  at  the  port  of  her  destination. 

404 


Title  X,  Chap.  I.] 


PARTNERSHIP  IX  GEXERAL. 


§§  23S8-2395 


of  that  portion  of  ber  cargo  wliicli  has  been  sold  to  enable  the  master  to  pay  the 
necessarj'  repairs  and  supplies  of  the  ship.  [New  section,  approved  Jilarcli  30, 
1874;  Amendments  1873-4,  252;  took  eject  Julij  1,  1874  ] 

Repairs,   ■when  not  subject  of   general    not  the  subject  of  general  average:  Ttoxsty.Tht 
average. — Repairs  required  fruni  ordinary  de-     Aclirc,  "  _.       .      . 

cay,  and  furnished  at  an  intermediate  port,  are     Co.,  1  Id. 


Wash. 
400. 


JJurliii  V.  P/iceuix  his. 


ARTICLE  IV. 

ship's  managers. 
2383.    What  poivers  manager  has. 

Sec.  2388.  A  ship's  manager  has  power  to  make  contracts  requisite  for  the 
performance  of  his  duties  as  such;  to  enter  into  charter-par ues,  or  make  con- 
tracts for  carriage;  and  to  settle  for  feightage  and  adjust  averages. 

See  sees.  2070-2072. 

2389.    What  powers  he  has  not. 

Sec.  2389.  "Without  sjoecial  authority,  a  ship's  manager  cannot  borrow  money 
or  give  up  the  lien  for  freightage,  or  purchase  a  cargo,  or  bind  the  owners  of 
the  ship  to  an  insurance. 


TITLE  X. 

PARTNEESHIP. 

Chapter  I.  Partnership  in  General ^ 2305 

II.  General  Partnership , 2424 

III.  Special  Partnership 2477 

IV.  IMiNiNQ  Partnership 2511 


CHAPTER  I. 
PARTNERSHIP  IX  GEXERAL. 

Article    I.  What  Constitutes  a  Partnership 2.395 

II.  Partnkuship  Property 2401 

III.  MuTi7AL  Obligations  of  Partners 2410 

IV.  Renunciation  OF  Paktneusiixp , ,   2417 

ARTICLE  I. 

WHAT   constitutes   A   PARTNERSHIP. 

2335.    Partnership,  what. 

Sec.  2395.  Partnership  is  the  association  of  two  or  more  persons  for  the 
purpose  of  carrying  on  business  together,  and  dividing  its  profits  between  them. 

D-v:d'ng  th3  profits. — Partiei|j:itiitu  in  the  tlirouj^h  the  ne'^^ligeuee  of  tiie  owner  permitted 
proiics  (;f  a  Im-iiicss  f'urni.-shos  sLroiii^  prcsu  np-  to  hoi  I  himself  o;it  as  sneli,  is  not  a  iiartner, 
live  eviilenee  of  a  p  irLnership  in  it.  A  share  either  as  to  tlie  owner  or  as  to  third  pers<ni3. 
of  pmlils  paid  to  agents  to  seen  re  exertion  is  Tiie  <]ilHeulty  lias  heen  found  in  establishing 
not  such  a  partieipation  in  prolits  as  to  make  the  above  faets,  an<l  in  many  of  the  eases  the 
the  agent  li.iblo  as  partnef,  and  in  sueh  cases  distinction  is  drawn  and  tiic  discriminations 
the  money  bo  paid  is  considered  as  a  sum  etpial  made  use  of  are  very  sui)tile;  lldiina  v.  Flint, 
to  or  measuied   by  the  profits,   rather  than  a     14   Cal.  73;  Burton    v.  O'lOilf/iecd,  6'.)   111.  2;}7; 


Eiiare  m  the  prolits  themselves:  J'arLcr  v. 
Citiifdtl,  ,"7  Conn.  2r>0.  This  question  has 
fuinishcd  the  subject  of  much  litigation,  but 
the  deci.siuiis  concur  in  holding  that  a  P'utj' 
who,  without  any  interest  in  the  jironerty,  is 
by  a;.;reeni.Mit  to  receive  as  compensation  for 
liis  services,  and  only  as  compensation  therefor, 
»   eertnin    proportion    of    the    profits,    and    is 


('oiiviionircalth  v.  /i/'iiinit,  118  Mass.  44.S;  Oood 
V.  MrCartiii-i/,  10  Tex.  10.'!;  Jii<  htinlson  v. 
Ihirilt,  7(>  N.  V.  o.'):  Snnkcy  v.  ('nluiiihii.i  Iron 
Wor/:^,  41  (Ja.  2JS;  I'oorAf.t  v.  Jovs,  29  N.  J. 
L.  270;  Mn.toii  v.  llach'U,  4  Nev.  420;  A/hn-lon 
V.  Ti/!oii,  4^  N.  II.  4.12;  ChrUlan  v.  Crorker, 
25  Aik.  ;-!27;  UamHe  v.  Siuf",  41)  Ala.  14;  /Joi/re. 
liru'l  /,  01    Ind.  4.12;  J/oldfii  v.  Fn-iich,   63 


ueitlier  held  out  to  the  world  as  a  partner,  nor    Me.  241 ;  see  note  p.  20,  Liud.  ou  Part.,  Am.  ed.; 

405 


§1  239C-2403 


OBLIGATIONS. 


[Div.  in,  Taet  IV, 


L'^omu  V.  Mnr^hall,  30  Am.  Deo.  500,  and  note; 
Brudfy  V.  Whiti',  4.3  Am.  Deo.  4.3");  aa.l  see 
M'cv/.ier  V.  Wu'/ner,  50  Cal.  76.  The  riglit  to 
jointly  share  jirotits  "as  profits"  mikes  the 
par.'^ics  liable  as  copartiiera:  Cluimplon  v.  Bo--it- 
\rirk,  'M  Am.  Dec.  .376,  anil  note;  Denvy  v. 
C'hW,  G  Met.  92:  Story  ou  Part.,  sees.  3(>-38, 
anil  see  the  following  cases,  where  pai*tici[)atioQ 
iu  the-  profits  has  not  constituted  a  partnership: 
U  hff/f'r  V.  Farmt-r,  38  Cal.  203;  Uobinxnn  v. 
llaOr-',  40  Id.  474;  Quackeiihiinh  v.  Sciict/pr,  54 
Id.  439:  and  Bar/.er  v.  Cuza'U,  30  Id.  92,  a 
union  of  services  and  interest  in  property. 

Sec  section  2445,  and  note,  where  the  above 
question  as  to  divisiou  of  profits  evidencing 
pirtncrship  is  settled. 

Voluntary  associations  for  mutual  relief 
in  sickness  or  distress,  by  funis  raised  by  in.tia- 
tioii  fees,  fines,  dues,  etc.,  are  pai  tnersiiip-s 
and  may  be  dissolved  by  a  court  of  eipilty  if 
they  improperly  excluile  a  mem'ier:  Gorman  v. 


HUl-grx.i,  54  Id.  4G3;  Clark  v.  Gr alley,  49  Id. 
105. 

Abortive  corporaticn. — A  partnership  or 
a  joint-stock  coini>aiiy  is  not  nece.ssariiy  the 
result  of  an  aliortive  attempt  to  oru'anize  a  cor- 
porarion:  Blanrkarl  v.  Ka;ill,  44  Cal.  440. 

Partnsrship  as  to  real  property. — A  part- 
nersliip  may  exist  as  to  the  purchase  and  sale 
of  real  property,  but  such  a  partnership  can 
only  exist  w'lere  the  contract  is  reduced  to 
writin.,':  Gray  v.  Pa'm^r,  9  Cal.  GIG. 

Interest  in  the  capital — It  is  not  neces- 
sary that  the  capital  sliould  be  jointly  owned: 
Vas-iar  v.  Cimp,  14  Barb.  .341;  Clinmpion  v. 
Boftwick.  31  Am.  Dec.  376;  Dale  v.  Ilamilldn, 
5  JTare,  393;  Perry  v.  Bitt,  14  Oa.  G99. 

Partnership  must  be  proved  like  any 
other  fact,  aud  ca;iuot  be  establis'ie  I  by  gen- 
eral reputation:  Undson  v.  Simon,  G  Cal.  4.".3; 
Turner  v.  ^f-Ilhatnj,  8  Id.  575;  Sinclair  v. 
Wood,  3  Id.  93.     Books  and  receipts  mav  be 


A'«>.sr-//,  14  Cal.  531.     See  an  article  upon  these     aflmicted  to  prove  partnership  if  t!iey  aCtord 


associ;itiiins    in    17   Cent.  L.  J.  342;   see  also 
Hiisehl  <^n  the  Law  of  Fraternities,  sees.  .3—3. 

Community  of  interest  in  the  proflt3 
and  losses  constitutes  a  valid  partnership: 
Smith    V.    Moynihau,    44    CaL    53;  Harr'is  v. 


any  evidence  thereof:  Loae  Star  Co.  v.  Wist 
Pt.  Co.,  5  Id.  447;  Hale  v.  Braiuian,  23  Id. 
511. 

Dividing     profits    implies    division    of 
losses:   Sec.  24L»4,  post. 


2396.  Ship-oicners. 

Slc.  239G.  Part  owners  of  a  ship  do  not,  by  simply  using  it  in  a  joint  enter- 
prise, become  partners  as  to  the  ship. 

Partnership   for    the   voyage   and   ven-  venture:  J/a-^/ v.  Z»6  iro'/,  3  Woodb.  &  M.  193; 

tors — If  part  owners,  not  jiartuers,  equip  ;md  Ilintoii  v.  Law,  10  Mo.  701;  G  irdii^r  v    Cl-re- 

fit  out  a  vessel  f.-r  a  common  venture,  they  land,  9  Pick.  331;  Buljinrh  v.  Winchenb'vk,  3 

tlierjeby  form  a  partnership  for  the  voyage  and  Allen,  161;  Philips  v.  LeAley,  1  Wash.  229. 

2397.  FuYmalinn  of  parlnfrnhip. 

Sec.  2397.  A  parcuersLip  can  be  formed  only  by  the  consent  of  all  the  par- 
ties thereto,  and  therefore  no  new  partner  can  be  admitted  into  a  partnership 
without  the  consent  of  eveiy  existing  member  thereof. 

Consent  necessary  to  a  partnership.— No        Mining  partnership.— If  one  partner  and 

part  owner  iu  a  miuing  claim  convey-  Ids  inter- 
est to  a  stranger,  tiie  latter  becomes  thereby  a 
partner  with  the  other  owners,  r.nd  entitleil  to 
all  the  rights  of  his  grantor:  2^'isbely.  2^ash,  52 
Cal.  540;  also  sec.  2516,  post. 


one  can  be  made  a  partner  by  inberiuince  or 
ot'.ierwise  against  his  will:  Jan/uin  v.  B'iisjn, 
11  How.  Pr.  3S5;  ilarqaandv.  JS'.  Y.  ilj'j.  Co., 
17  .Jo'ms.  525;  and  see  llarjitr  v.  Lampi/n/,  33 
Cal.  G41. 


ARTICLE  II. 

P.VRTXEESHIP   PROPERTT. 

24C1.    Partnership  properfy,  what. 

Sf-c.  2401.  The  property  of  a  partner.ship  consists  of  all  that  is  contributed 
to  the  common  stock  at  the  formation  of  the  partnership,  and  all  that  is  subse- 
quently acquired  thereby. 

2402.  PartiiPr'ii  interest  in  partnership  property. 

Sec.  2402.  The  interest  of  each  member  of  a  partnership  extends  to  every 
portion  of  its  property. 

Partnars  are  jomt  tenants,  in  a  qualified    therein  ;-er  my  et  p-r  tout:  2  Bla.  Com.   182; 
Bens.-,  /.  e.,  witliouL  the  l>eiierit  of  survivorship.     Story  on  Part.,  sec.  16;  Lind.  on  Part.  GGO. 
of  t'lc  partnership  property,  having  an  interest 

2403.  Partner's  share  in  profits  and  losspsf. 

Sec.  2403.  In  the  absence  of  any  agreement  on  the  subject,  the  shares  of 
partners  in  the  profit  or  loss  of  the  business  are  equal,  and  the  share  of  each  in 
the  partnership  property  is  the  value  of  his  original  contribution,  increased  or 
ftiminished  by  his  share  of  profit  or  loss. 

406 


Title  X,  Chap,  I.] 


PAETXEESHIP  IN  GENERAL. 


§§  240i-2406 


Equality  of  shares  in  proSt  and  loss. — The 
commissioiiers  say  that  the  point  settled  by 
the  above  section  has  been  doubtful,  "but  the 
rule  stated  iu  the  text  seems  just:  "  See  Shorb 
V.  Beaiflrif,  5G  Cal.  4."^0.  The  mere  fact  that 
partners  have  i)ut  uner|ual  amounts  of  capital 
into  the  common  stock,  or  that  one  has  put  in 
all  the  capital  and  tlie  others  only  their  skill 
and  iu  lustry,  will  make  uo  difference  in  the 
rule:  Gn.j'js'y.  <  lark,  '2.3  Id.  4:27. 

MJiiiis  partnerships. — Here  each  member 
shares  in  the  proiit  aud  loss  proportionably  to 
the  interest  he  liol  Is:  Sec.  2513,  post. 

Unpaid  advances  and  original  capital — 


Where  there  is  no  agreement  between  the  part- 
ner, they  are  to  contribute  equally  to  every 
loss,  whether  the  loss  be  unpaid  advances,  sea 
Lind.  on  Part.  SOO,  or  a  loss  of  the  original 
capita]  broughtiu;  and  this  is  the  rule,  whether 
the  partners  conrrihuted  to  the  capital  in  equal 
shares  or  not:  Taj't  v.  Schwamh,  SO  111.  259; 
Lind.  on  Part.  8J7;  Molt-y  Y.Br'ui",  120  Masa. 
324;  Jon-'S  v.  Bailer,  23  Hun,  3j7;  see  also 
Carlisle  v.  Tfuhrciok,  bl  Ind.  520;  Saa-ri/  v. 
Tunr.iton,  4  Brad.  App.  5o.  But  see  this  rule 
quaiiSed  ia  Fla/j-j  y.  .'itowe.  So  LI.  1G4:  Ererly 
V.  Durhorrm,  8  Phila.  93;  Cameron  v.  Walsoa, 
10  PLich.  Eq.  G4. 


24C4.  Wlicn  dividon  of  losses  implied. 

,    Sec.  2401.     An  agreement  to  divide  the  pi'oflts  of  a  business  implies  an  a^ee- 

ment  for  a  corresponding  division  of  its  losses,  unless  it  is  otherwise  expres^ly^ 

stipulated. 

"This  settles  what  has  been  heretofore  a  doubtful  proposition:"  Commissioners'  note. 

2405.    Partner  maxj  require  application  of  partnership  property  to  payment  of 

dfbts. 

Sec.  2405.  Each  member  of  a  partnership  may  require  its  property  to  ba 
applied  to  the  discharge  of  its  debts, and  has  alien  upon  the  shares  of  the  other 
partners  for  this  jjui-pose,  and  for  the  payment  of  the  general  balance,  if  any, 
due  to  him. 


Priority  of  partnership  debts.  — The  debts 
of  a  partuvVsliip  luusc  be  discliargcd  from  the 
joiiit  pr.  perty  before  any  portion  of  it  can  be 
applied  to  the  individual  debts  of  the  partners: 
C'/'/ct--e  V.  .S  (-»-/,  9  Cal.  04;  Burjife  v.  Baiin,  22 
Id.  104;  Jonex  v.  Par>>ons,  25  Id.  100;  and  a 
prior  levy  of  execution  by  an  individual  cred- 
itor on  the  tinn  property  gives  him  no  right  of 
proiiercy  against  the  lirm  creditors  who  have 
not  y.t  obtamed  judgment:  Conroy  v.  Woods, 
13  Id.  G2j. 

partuershig  of  two  or  more  firms. — In 
thi.i  ca=e  tlie  creditors  of  one  of  the  firms  are  en- 
tit'ed  to  a  preference  in  tlie  payment  of  their 
debts,  over  the  cretlitoi-s  of  the  wliole  pai-tner- 
ship,  out  of  the  money,  the  proceeds  of  the 
property  of  tliat  firm:  Bullock  v.  IJ aboard,  23 
Cal.  400. 

i  urohaser  of  partner's  interest — A  mort- 
gagee cf  .1,  partner's  individual  interest  in  part- 
ne:oiii])  property  hoPs  subject  to  the  linn 
ci-e:iitors'  rights  \o  subject  the  property  to  the 
payment  <'f  tlie  firm  debts,  and  is  the  duty  of 
the  .sheriff  to  enforce  this  right:  Sheey  v.  Graves, 

2406.     TI7irr^  property  is  partnership  property  by  presximpiion. 

Sec.  240G.     Property,  •whether  real  or  personal,  acquired  with  partnership, 
funds,  is  presumed  to  be  partnership  property. 


5S  CaL  449.  The  same  principle  applies  to 
purchasers  at  execution  sriles.  \Vhen  tlie  sher- 
lif  sells  under  exeeut.on  for  an  individual  debt 
all  the  interest  of  ouj  partner  in  the  tirin,  as 
he  may,  Clark  v.  Cm-ltinj,  52  Id.  G17,  the 
purchiiser  under  the  execution  becomes  a 
tenant  in  coinmun  with  the  other  pariners, 
taking  such  interest  subject  to  the  lie::s  of  tha 
other  partners:  Bo'-i.u>o,i  v.  Tecis,  S3  Cal.  Oil; 
Gil  more  v.  Xorth  Arnericun  Land  Co.,  Pet 
4G0;  .Valter  of  Smith,  IG  Johns.  102,  ICC, 
and  the  reporter's  note;  Al  en  v.  WtlLi,  22 
Pick.  450;  J/a.'^kins  v.  Everett,  4  Sneed,  531^ 
Jleii  ic]k  v.  Wh'.lio  V,  .52  N.  Y.  1-18;  iri'7a/7M 
V.  (^«^c,  49  Miss.777;  Lind.  on  Part.  690;  Story 
on  Part.,  sees.  2G2,  2G3,  aud  nutes. 

Posses-!ou  by  in!rr/,a.-ier. — And  such  purchaser 
has  no  riglit  to  the  exclusive  possession  of  the 
proiierty:  ll'i\<on  v.  Siob(i/-/i,  59  Ala.4SS:  da/jeit 
V.  KUbourDe,  1  Black,  346;  and  if  ho  excludes 
the  other  partners  from  possession,  tliey  may 
have  an  ac-ion  against  him:  Pwje  v.  Carpenter, 
10  X.  U.  77. 


Parol  cviden:e  to  [rove  that  hind  standing 
in  nam;;  of  one  of  the  partners  is  in  fact  part- 
lier.=?hipp:o:ierty  is  a  Imissible:  Ziokv.  Cl>'7n''7}s, 
41  Iow:i,  95:  Shricooil  v.  St.  Paul  etr.  /?.  Co., 
21  Minn.  127:  Bird  v.  Morrison,  12  Wis.  13S; 
Fiir.hilil  V.  Fairchihl,  04  N.  Y.  471;  see  also 
Liltli'  V.  S:ied<'  or,  52A1.1. 1G7;  Pretcn/  v.  Mont- 
gomery, 28  Ark.  2.')G:  Pall  Waxr  W'ltalin'i  Co.  v. 
B<jrden,  li)  Cus!i.  458;  C  lUns  v.  Dicker,  70 
Me.  23.  For  a  dilT  rent  rule  in  Pennsylvania, 
Bee  ].ef\>rr«s  Ap,  fill.  GO  Pa.  St  122;  but  see 
Blark's  Aj,;,e  I,  y.)  Id.  201. 

Improvements  on  land  owned  by  one  part- 
ner, or  by  several  partuera  as  tenants  iu  com- 


mon, made  with  partnership  funds,  are  part- 
nei-shi[)  property :  Lane  v.  Tyler,  40  Me.  242i 
Kendill  v.  Rkfer,  35  Barb.  100;  1  Uncock  v. 
Phtlf;s,  44  X.  Y.  97;  Deveny  v.  Mahoney,  3  N. 
J.  E  J.  247. 

Th3  surviving  partner  of  a  firm  o\rnin§ 
real  estate  is  more  tlian  a  mere  t-enant  in  com- 
mon with  the  representatives  of  the  estate  ol 
the  deceased  partner.  He  is  trustee  for  the 
pur)>o?e  of  v.imlin^' up  the  atiairs  of  tlie  firm: 
Smith  V.   Walker.  38  Cal.  3S5. 

In  equity  real  estate  is  treated  as  mer* 
personalty,  so  far  as  the  pa^nnent  of  partner- 
ship debts  ami  the  adjustment  of  partnership 


407 


|§  2410-2412 


OBLIGATIOXS. 


[Div.  Ill,  Part  IV, 


rights  are  concerned:  Diipny  v.  Leavenworth,  freed    from    equitable   claims  of  others,    upon 

n  C:d.  '2C>X  grounds   of    policy:    JJnjuii/    v.     /.eafi-nicorlh, 

A  bona  fide  purcli-'ser  for  a  valuable  con-  )7Cal.  2()3;  seeLind.  ou  I'art.,  Evvell's uotes,  p. 

Bideratiou,    witliout  notice  of  tlie   partnership  Go'2,  ou  this  subject  generally, 
character  of  the  property,  will  take  the  title 

ARTICLE  III. 

MUTUAL    OBLiaATlON    OF    PAllTNERS. 

2-110.    Parlners  (rusfeeafor  each  other. 

Sec.  2410.  The  relations  of  partners  are  confidential.  They  are  trastces  for 
each  other  within  the  meaning  of  Chapter  I.  of  the  title  on  trusts,  and  their 
oblig-ations  as  such  trustees  are  defined  by  that  chapter, 

2411.    Good  faith  to  he  observed  between  them. 

S.'rc.  2411.  In  all  proceedings  connected  with  the  formation,  conduct,  disso- 
lution, and  liquidation  of  a  partnership,  every  partner  is  bound  to  act  in  the 
highest  good  faith  toward  his  copartners.  He  ma}'  not  obtain  any  advantage 
over  them  in  the  partnership  affairs  by  the  slightest  misrepi'esentation,  con- 
cealment, threat,  or  adverse  i:)ressure  of  any  kind. 

No  advanta.!?e  obtainable.— A  partner  is     Whiteside  v.  Lnferty.  3  Humph.  150;  Freeh  v. 


bound  to  sliare  with  liis  copartners  any  bcnetit 
which  lie  may  have  been  able  to  obtain  from 
other  [icoi'jle,  and  in  which  the  firm  is  iu  honor 
and  conscience  entitled  to  participate:  Warren 
V.  Srhaniwaht,  62  Cal.  50;  Todd\.  h'afert>/,'Sd 
N.  J.  E(|.  254;  Gray  v.  Portland  Bank,  3  ^lass. 
3G4;  Lockwood  v.  Beclcwith,  6  Mich.  108; 
Anderson  v.  Whitlock,  2  Bush,  398;  Lowry  v. 
Coob,  y  La.  Ann.  502;  Eason  v.  Cherry,  6 
Jones  E(|.  201;  Lane  v.  Carpenter,  3D  Ind. 
284;  Coarsen^s  Appeal, "iQ'^Ci.  8t.  220;  Solomon 
V.  So'omnn,  2  Ga.  18;  American  Bmik  Xote  Co. 
".  L\l.-<on,  1  Lans.  388;  S.  C,  50  Barb.  84; 
Mahou  V.  JlfcCleman,  10  W.  Va.  419;  Wash- 
burn V.  Washburn,  23  Vt.  577;  Kelly  v.  Green- 
leaf,  3  Story,  93;  see  sec.  2435,  vest. 

Tliis  does  not  refer  to  matters  outside  of 
the  partnership  business.  The  obligations 
of  copartners  inter  se.se,  wliatever  may  be  t'lea' 


Blarhiston,  S3  Pa.  St.  474. 

Selling  partnership  property. — A!thou\jh 
one  partner  may  sell  tlie  piOjierty  of  the  firm 
and  ^ive  good  title  to  a  third  part'/,  lie  cannot 
Sell  t  >  himself.  Such  sale  is  simply  void,  and 
the  legal  anil  equitable  title  remains  ps  it  was 
before  the  attempted  transfer:  Coms'ock  v. 
Bnchanin,  57  Barb.  127;  Nelson  v.  Iluyner,  66 
111.  4S7. 

Partner  may  purchase  copartner's  inter* 
est.  A  partner  may  p.u-chase  liis  copartner's 
interest  in  real  estate  when  botii  have  an  equal 
opportunity  and  means  of  knowing  tlie  value 
of  tlie  property  ond  its  condition,  and  the  pub- 
licity ot  a  sheriff's  sale  is  prima  facie  evidence 
of  al)sence  of  frauil:  Bradbury  v.  Bams,  19 
Cal.  120. 

Rsnewal  of  lease. — One  partner  having  ob- 
taini.'il  a  renewal  of  the  lease  of  tlie  partnership 


nature  and  extent,  refer  only  to  the  conduct  of  projierty  will  not  be  adowcd  to  treat  this  re- 

the  business  in  which  the  firm  is  engaged.    Oat-  newed  lease  as  his  own:  Mitchi'll  v.  Read,  01 

Bide  of  such  business  there  is  no  lestraiut  upon  Barb.  310;  S.   C  Gl   N.  Y.    123;  see  also  Afi/"- 

the  right  of  either  partner  to  traffic  for  his  own  fan  v.  Kuf/l>'e,  9  Cal.  602;  Eakln  v.  Shainaker, 

profit:    McKenzie   v.    Dirkinson,  43  Cal.    119;  12  Tex.  51;  see  sec.  240j,  o/z^c. 

Kinn  v.  Whiton,  15  Wis.  084;  Brown  v.  WBrlen,  See  generally:  Liud.  ou  I'art.  500  et  seq. 
4  Nev.   195;    Wheeler   v.   Saye,    1  Wall.   518; 

2412.    Mutual  liability  of  partners  to  account. 

Sec.  2412.  Each  member  of  a  partnership  must  account  to  it  for  everything 
that  he  receives  on  account  thereof,  and  is  entitled  to  reimbursement  therefrom 
for  everything  that  he  j^i'operly  expends  for  the  benefit  thereof,  and  to  be 
indemnified  thereby  for  all  losses  and  risks  which  he  necessarily  incurs  on  its 
behalf. 

"Where  the  loss  is  attributable  to  the  cul- 
pable negligence  of  a  partner,  and  the  act  i)y 
wliich  the  los.s  was  occasioned  was  unaut'uiri::ed 
or  forbidden,  and  not  subsecjuently  ratirie<l,  he 
alonj  is  liable:  (-'rove  v.  Miles,  85  ill.  85;  L"Oi:ey 
V.  i.iUenioater,  11  lleisk.  133;  Pierce  w  Daniiln, 
25  Vt.  624;  Sviilh  v.  Lorii.;/,  2  Ohio,  440; 
Lef'ver  v.  Lfiiderteood,  41  Pn.  ii'z.  50-");  this  v. 
Ilellinan,  25  Onio  St.  ISO;  Blur  v.  Johnston,  1 
Head,  13;  I lo'ri-ll  y.  Harney,  5Ark.  2,"0;  Jtsnap 
V.  ( 'ook,  0  X.  J.  L.  434. 

Partner's  aots  bi.ids  firm:  Sec.  2420.  post. 

luterest  on    capital    advanced.— In   the 


SeeLindleyon  Part.,  Ewell's notes,  760,  777- 
781. 

"Where  a  partner  acts  bona  fide  and  with 
a  view  to  the  benelit  of  the  firm,  and  without 
culpable  negligence,  the  loss  must  be  eijually 
borne  by  all:  McNair  v.  Rayland,  1  Dcv.  Eq. 
616;  Wa'pole  v.  Renfroe,  10  La.  Ann.  92;  Rob- 
erts V.  Totten,  13  Ark.  609;  Jenkins  v.  Peckin- 
3>nn>/h,  40  Ind.  133;  Jldlerv.  W ilUam->wii.z.  23 
Avli.  500;  Morrison  v.  Smith,  81  111.  221; 
Campbell  v.  Stewart,  34  Id.  151;  Day  v.  Lock- 
uyod,  21  Conn.  185;  Kariiii  v,  Donegan,  15 
Kan.  4Jj. 


408 


Title  X,  Chap.  IT.]  GENERAL  PARTNPIRSHTP.  §§  2413-2424 

absence  of  a  special  agreement  to  that  effect,  rule  applies:   Tntt  v.  Land,  50  Ga.  3;i0;   Jark- 

no  m  tn-Kt  will    he  allowed    uixiu  capital    ad-  sou  v.  Johusoit,  11  Hiia,  509;  Init  sec  Liiulley 

vaiiceil    l)y  any  ])artiicr   until   after   a   ge!iei';il  on  Part. ,  sec.   7SS,  and  note;    and  note  under 

eettleuieut   (,r    dissolution:    June's  v.    Jukc-.s,    1  Iloblen  v.  Peac<>,  45  Am.  Dec.  51S.     Tliis  ques- 

Irevl.  E(|.  3.j2;    iJenha    v.  Smith,  20    Ala.   750;  tion  must  l>e  solved  by  and  must  dei>ei)d  upon 

Lcp  v.  Lo.<lJ>rooke,  8  Dana,  214;    Wajiinncr  v.  the  cii-ciimstances  of  each  case:  (7y.';"r'.'*  .4;);/ea^, 

Gran,  2  lieu.  &  M.  003;  Ga<je  v.  Purmelee,  87  02  Pa.  St.  73;  Buckiiujhani  v.  Lud.nm,  2J  N.  J. 

111.  ."Vii).  Eej.  345;  JohiiHoii  v.  llarUhoriie,  52  N.  Y.  173; 

Where  one  partner  puts  in  his  skill  and  liis  and  note  to  JJoldeii,  v.  Peace,  45  Am.  Dec.  518, 

time,  and   the  other   puts  in  cafjital,  the  same  supra. 

2413.    No  covi2oensalion  for  services  to  firm. 

Sec.  2413.  A  partner  is  not  entitled  to  any  compensation  for  servioea 
rendered  by  liim  to  the  partnership. 

An  agreement  for  compensation  may  be  the  affairs  of  the  partnership:  Gri'jffn  v.  Clark, 

male:  I'niucy.  Thatcher,  2o\Wnd.  ■i')0;Grhi(js  23  C  d.  427. 

V.  Clark,  23   Cal.  427.     The  commissioners,  in  Atto:-n3y  at  law — Rsfusal  to  render  ser- 

their  drauLrht,  say  the  same  tiling.  vises.— Wliere  an  attorney  r.t  liw  refuses  to 

After  dissolution   by  death,  if  the   sur-  act  as  partner,  or  to  perform  the  functions  of 

viviug  partner  exi>end3  his  time  and   labor  in  such  in  the  prosecution  of  a  cause  whicb  has 

tlij  care  and   management  of  the  partneiship  been  intrusted  to  bis  finn,  he  is  not  entitled  to 

property,    liy  wliicli   its  value   is  en'.ianced,  he  any  part  of  the  fees  subse(|uently  earned  by  his 

Ehoiiid  receive  compensation    for  the  same,  to  pa"t;icrs  in  the  cause:  Denver  v.  Rijanc,  01)  U. 

be  deducted  out  of  the  profits  arising  from  the  8.  355;  and  see  also  Marnh's  Ap/iffU,  GO  Pa.  St. 

e:  h  meed  vain  J  of  the  property.     B  it  hes'.iould  33;   Lindley  ou   Part.,   774,    775,    anii  notes. 

receive  no  coaipcnsation  for  merely  winding  up  Swell's  ed. 

ARTICLE  IV. 

RENUNCIATION    OF   PARTNERSHIP. 

2417.    Ilenunciatio7i  of  future  profils  exonerates  from  liability. 

Sec.  2417.  .  A  partner  may  exonerate  himself  from  all  future  liability  to  a 
third  person,  on  account  of  the  partnership,  b}'  renouncing,  in  gootl  faith,  all 
participation  in  its  future  profits,  and  giving  notice  to  such  third  person,  and 
to  his  own  copartners,  that  he  has  made  such  renunciation,  and  that,  so  far  as 
may  be  i]i  his  power,  he  dissolves  the  jDartnership  and  does  not  intend  to  be 
liable  on  account  thereof  for  the  future. 

"The  provisions  of  this  and  the  following  not  be  as  regards  general  partnersliips:  See 
Bection  are  iute'nded  to  enable  a  partner  wlio  Skiiiwr  v.  Datjton,  10  Johns.  513,  538:"  Com- 
is  unable  to  )irocure  an  immediate  lUssolutiun     mis  ioni-rs'  note. 

of  the  tirni  to   escape  from    future  entangle-         Dissolution  of  partnership:  See  sees.  244i) 
nient.     They  are   certainly  new  in  so  far  as     et  set^. 
they  rel.ite  to  special  partnerslii[is,  but  may 

2413.    Effect  of  renunciation. 

Sec.  24iS.  After  a  partner  has  given  notice  of  his  renunciation  of  the  part- 
nership, he  cannot  claim  any  of  its  subsequent  profits,  and  his  copartners  may 
proceed  to  dissolve  the  partnership. 

CHAPTER  II. 

GENERAL   PARTNERSHIP. 

Article  I.     What  is  a  General  Partnership 2424 

II.       POWEIUS   AND    AlTHOUITY    OF    PARTNERS 2423 

III.  Mutual  Obligations  of  Partners 2435 

IV.  Liability  of  Partners 2442 

V.     Termination  of  Partner.siiip 2449 

\l.     Liquidation 245S 

VII.     Of  tue  Use  of  Fictitious  Naaies ► «...  2-^0 

ARTICLE  I. 
what  is  a  general  partnebship. 

2424.    General  partnen^hip ,  wJiaf. 
a&c  2424.     Every  partnership  that  is  not  formed  in  accordance  with  the  laTy 

409 


§§  2428-2430  OBLIGATIONS.  [Div.  Ill,  Part  IV, 

concerning  r.pecial  or  mining  partnerships,  and  every  special  partnership,  so  far 

only  as  the  general  partners  are  concerned,  is  a  general  partnership. 

Special  partnerships:  See  sees.  2t77--510,  ;>o.s<. 
Mining;  partxiersliips:  See  sees.  2511-23:^0,  ^^os/!. 

ARTICLE  II. 

POWERS  AND  AUTHORITY  OF  PARTNERS. 

2428.    Power  of  majority  of  partner. 

Sec.  212S.  Unless  otherwise  expressly  stipulated,  the  decision  of  the  major- 
ity of  the  members  of  a  general  partnership  binds  it  in  the  conduct  of  its 
business. 

Minority  must    be  consulted,   and   any  tienfc  partner:   Lind.  on  Part.  G90  et  seq.;  ^fto« 

other  eouise  ot  pioceeding  on  the  part  of  the  v.  Johnson,  32  N.  II.  9;  Liriii /■■iton  v.   L>/'h,  4 

majority  is  not  in  goo:l  taith:    Lind.  on  Part.  Johns.  Cli.  573;  Story  on  Part.,  sees.  12."],  125. 
(juO;  SCO  Chicaj J,  B.dsQ.  li.  Co.  v.lloijt,  I  Brad.        Provisions   as  to  povVGr.'j  of  majorities 

App.  371.  in  articles  of  incorporation  ni'.i  t  he  strictly  fol- 

^-hange  in  the  business.— It  is  well  settled  lowed:   Story  on  Part.,  sec.  213;    Wnterhury  v, 

the  niajority  can  govern  only  in  the  dne  course  Express  ('o.,  50  Barb.  157;  S.  C,  3  Abb.   Pr., 

■of  business,  and  cannot  change  the  chai-acter  N.  S.,  1G3. 
of  the  business  against  the  will  of  one  dissen-        Miiiing  partnerships:  Sec.  2520,  post. 

2,4.23.    Authority  of  individual  partner. 

Sec.  2420.  Every  general  jDartner  is  agent  for  the  partnership  in  the  trans- 
action of  its  business,  and  has  authority  to  do  whatever  is  necessary  to  carry  on 
such  business  in  the  ordinary  manner,  and  for  this  purpose  may  bind  his 
copartners  by  an  agreement  in  writing. 

No  authority  beyond  soope  of  partner-  141;  Pierce  v.  Jadson,  21  Id.  C3C;  Curri/  v. 
ship  business.— One  niember  of  a  copartner-  U7iUe,  51  Id.  530;  Ilendrie  v.  JJerkowUz,  37  Id. 
.ship  cannot  be  made  liable  for  the  act  or  under-     113. 

taking  of  another  in  a  transaction  not  embraced  Ratiiioation. — The  mere  fact  that  a  partner, 
in  their  original  partnership  business,  unless  upon  being  informed  that  his  copartner  haa 
proof  is  adduced  that  lie  knew  of  the  transac-  given  a  firm  note  for  his  iudivitlual  debt,  does 
tion,  and  assented  to  it,  or  subsequently  ratiiied  not  deny  his  liability  thereon,  does  not,  per  se, 
it:  Goodman  v.  IVhiie,  25  Miss.  103;  Ilotcldn  amount  in  point  of  law  to  a  ratilioation  of  the 
V.  Kent,  8  i\Iich.  520;  Vlaiffon  v.  Ilanly,  27  Mo.  Reiihln,  v.  Cohen,  48  Cal.  545. 
53G;  WiUes  v.  March,  30  N.  Y.  344;  Lomj  v.  Cas^s  of  guaranty,  proof  of  authority  must 
Carter,  3  Ired.  L.  238;  Davis  v.  Blackwell,  5  be  male:  Story  on  Part.,  sec.  127. 
Brad.  Aiip.  32;  and  see  Rich  v.  Dans,  G  Cal.         Conmionliability  for  losses:  See  see.  2412. 

2430.    What  authority  partner  has  not. 

Sec.  2430.  A  jjartner,  as  such,  has  not  authority  to  do  any  of  the  following 
acts,  unless  his  copartners  have  wholly  abandoned  the  business  to  him,  or  are 
incapable  of  acting: 

1.  To  make  an  assignment  of  the  partnership  property  or  any  portion  thereof 
to  a  creditor,  or  to  a  third  person  in  trust  for  the  benefit  of  a  creditor  or  of  all 
creditors; 

2.  To  dispose  of  the  good-will  of  the  business; 

3.  To  dispose  of  the  whole  of  the  partnership  property  at  once,  unless  it 
consists  entirely  of  merchandise; 

4.  To  do  any  act  which  would  make  it  impossible  to  carry  on  the  ordinary 
business  of  the  partnership; 

5.  To  confess  a  judgment; 

6.  To  submit  a  partnership  claim  to  arbitration; 

7.  To  do  an}^  other  act  not  within  the  scope  of  the  preceding  section. 

Subd.  1.     As3i3nins   partnership    prop-  letter  of  the  absconding  partner  were  held  to 

erty. — That  one  partner,  when  his  copartners  give  a;ithorii;y;  and   see   Pa'iiwr  v.  Mi/i-rx,  43 

are  absent  at  a  great  distance,  may  as;!ga  the  Barb.  4j:);  Dcrkard  v.  Oisc,  33  Am.  Dcj.  28?. 

fn-m  property:   Farbi-s  v.  SraniieU,  13  Cal.  242;  "As  the  code  settles  the  law  an  1  denies  the 

Beruheim  v.  Porter,  3   West  Coast  Rep.   434;  existe  ice  of    the  authority,    it   would    not   be 

In  Welles  v.  March,  30  N.  Y.  344,  the  acts  and  proatablo  to  examine  at  leug.h  the  cases  in 

410 


TnxiX,  CiiAF.  II.] 


GEXSKAL  PARTNERSniP. 


§§  2431-2435 


which  the  question  has  heen  considered:"  From 
coiniiiissinners'  statement. 

Su'-d.  2.  "A  sale  of  ths  good-will  of  t!ie 
business  would  j)rj\ent  it  from  being  eanicd 
ou,  au  1  therefore  it  would  seem  clear  that  such 
a  salj  is  beyond  tho  scope  of  a  partner's  author- 
ity:" From  co:^iniiislo.icrs' Uiite. 

Su  jd.  3.  B?lQ  by  one  partner.— That  one 
of  a  partuershi,!  ia  cattle  may  sell  all  the  catUo, 
see  i'rlten  V.  Mdllr,  .S  West  Coast  Rep.  (J  19. 
In  tho  followiai,'  cases  it  has  been  held  that  in 
the  absence  c.f  fraud,  one  partner  mi.;ht  sell  tin; 
whole  of  the  goods  of  t'.ie  partnership:  Ariiold 
V.  BroiVJi,  O.J  A:n.  Dec.  ^.Oj;  Mount  jo  i  v.  I  I.A- 
den, \1  Id.  S!;l;  Dvckaril  v.  Case,  30  U.  237, 
and  note;  WiHirtnu  v.  Barnett,  10  Ka-.i.  4.3.); 
Ui/rsc'/cUler  v.  Kcy-o'r,  5'J  Ala.  ?>'^>S;  Wiltiams  v. 
Iiobcrts,  G  Coldw.  -10?>;  but  see  Kimhally.  Ilnm- 
iltoitefc.  Ins.  Co.,  S  1j0sv\'.  405.  But  he  cannot 
convey  the  realty  of  the  firm  by  assi'nment  or 
deed:"/;,/-,er  V.  MrConiirll,  IT'IH.  217. 

Subd.  4.  Prcveatins  the  carrying  on  of 
business:  "Sec  din:-cntii:g  opinion  of  Deuio, 
J.,  in  Mabhctt  v.  White,  12  N.  Y.  442.  Tiiis 
rule  was  (•:'.!phatii;ally  asserted  as  to  corpora- 
tions in  Ahhott  V.  Anierhaii  Hard  Uahbcr  I'o., 
3o  Barb.  578;  and  hasrjniteasmuch  application 
to  iavtnerfdii|is:  "  Commissioners'  note. 

Su'cd.  5.  Confe-tsins  judgmout — -'The 
principles  cf  the  common  law  which  operate 
to  disable  a  partner  from  binding  his  copartners 

2431.    rartner'a  acts  in  bad  faith,  icltm  iuf(f('ctual. 

Sec.  2431.  A  iiartner  is  not  bound  by  any  act  of  a  copartner,  in  bad  faith 
toward  him,  though  within  the  scope  of  the  partner's  powers,  except  in  favor 
of  jiersons  who  have  in  good  faith  parted  with  value  in  reliance  upim  such  act. 

Tho  above  section  is  founded  on  the  fol-  G40;  McNeil  v.  First  Con<ire<jaiional  Society,  4 
lowing  equitable  doeirine  quoted  by  tho  com-     11.  421. 

missioncrs  in  their  drau;,ht  of  the  code:  "  If  a  U::oo'f  firm  property  inpayment  of  privata 
choice  nmst  be  made  wiuch  of  two  parties  ma.-it  de'.:.t3.  —  Here,  also,  if  the  private  crctitor  ia 
Buffer  by  the  bad  faith  of  a  person,  that  one  cogni;:ant  of  the  fact  that  the  partner  is  misap- 
who  by  association  with    him   indorses    him     plying  the  funds,  etc..  of  the  partnership,  h© 


by  specialty  also  incapacitated  him  from  bind- 
i:ig  them  bj'  a  voluntaiy  confession  of  judg- 
ment; nor  can  sucii  ]iartuer,  by  virtue  of  his 
i.iplied  i)0wer,  authorize  a  third  i)ei-son  to  cou- 
fe  sa  j  ulgmentagainstthc  lirm:  Ure-iiw  Beats, 
2  C  d.  251;  McB.ide  v.  l/ro/aii,  1  Wend.  335; 
II  aiT/iiij  V.  Ilobinnon,  1  Holf.  Ch.  521;  Ci-iuie 
v.  I'rench,  1  Wend.  311;  Cerard  v.  Basse,  1 
D..11.  119;  iMcKee  v.  Ba^ilc  of  Mt.  Pl'a--<ant,  7 
Ohio,  175;  Ucminrj'on  w  i'nminiiKjs,  5  Wis.  138; 
Hull  V.  earner,  31  Miss.  145;  Sho  v.  State 
l)a,-k  of  III.,  1  Scam.  42S;  Harlow  v.  Reno,  1 
Blac!cf."252;  Harper  v.  For,  7  Watt^  &  S.  142; 
Ortrtoii-  V.  Tozcr,  7  Watt?,  3:)1;  Morgan  v. 
Riliardsoii,  IG  Mo.  40J;  Binney  v.  LcGrand, 
19  Barb.  592;  it  would  seem  tliat  a  ju  Igment 
so  confessed  should  be  bia<lin','  ui)On  ihe  part- 
ner ma'.dug  the  confession:  Green  v.  Beats,  2 
Cai.  254;  Crane  v.  Frnicli.  \  Wend.  311;  but 
SCO  Clinpin  v.  Thompson,  29  Cal.  G  jl ;  and  Jones 
V.   i.'ai'ei/,  5  Id.  345:"  Com  nissioneis'  note. 

Subd.  6.  Subinitting  to  arbitration. — 
"It  was  held  in  Jones  v.  B  iit<'i/,  5  Cal.  345, 
tiiat  one  partner  canni't  bind  the  lirm  by  asub- 
iiu.ision  of  2">artnership  matters  to  arbitration, 
l)ut  that  such  submission  would  be  good  against 
the  partner  agreeing  to  it:  Parsons  on  I'art., 
p.   Uil:"  Commissioners' note. 

Gubd.  7.  "Want  of  authoriiy  in  general: 
See  .sec.  2429,  ante,  and  note. 


ought  to  suffer." 

Good  faidi.  duty  to  observe:  See  sec. 
2411,  ante,  and  note;  Lind.  on  Part.,  pp.  392 
et  seq.,  and  pp.  5G9ct  seq.;  sec.  2405,  aide,  and 
note. 

Partner  acting  in  bad  faith. — If  one  part- 
ner should  make  a  negotiable  instrument  in  the 
name  of  the  lirm,  and  transfer  it  to  a  third  per- 
son who  knew  that  the  proceeds  were  to  be  ap- 
plied to  i^urposes  fraudulent  upon  the  firm,  or 
not  within  the  scope  of  their  business,  or  for 
illegal  ]  urposcs,  it  would  not  be  binding  uiion 
the  lirm:  Story  on  Part.,  sec.  131;  Birh  v. 
Davis,  GCal.  Ill;  S.  C,  4  Id.  22;  Btouji-tt  v. 
IVeed,  110  Mass.  215;  Wrhjht  v.  Brossean,  73 
111.  331;  Si''iiall  V.  Coney,  49  Misj.  701.  But 
in  tho  hands  of  an  innocent  holder  it  would 
bind  the  lirm:  llicli  v.  Davis,  supra.  The  sale 
of  parUicrsIiip  pro]  erty  to  a  bona  fide  purclia.-er 
without  notice  is  l^iniliiig,  though  the  partner 
m.iy  not  have  acted  in  good  faith  as  to  liis 
copartner:  Crites  v.  MiUer,  3  West  Coast  lie|i. 


wdl  be  deemed  to  have  acted  7na'a  jide,  and 
t!  e  transaction  will  be  ticated  as  a  nullity: 
E  hill  V.  Cretn,  13  Bush,  C12;  Stni/h  v.  A  itdrens, 
49  111.  2S;  llitliker  v.  Franris-o,  G5  Mo.  59S; 
Cozlian.-<eu  v.  J«f/(/,  43  Wis.  213;  Bt  djell  v. 
Slei]>,r,  07  Me.  499;  Hart  v.  Clarhe,  5G  Ala.  19; 
Todd  V.  Loroh,  75  Pa.  St.  155;  BiUimjK  v. 
Mii'j^,  53  Barb.  272;  Meridla.i  Sat.  B'lc  v. 
Brandt,  51  Ind.  5G;  Lewis  v.  ]Ve.-<lorer,  20  Mich. 
14;  but  see  Tyler  v.  Scott,  41  Vt.  201;  as  to 
negotiable  instruments,  see  f-'l"y  v.  <  oltreH,  IS 
Pa.  St.  20S;  Carrier  v.  Cameron,  31  Mich.  373; 
Vu-is  V.  (Jootc.  9  Nev.  1.34;  Wittraia  v.  Van 
Wornier,  41111.  525;  Lime  L'o-lc  Fire  Ins.  Co. 
V.  yV.-(t/.  58  Me.  415;  LTnlon  Xat.  B'kufltah- 
vay  V.  Uaderhlll,  21    Ilun,  178. 

For  eases  oJ're'ea.<e  ofpariier.-iliip  debt  by  one 
partner,  see  Williams  v.  Briiiihdl,  13  (Jray, 
■102;  Casey  v.  Career,  42  Id.  225;  l/ar/^er  v. 
Wri  /le;i,  48  Ga.  495;  Broaiiln.-<  v.  Eu  ms,  03  N. 
C.  0.33;  Tlnmicu'i  v.  Pennrich,  28  Ohio  St.  55; 
I'des  V.  Bangs,  30  Wis.  131. 


ARTICLE  III. 

MUTUAL    OBLI(iA:lU.\S    (;F   PARTNERS. 

2435.    Profits  of  individual  partner. 

Sec.  24;]5.     All  profits  made  l)y  u  <!;(;n(Miil  partner,  in  the  course  of  any  busi- 
ness usuiilly  carried  ou  by  the  partuer.slilp,  belong  to  the  lirm. 

Sftc  sec.  2411,  ante,  note. 

411 


S24n5--2444  OBLIGATIOXS.  piv.  III.  Part  lY, 

2433.    Ill  \rhnl  bnainpsm  pnrfnrr  man  "^  engage. 

Sec.  2430.     A  general  pnrtuer,  wbo  agi'ees  to  give  bis  personal  attention  to 

the  business  of  the  partnership,  may  not  engage  in  any  business  which  gives 

Lim  an  interest  adverse  to  that  of  the  partnership,  or  which  prevents  him  from 

giving  to  such  business  all  the  attention  which  would  be  advantageous  to  it. 

Enraging  in  adverse  businsss. — Where  a  Aid  as  to  \v!iat  is  an  adverse  business,  sec  Jfc- 

pnrtiic:- e-j-acv^*  in  siicli  adverse  tra.lc,  lie  miy  At  inii  v.  /fain'*.  9  Bush,  IT);  Drew  v.  Br'anl, 

be  c.a:p«e.ic>l,    in   equity,   to  account   for  all  107  Ma3>5.  G4;  Par.iell  v.  Robinxon,  58  Ua.  "JG. 

profits  lua  ic  thereby:  /ferr^rtv.  Ameu  SB  'sw.  E]nity«ill  not  djcree  an  aocountof  fraud  iileufc 

115;  Uro  ra  v.  ShficLlfj'ortl,  53  M.>.  122;  Po-n-  JT^ins:    ToilJ  v.  Jiiijferty,  3  Stew.  254;  see  sec. 

eroj/  v.  Uritloii,  ;'»7  Mo.  5^>I;  Lort  v.  CariH-tU-r,  2438,  po^d. 
30  Ind.  284;  J!rts  v.  UeUmtin,  25  Ohio  St.  ISO. 

2437.  In  ichal  he  may  engage. 

Szc.  2i3T.     A  partner  may  engage  in  any  separate  business,  except  as  other- 

■vrise  provided  by  the  lost  two  sections. 

"Wiiere  thsre  are  no  covsnants,  a  luon  visions  of  the  text:  Caldic^llv.  L'ther,  7  Paige, 
may  eagge  iu  as  many  j^iartaersa  ps  as  he  4>>,  494;  Ship  Po'onific,  2  Black.  581;  Glass' 
pleases,  provident  he  does  not  violate  the  pro-     iinjlon  v.  Thwaites,  1  Sim.  &  St.  124. 

2438.  Must  account  tofirmf-tr  pmfils. 

Sec.  243S.  A  general  partner  ix-ansacting  business  contrary  to  the  provisions 
of  this  article  may  be  required  by  any  copartner  to  account  to  the  partnership 
for  the  profits  of  such  business. 

AETICLE  IT. 

UABILITT    OF   PART^fZES. 

2442.  TAabUihj  ofpariner.^  to  third  per.<ons. 

Src.  2442.  Every  general  partner  is  liable  to  third  persons  for  all  the  obli- 
gations of  the  partnership,  jointly  with  his  copartners. 

General    partnsrs    are     jointly    liabls:  the  partnership,  and  actu.olly  used  therefor. 

2^or".h  I  ■<.  Co.  V.  I'o'.'fr,  0^3  Col.   1-37.     la  d.i-  Modi'i  ft  ronventio  rlncunt  l^'jem:  Good' now  v. 

clarin^  up  m  this  liaijiLry,  a.^  where  an  action  Jone-t,  75  I.l.  43;  Gat-^s  v.  Waf-<on,  54  Mo.  .")S5; 

ia  brought  again-t  a  partnership  on  a  promis-  Smith  v.   Cj-dhn,  115  Mass.   3SS;    Williamn  v. 

Bor>'  note,  it  must  !«  made  to  appear  tliat  the  GUllf*,  75  N.  Y.  197;  XcU.  Baul:  o/  Metro po'is 

parties  signing  the  same  executed  it  as  part-  v  Spmrjue,  20  X.  J.  Eq.  13;    Pllxk  v.  WHl- 

ners:  Fr-^riiaJi  v.  C  im]>htU,  55  II.  197.  iam.*,  42  Miss.  SS;  see  als.-)  United  States  Baiik 

Escltisive  credit  given  to  ons  partner. —  v.   Wmiei/,  5  Mason,  176;    Lindley  on  Part. 

It  is  v.ell  sertunl  that  \%here  a  debt  is  con-  301-3G;?. 

tractetl,  or  a  contract  entered  in:<i  by  one  i»art-  Dormant  partners. — This  rule  is,  of  course, 

ner  u'«o-i  Lis  own  exclusive  cretlit,  he  will  Ije  not  a[)piicab!e  to  dormant  partners:  Stury  on 

held  lir.ble  alone,  even  although  the  fniits  of  Part.,  sees.  03,  138, 
his  ooutroot  uiny  Lave  been  for  the  benetit  of 

2443.  Llahd'du for  each  otlicr'g  acts  a^^  agevts. 

Sec.  2443.     The  liability  of  general  partners  for  each  other's  acts  is  defined  by 

the  title  on  agency. 

"  Ihe  law  re§:ulating  the  liability  of  part.    v.  TTchnan,  6  C.  B.,  X.  S.,  47,  98:"  Coramis- 
ners   is  .-i  me-e  brancli  of  the  law  of  ageucv:     sioners'  note. 
En.tfi  V.  y.rholU,  G  IL  &  L.  Cas.  417;    Cox        See  sees.  2429  and  2430,  ante. 

2444.  LUibllUij  of  one  held  out  on  partner. 

Sec.  2444.  Any  one  permitting  himself  to  be  represented  as  a  partner, 
general  or  .special,  is  liable,  as  such,  to  third  persons  to  whom  such  representa- 
tion la  commuuicated,  and  who,  on  the  faith  thereof,  give  credit  to  the  partuer- 
Bhip. 

Liability  of  one  held  out  as  a  p>artner. —  93;  DaiJif  v.    Coom,   64  Inl.   545;   Dodd  v. 

TIjc  f  I  ov.::i_'  are  s^r.ne  of  tlie  late  casc?  il-  Bishop,  30  La.   An.    1178;     W'alriUh    v.    Vilfy, 

last.raii\xofilji<  familiar  iloctrine:  I'erLw  Loc-  2    Bosh.    478;     Thomas   v.   Green,   .30    M'l.    1; 

rU,  41  CaL  521;  lirn-jman  v.  McG>'ire,  32  Ark.  McVlfrxon  v.  Satlianton,  3S  Mich,  377;  /•'i^tfn' 

733;  ('rirmlrh-u I  v.  GVerr,  55  Ga.  110;  Paldmaa  ho'ii^e  v.  Lei/h.  57  Miss.  097;  DoiczfJot  v.  Raxo- 

T.  Taylor,  75  Ld.  027;  Peek  v.  LtuL,  38  Iowa,  Vutj^,  58  3lo.  75;  Gauta  v.  UoUm,  18  Kan.  500; 

412 


TiTLB  X,  Chap.  IL] 


GEXERAL  PAETJCEE5HIP. 


82H5-2450 


Dobmm  r.  Chamben, 

Bithop.  24  01] 

90;  S^yUs  v.  J/*yfr, 

2445.    Ao  one  liable  as  partner  unless  hdd  out  as  such. 

Sec.  2445.     Xo  one  is  liable  as  a  partner  who  is  not  nth 
provided  in  the  last  section. 

The  diS  sdty  lies  in  proring  that  a  paxtoer- 
tiup  cxizts  "  13  fact: "  See  sec  '23S5.  note,  aafe,- 
8tory  on  ParL,  sec  49,  note,  and  sees.  53-G2; 
lindSey  on  Par<L,  sees.  33,  34. 

Shanng  in  the  prolita. — "  A  peeoliar  rale 
has  long  been  csttaLlisbed  at  common  lav,  hj 
vbich  any  one  refeiring  or  v<dnntan]y  acquir- 
ing a  rigbt  to  receire  a  shate  of  the  net  i>ro6tB 
of  a  partnership  bosinesB  is  liable  to  thinl  per- 
Bons  as  a  partner,  vhether  th^  were  aware  of 
the  fact  or  not:  Smiik  v.  WrigkJf.  I  ALh.  Pr.  243: 
Tiifk  T.  IlrtO,  16  How.  Pr.  175;  K'oad  r.  Vai- 
Ui'e,  7  Ohio  St.  172;  Grace  v.  .<!r,i'.k,  2  W. 
Black.  DOS;  WoMfjh  v.  Carver,  2  H.  BJack,  235; 
Chmp  r.  CmmoMdf  4  Bam.  &  AliL  6G3.  Bat 
this  rale  is  most  earnestly  omdemncd  by  the 
beH  vriters  (m  the  subject:  Story  on  Part.,  sec 
3C:  lindley  on  Part.  40,  and  note;  and  has 
been  declared  to  be  a  bad  rale  hy  eminent 
judges:  See  French  t.  Styriag,  2  C.  B.,  N,  S., 
aCf;  Cox  V.  nicl-mam,  9  Id.  G3;  3  IX  544.  A 
mere  agreement  for  ashare  in  the  g?n@  recetpts 
ofabosineBs:  Stn7oaCanL,8ec2G7;  lindley 


on  Piii.  38;    PtaaWm,  x.  E 

18G;  see  lleyiae  t.  D*r<je,  9  \ 

compensation  forserrice?:  Vc 

20  Wend.  70;  Rtm^liuKn  v. 

W.  292;  Pott  x.E—      '-  '" 

M€ar^aU,  12  CoEii 

X.Y.  132;  1  Den:. 

16  Barb.  309;  or  Xhta  vat  o: 

«£rvc(  T.  flomiamd,  3  Denio,  C: 

aspeciSed  [guportiun  of  the  ;r.:.ii:  .L- 

Cb^  6  Met.  82;  £x  parte  7/  7I!».t-«-.  ]: 

4M — does  not  create  a  part-  -  - 

The  rale  stated  at  the  head  '. : 

khed  by  the  code,  and  hec: 

ners  and  f  enoos  brooght  v 

section  2444  are  to  be  hcLl 

gagements  of  a  finn:"  Car:. 

see  also  the  note  to  sec  2393 

BookB  cf  fizm  aze  not  ev:  i 
man  a  partner  thetein,  onle^ 

partneis!!dp  u  first  proved  - _ 

Jogmt,  63  CaL  37o. 


AETICLE  T. 
TEBansAnas  of  PAzr>T3£Hi?. 
2^49.    Duration  of  partnemiiip. 

Sec.  2449.     K  no  term  is  prescribed  by  arrr^nrr.:  .  :r  its  duration,  ^%  grzerJ 
partnership  continues  until  dissolved  bj  a  ;  7  (Operation  of  law. 

DisBolatioa  oi  qpeci^l  partjaeBtdpi  See  sec  2^.',  j^-a:. 

2450.    Toial  dissolution,  ofpartner^p. 

Sic.  24-30.     A  general  partnership  is  dissolved  as  to  all  the  partnezs: 

1.  Br  lapse  of  the  time  prescribed  bj  agreement  for  its  doraiion; 

2.  By  the  expressed  will  of  any  partner,  if  there  is  no  soch  agreement; 

3.  By  the  death  of  a  partner; 

4.  By  the  transfer  to  a  per5 ::: .  z..'.  :.  ^irtrrr.  ::  t^e  Iz'izmt   :f  lz-  -irtrer 
in  the  partnership  property ; 

0.  By  war,  or  the  proL:'  i:  :::  :f  ::n-r:  -       :- :        —     :     _           -  ~ 
in  which  one  partner  res: "                    :  :  _  -^  _ .       .  _     L  r .  :   -  .1  ^ ,   . . , 

C.  By  a  judgment  of  d;  - 

Dissolution  cfpartnershtp. — £j  _  i  1    27  "                                            "-a-.  Pr. 

lapse  of  tlis  time  ^>e=i&ed:  Se :  .           ^  .    X.  J. 

Partuership,  39a.    Where,  after  tiie  ex- iratirn  L.::.    :r-:                                                     ."            •« 

of  the  time  tixed  for  the  life  of  the  firm,  the  xAToLk.^E                 .      ^                                 1 

partnership  stiil  oontinnea,  it  vill  be  inesnraed  Uofiici.  Ch.  C 

to  oontianc  on  the  same  termszs  before:  Caiferf  Stabd.  3.   T    '                                                  j 

Slate*  lloMtv.  liimaey,  5  Mason,  1S3;  Story  on  member  of  £                                                           :. 

Part.,  sees.  '27>.  279.  nev  mcmliK^. 

Subd.  2.     Wm  of  f^rtnsr. — ^As  an  eiam-  partDcrship  v 

pie  <rf  a  dissolution  occasioned  by  the  retiring  provided    bj                                                  -i  :-■, 

oi  one  of  the  partnoa,  see  Bourn  r.  Contdll,  43  Bamik  t^  M:-                                               .   533; 

Gd.  133;  and  see  snbd.  3.  w/m.     Where  the  FJUey  x.  Ph-                                                 -'  t. 

term  ol  the  partnership  is  fixenl.  no  porSaer  can  LUmt,  46  M :         ~                                                2 

work  a  dissnlation  uuesB  he  <kies  some  act  by  How.  50?:  > 

which  the  sabject-matter  of  the  {ortnership  is  5S6;  J< 

destroyed,  or  the  capacity  of  the  partner  to  r.  Erh.        - 

gire  hu  personal  attentium  no  hx^er  exists,  or  Lav  H: : 

that  a  court  may  bo  ■■thnri^rd  to  decree  a  dis-  OntL:                                                    ...!  izd 

413 


1 2451,  2452 


OBLIGATIONS. 


[Div.  m,  Part  IV, 


partnership  as^sets  do  not  hecome  confn<5e(l; 
"when  a  i>artnersliip  is  dissolved  by  the  deatli 
of  one  of  tlic  pirtuers,  its  assets,  debts,  an  1 
credits  remain  as  distinct  from  those  of  its  I'te 
members  until  its  affairs  are  wound  up  as  1)l'- 
fore  tlic  dissohition:"  Gleamnv.  WhUe,  34  Cal. 
258;   ThrVer  v.  ;^}irh.  57  Id.  447. 

Miiiins  part:i3rsli'p3  not  dissolved  by  death 
of  a  i")artncr:   Ta'jlnr  v.  Va4le,  42  Cal.  337. 

Subd.  4.  Tra:i3f3r  of  interest:  See  sec. 
2397,  ante.  Such  sale  dissolves  tlie  partnership, 
and  the  jinrch  iscr  cannot  maintain  an  action 
to  recover  liis  interest  in  the  goods,  but  must 
sue  for  an  accountiu':;,  and  will  recover  wliat- 
ever  his  assignor  would  have  been  entitled  to 
upon  a  settlement  of  the  partnership  account's; 
and  until  the  affairs  of  the  partnership  are 
thus  wound  up,  the  partner  who  did  not  sell  is 
entitled  to  the  possession  of  the  property: 
Miller  V.  Bn'jh'iiv,  50  Cal.  615. 

Where  one  member  by  consent  retires  from 
the  firm,  this  dissolution  necessarily  severs  the 
copartnership  relations  of  each  of  its  mem- 
bers: /I'o.s.s  v.  Cornill,  45  Cal.  133;  and  see  iMar- 
quand  v.  N.  Y.  Manufacturinf]  Co.,  17  Johns. 
627;  Edens  v.  William^  30  111.  252;  llortoi'x 
Appeal,  13  Pa.  St.  07;  Hor/ersv.  iV/cAo;.s-,23Tex. 
719.  In  these  1  ittcr  cases  it  has  been  held  that 
an  assignment  of  the  interest  of  one  partner  to 
his  copartner  ipno/acio  works  dissolution. 


S'lling  to  copartner:  See  last  paragraph. 
Tiiat  unless  a  comjdete  withdrawal  from  the 
])artner3hip  is  contemplated,  and  actually 
takes  place,  no  dissolution  follows  from  the 
transfer  of  a  partner's  interest  to  a  copartner, 
t'le  following  authorities  are  cited:  Monroe  y. 
IfamiUon,  GO  Ala.  223;  Matter  v.  Sh"pard,  3 
B'n.  347;  Pennock  v.  White,  10  N.  Y.  Week. 
Dl:^.  74;  Ta/t  v.  Bafam,  14  Pick.  322. 

The  amount  which  the  purchasing  partner 
j)aid  his  copartner  cannot  be  taken  into  con- 
sideration in  determining  whether  the  sale  in- 
cluded a  settlement  of  the  partncrrdiip  ac- 
counts:   Warden  v.  Bfarciis,  45  Cal.  594. 

Mortfjarfe  by  one  partner  of  his  interest  does 
not  work  a  dissolution  perse:  Slate  y.  Quid;  10 
Iowa,  451;  Dn  Pont  v.  McLarni,  Gl  Mo.  .502. 

Subd.  5.  War — The  authorities  are  col- 
lected and  critically  examined  in  Grinuold  v, 
Wnddington,  IG  Johns.  438,  490;  and  see  Ihib- 
hard  V.  Matthews,  54  N.  Y.  43;  (,'ramer  v. 
United  Stales,  7  Ct.  of  Claims,  302;  Thr  Julia, 
8  Cranch,  194;  Story  on  Part.,  sees.  315, 
31G. 

Partner's  power  after  dissolution  of  firm: 
See  sees.  2458  et  seq.,  ;30-/. 

Absence  of  a  partner  from  the  stato 
does  not  work  a  dissolution:  Bernheim  v.  Pov 
ler,  3  West  Coast  Rep.  434. 


2451.  Partial  dissolution. 

Sec.  2451.  A  general  partnership  may  be  dissolved,  as  to  himself  only,  by 
the  expressed  will  of  any  partner,  notwithstanding  his  agreement  for  its  contin- 
uance, subject  however  to  liabilitj'  to  his  copartners  for  any  damage  caused  to 
them  thereby,  unless  the  circumstances  are  such  as  entitle  him  to  a  judgment 
of  dissolution. 

See  Story  on  Part.,  see.  275,  who,  together  desire  of  a  partner  was  not  enoiudi  to  authorize 

with   ether  elementary  writers,  holds  that  no  a  dissolution  of  copartnership,  but  that  cause 

such  privilege  is  allowable;  and  in  Bradley  v.  must  be  shown. 
lla/hness,  20  Cal.  09,  it  was  held  that  the  mere 

2452.  Partner  entitled  to  dissolution. 

Sec.  2452,     A  general  partner  is  entitled  to  a  judgment  of  dissolution: 

1.  "When  he,  or  another  partner,  becomes  legally  incapable  of  contracting; 

2.  When  another  partner  fails  to  i:)erform  his  duties  under  the  agreement  of 
partnership,  or  is  guilty  of  serious  misconduct;  or, 

3.  When  the  business  of  the  partnership  can  be  carried  on  only  at  a  perma- 
nent loss. 


Subd.  1.  Lunacy. — Lunacy  does  not  of 
itself  dissolve  the  firm,  but  the  conilrmed 
lunacy  of  an  active  partner  is  sufficient  to  in- 
duce the  court  to  decree  a  dissolution:  Lind. 
on  Part.  224;  Orisioold  v.  Waddimjton,  15 
Johns.  57;  Cape  Salle  Co.'s  Case,  3  Bland,  G74; 
Story  on  Part.,  sees.  291-295;  Anonymous,  2 
Kay  &  J.  441. 

Subd.  2.  FaHure  to  perform  duties,  or 
misconduct. — Apartnerdefraudedof  hisriglit- 
ful  portion  of  the  partnership  receipts  by  false 
entries,  etc.,  of  ills  copartner,  is  entitled  to  a 
dissolution  and  accounting,  no  matter  if  the 
term  has  not  expired:  Cottle  v.  Leilch,  35  Cal. 
434. 

Voluntary  mutual  relief  associations  are  so 
far  partnerships  that  a  court  of  equity  may  dis- 
solve them  if  they  improperly  exclude  a  mom- 
ber  frojn  voting:  Gorman  v.  Russell,  14  Cal.  531. 


TTahitiial  drunJcennesn,  great  extravagance, 
unwarrantable  negligence,  bad  character,  in 
strong,  clear  cases,  are  grounds  of  dissolution: 
llowellv.  Harvey,  5  Ark.  270;  Ambler  v.  Whip- 
ple, 20  Wall,  540. 

Difficulties  and  dissejistons  of  such  a  serious 
nature  as  to  render  the  continuance  of  the 
partnership  impracticable  and  injurious  to  one 
or  both  of  the  members  may  be  grounds  for  dis- 
solution: La/ond  V.  Difir.s,  52  How.  Pr.  41; 
Blake  v.  Dorgan,  1  0.  Greene,  537;  but  see 
Caxh  v.  Eariishaw,  GG  111.  402. 

Subd.  3.  A  losing  bu-jine.!?:  Brienv.  ITar- 
Timan,  1  Tenn.  Ch.  4G7;  Sel'/'iforurr  v.  Weisnen- 
born,  20  N.  J.  Eq.  172;  )lolloday  v.  Elliott, 
8  Or.  84;  found  to  be  visiionary:  Lnfmd  v. 
Deems,  52  How.  Pr.  4 1 ;  Seijkortuer  v.  Wtissen- 
born,  supra ;  Lind.  on  Part.  223. 

Insolvency  without  ntjppagc  of  payment  or 


414 


TnxB  X,  Chap.  H.]  GENERAL  PARTNERSHIP.  §|  2453-2458 

assignment  doea  not  work  dissolution;  Si'^gelv.  Decree  of  dissolTition  may  bs  ordered, 
Chldsey,  2S  Pa.  St.  279;  Arnold  v.  Brouoii,  24  although  there  is  a  prayer  fur  general  relief: 
Pick.  89.  Hall  v.  Lonkei/,  57  Cal.  80. 

2453.  Notice  of  termination. 

Sec.  2453.  The  liability  of  a  general  partner  for  the  acts  of  his  copartners 
continues,  even  after  a  dissolution  of  the  copartnership,  in  favor  of  persons 
who  have  had  dealings  with  and  given  credit  to  the  partnership  during  its 
existence,  until  they  have  had  personal  notice  of  the  dissolution;  and  in  favor 
of  other  jiersons  until  such  dissolution  has  been  advertised  in  a  newspaper 
published  in  every  county  where  the  partnership,  at  the  time  of  its  dissolution, 
had  a  place  of  business,  if  a  newspaper  is  there  published,  to  the  extent  in 
either  case  to  which  such  persons  part  with  value  in  good  faith,  and  in  the 
belief  that  such  partner  is  still  a  member  of  the  firm. 

Notice   as   to   customers. — Knowlege   of  148.     Mailing  copy  of  newspaper  with  adver- 

any  ciicunistaiices  suliicieut  to  put  a  man  on  tisement  marked  is  not  snfiicieut:  Haynea  v, 

inquiry  will  ciiaige  him  with  notice  of  such  Carter,  1-2  Ilcislt.  7. 

facts  as   the  prosecution    of    those    inquiries  Dissolution  by  operation  of  la"w. — It  is 

would    liave    revealed:    ZoVar  v.  Janvrlu,   47  perhaps  well  to  notice  the  distinction  generally 

N.   n.  324;  Smith  v.  Vandenlnirrjh,  4G  111.  .34;  observed  in  the  books,  which  requires  no  no- 

Youiirj  V.  'i'ibbi'ltn,  .32  Wis.  79;  as  wlicn  lie  lias  tice  of  tlie  dissolution  where  it  is  cansed  by 

notice  of  the  time  when  the  partnership  is  to  death  of  a  partner,  or  by  bankiiiptcy,  or  by 

expire:  Schlaler  v.  Winjoenny,   75  Pa.   St.  .321.  war,  on  the  ground  tliat  operations  of  law  have 

But  that  a  customer  must  have  actual  notice,  a  notoriety  which  all  are  bound  to  regard,  and 

see  Johnson  v.  1'otten,  3  Cal.  343;    WillicunH  v.  tliat  it  would  be  the  acme  of  injustice  to  allow 

Boiccr-!,  15  Id.  321.  the   acts   of  the   otiier   partners   to   bind   tlie 

Coinx'rs'itious  with  third  persons  may  inform  estates  of  persons  wlio  are  incapable  of  acting 

the  creditor:  //oltgreve  v.  Wintker,  85  111.  472;  themselves,  or  of  continuing  an  autliority  for 

Davis  v.  Kci/es,  38  N.  Y.  94.  that  purpose.    Whether  tlie  above  section  con- 

Newsynprr  notice,    if  read,    is  sufficient  to  templates  this  distinction  has  never  been  judi* 

charge   the  (-ustomer:    Young   v.    Tibbe/ts,   32  cially  determine<l:  See   Story  on   Part.,   sees. 

Wis.  79;  l)ut  tlie  mere  fact  that  the  customer  319,    336,   343;  Lind.  on  Part.   404,   405;  and 

was  accust;imcd  to  take  the  newspaper  in  wiiich  note  to  Prentiss  v.  Sinclair,  26  Am.  Dec.  290. 

the  advertisement  appeared  is  not  sufficient  to  Compare  sec.  2509,  post,  where  "  by  act  of  the 

charge  iiim  witii  notice:  Zollar  v.  Jai/rrin,  47  partners"  is  tlie  qualifying  phrase  used. 

N.    II.    324;  Pope  v.  Rislcy,  23  Mo.   135;  al-  Previous  dealings. — As  to  what  constitutes, 

though  it  is  a  fact  from  which  actual  notice  see  Lnon  v.  Johnson,  28  Conn.  1;  lUechanics' 

may   be   inferred:  Treadwcll  v.   Wells,   4  Cal.  B'tnk  v.  Livingston,  33  Barb.  458;  Bank  of  the 

200.  Commonwcallh  v.  Mudgett,  45  LI.  063;  S.  C, 

Hailing  a  written  notice,  properly  directed,  44  N.  Y.  514;  Merritt  v.  Willinms,  17  Kan.  287; 

is  not  conclu' ive  that  such  notice  reached  the  Austin  v.  Holland,  69  N.  Y.  57;  Gaar  v.  Ilug- 

party  to  wliom  it  was  addressed,  nor  does  ))roof  gins,  12  Bush,  259. 

that  the  letter  was  not  returned  from  the  dead-  Mere  notoriousness  of  the   dissolution 

letter  oflice;    Init   mailing  a  notice  is  a  step  will  not  charge  a   new  customer  witli  notice 

tov/ard  ]iroving  actual  notice,  and  the  question  thereof:  Martin  v.  Searles,  28  Conn.  43;  though 

whether  it  was  received  or  not  is  for  tlie  jury:  it  is  admissible  in  evidence  for  the  considera- 

AiiHfin  V.  Holland,  09  N.   Y.  571;  Kfnnfi/  v.  tion  of  the  jury:  Lovejoy  v.  SpaJ'ord,  93  U.  S. 

Atwaler,  77  Pa.  St.   34;  Babe  v.  Wells,  3  Cal.  430,  440. 

2454.  Notice  brj  change  of  name. 

Sec  2154.  A  change  of  the  partnership  name,  which  plainly  indicates  the 
withdrawal  of  a  partner,  is  sufficient  notice  of  the  fact  of  such  withdrawal  to 
all  persons  to  whom  it  is  communicated;  but  a  change  in  the  name,  which  does 
not  contain  such  an  indication,  is  not  notice  of  the  withdrawal  of  any  partner. 

American  Linen  Thread  Co.  v.  Wortendyke,  24  N.  Y.  550. 

ARTICLE  VI. 

LIQUIDATION. 

2458.    Powers  of  partners  after  disaolution. 

Sec.  2458.     After  the  dissolution  of  a  partnership,  the  powers  and  authority 

of  the  partners  are  such  only  as  are  prescribed  by  this  article. 

Powers  of  peuimers  after  dissolution:  See  Parsons  on  Part.  400;  Lind.  on  Part.  412;  Story 
on  Part.,  sees.  320  et  seq. 

415 


§§2459-2466  OBLIGATIONS.  tDiv.  Ill,  Part  I -f ^ 

2459.  Who  may  act  in  liquidation. 

Sec.  2459.     Any  member  of  a  <Teneral  partnership  may  act  in  liquidation  of 

its  affairs,  except  as  provided  by  the  next  section. 

New  contracts. — Generally  a  dissolution  of  Limen,  40  Iowa,  777;  Bennett  v.   Bitrhcn,   61 

a  partnershii)  leaves  every  partner  in  possession  N.  Y.  2"22. 

of  full  power  (cxeept  as  in  the  next  section)  to  Promissory  notes. — One  partner  may  bind 

adjust  and  settle  its  afliiirs,  but  it  revokes  the  the  others  r.fter  dissolution,   by  a  note,    if  lie 

authority  of  one  partner  to  bind  the  other  in  have   express   authority   to  do  so.  as  from  tha 

respect  to  any  new  contracts:  Brll  v.  Morri><on,  other  pr.rtners  standinrr  bj':  Eowrw  Doiiiihisn, 

1    I'et.   Srd;  Xed  v.    Hassan,   .3  McCord,  278;  2jGa.  714;  see  also  £'a/!o«  v.  Taiihir,  10  Mass. 

Chase  v,  KmulaU,  6  Ind.  .304;  Palmer  v.  Dod'je,  54;  generally  one  ]iartner  cannot  bind  his  co- 

4  Ohio  St.  21;  Pcrrin  v.   Keene,  20  Me.   .SJo;  partner,  after  dissolution,  by  a  negotial)le  note 

Speake  v.   White,   14  Tex.   3(J4;  Bank  «f  Port  for  a   ))artner3hip   debt:  Curry   v.    White,   51 

Gibson   v.    Baiigh,    16   Miss.    290;   Duidap   v.  Cal.  530. 

2460.  Who  may  not  act  in  liquidation. 

Sec.  24G0.  If  the  liquidation  of  a  partnership  is  committed,  by  consent  of 
all  the  partners,  to  one  or  more  of  tliem,  the  others  have  no  rig'ht  to  act  therein; 
but  their  acts  are  valid  in  favor  of  j)ersons  parting  with  value,  in  good  faith, 
upon  credit  thereof. 

Commlttins  the  liquidation  of  the  part-    to  the   exclusion  of  the  others:    Parsons   on 
nership  to  one  or  more  partners  does  not  en-     Part.  403. 
large  their  powers,  but  simply  confines  thenx 

2461.  Powers  of  partners  in  liquidation. 

Sec.  24G1.  A  partner  autliorized  to  act  in  liquidation  may  collect,  compi'o- 
mise,  or  release  any  debts  due  to  the  partnership,  pay  or  compromise  any  claims 
against  it,  and  dispose  of  the  partnership  property. 

See  notes  of  cases  in  Lind.  on  Part.,  Ewell's  ed.,  412  et  seq. 

2462.  What  partner  may  do  in  liquidation. 

Sec.  21G2.  A  partner  authorized  to  act  in  liquidation  may  indorse,  in  the 
name  of  the  firm,  promissory  notes,  or  other  obligations  held  by  the  partnership, 
for  the  purpose  of  collecting  the  same,  but  he  cannot  create  any  new  obligation 
in  its  name,  or  revive  a  debt  against  the  firm,  by  an  acknowledgment,  when  an 
action  thereon  is  barred  under  the  provisions  of  the  Code  of  Civil  Procedure. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  252;  took  effect 
Julyl,  1874.] 

Indorsement  of  notes. — It  was  held  in  the  receivers,  and  prohibits  an  overstepping  of  au- 

following  cases  that  iii<lorsenient  r.fter  dissolu-  thority  or  fraudulent  bieach   of  duty:  PhilUya 

tioii  was  not  valid  without  authority  from  the  v.  'J'rezerant,  67  N.  C.  370. 

other  partners:  Frllons  v.   Wyman,   33  N.  H.  And  it  will  divide  with  the  other  partners 

351;   Saii/ord  w  Jliclc/es,  4  Johns.  224;    If  urn-  profits  made  after  dissolution,  tlinugh   in  case 

phric.s  v.  Vhitntiaii,  5  Ga.  166;    While  v.  T/idor,  of  a  misa])plication  of  the   partnership  funds 

24  Tex.  6-19;  Boijiran  v.  (jw^riiiger,  14  La.  Ann.  tlie  culpable  partner  would  have  to  answer  for 

47S.     The  code,  of  course,  remedies  this.  the  losses:   Uuclman  v.  Decker,  23  N.  J.  J''q. 

Declar.-\tion3  to  revive   barred    dobts. —  283;  Mdnerx.  NoeU  43  Ind.  324;  Entou's  Ap- 

The  En;,di^^h  doctrine  receives  such  declarations  peid,  66  Pa.  St.  483;  Story  on   Part.,  sec.  329; 

as  valiil,  luit  the  American  ilecisious  on  this  Limlley  on  Part.,  sec.  977. 

point  are  conflicting.     Many  states,  however,  'J'he  rmits  and  profits  of  property  accruing  in- 

iiave  expressly  overruled  the  English  rule,  .and  termediately  ))etween  the  decree  of  dissolution 

adopted  that  stated  iu  the  text:  Story  on  Part.,  in  the  lower  court  and  tiie  decision  on  a[ipeal  to 

sec.  324.  the  supreme  court  are  divided  as  tiicy  would 

Misconduct    of    authorized    partner.  —  have  been  prior  to  the  decree  of  dissolution: 

Equity  iuteri'eres  by  means  of  injuucLious  ,aud  Clar/c  v.  Jones,  50  Cal.  425. 

ARTICLE  VII. 

OF   THE    USE    OF    FICTITIOUS    NAMES. 

2466.    rartnerHhip,  under  fictitious  name. 

Sec.  24GG.  Except  as  otherwise  provided  in  the  next  section,  eveiy  partner- 
ship transacting  business  in  this  state  under  a  fictitious  name,  or  a  designation 
not  showing  the  names  of  the  persons  interested  as  partners  in  such  business, 

416 


Title  X,  Chap.  II.]  GENERAL  PARTNERSHIP.  §§  2467,  240S 

must  file  with  the  clerk  of  the  county  in  which  its  principal  place  of  business  i3 
situated  a  certificate  stating  the  names  in  full  of  all  the  members  of  such  part- 
nership and  their  places  of  residence,  and  publish  the  same  once  a  week  for 
four  successive  weeks,  in  a  newspaper  published  in  the  county,  if  there  be  one, 
and  if  there  be  none  in  such  count}',  then  in  a  newspaper  published  in  an 
adjoining  county.  [Amendment,  approved  March  30,  ISTi;  Amendments  1873-4, 
253;  took  effect  July  1,  1874.] 

Fictitious  partnership  name. — The  code  a  firm  name  bron.c;ht  against  a  common  carrier 
comnussioncrs  say  that  this  article  is  based  on  to  recover  damages:  Wood  v.  Erie  I?,  li.  Co.,  72 
3  N.  Y.  K.  S.,  5th  ed.,  978,  modified  to  express  N.  Y.  lOG;  S.  C,  9  Ilun,  G4S. 
more  clearly  the  apparent  intention  of  that  In  the  absence  of  statute,  trading  under  an 
statute.  Tiie  provision  of  tlie  New  York  law  assumed  name  is  not  illegal:  Lindley  on  Part- 
is: "No  person  siiall  hereafter  transact  busi-  nerslii]),  ISl;  larsons  on  i'artnership,  2(30. 
ness  in  the  name  of  a  partner  not  interested  in  Assigning  partnersliip  claim. — A  partner- 
his  firm,  and  where  the  designation  'and  com-  ship  doing  business  under  a  fictitious  name, 
pany'or '&  Co.' is  used,  it  shall  represent  an  viiliout  having  complied  with  the  terms  of 
actual  partner  or  partners."  Violations  of  this  this  section,  may  nevertheless  assign  a  claim, 
act  were  made  misdemeanors.  This  statute  is  and  the  assignee  may  sue  thereon.  In  Cheney 
designed  to  prevent  the  obtaining  of  a  false  v.  Newberry,  6  West  Coast  Rep.  790,  wherQ 
credit,  and  being  highly  penal,  will  not  be  ex-  such  an  assignee  brouglit  suit,  the  defendant 
tended  by  implication  or  construction  tocases  not  contended  that  it  was  within  the  inhiuition  of 
within  the  terms  of  the  act  fairly  interpreted:  these  provisions  of  tlie  Civil  Code,  and  the 
Eyan  v.  Ifardy,  26  Hun,  17G;  Zimmerman  v.  supreme  court  replied:  "There  is  uotliiug  ia 
Erhard,  S3  N.  Y.  74.  Nor  is  tliis  act  any  de-  the  point." 
fense  to  an  action  by  a  man  doing  business  under 

2467.  Foreign  partnerships. 

Sec.  2407.  A  commercial  or  banking  partnership,  established  and  trans- 
acting business  in  a  place  without  the  Uinted  States,  maj',  without  filing  the 
certificate,  or  making  the  publication  prescribed  in  the  last  section,  use  in  thia 
state  the  partnership  name  used  by  it  there,  although  it  be  fictitious,  or  doea 
not  show  the  names  of  the  persons  interested  as  partners  in  such  business. 
{Amendment,  approved  March  30,  1874;  Amendments  1873-4,  253;  took  effect 
July  1,  1874.] 

2468.  Certificate  of  partnership  to  be  fled. 

Sec.  24G8.  The  certificate  filed  with  the  clerk,  as  provided  in  section  twenty- 
four  hundred  and  sixty-six,  must  be  signed  by  the  partners,  and  acknowledged 
before  sonie  officer  authorized  to  take  the  acknowledgment  of  conveyances  of 
real  property.  Where  the  partnership  is  hereafter  formed,  the  certificate  must 
be  filed,  and  the  publication  designated  in  that  section  must  be  made  within  or.e 
month  after  the  formation  of  the  partnership,  or  within  one  month  from  tho 
time  designated  in  the  agreement  of  its  members  for  the  commencement  of  the 
partnership;  where  the  partnership  has  been  heretofore  formed,  the  certificate 
must  be  filed  and  the  publication  made  within  six  months  after  the  passage  of 
this  act.  Persons  doing  business  as  partners  contraiy  to  the  pi'ovisions  of  this 
article  shall  not  maintain  any  action  upon  or  on  account  of  any  contracts  made 
or  transactions  had  in  their  partnership  name,  in  any  court  of  this  state,  until 
they  have  first  filed  the  certificate  and  made  the  publication  herein  required. 
[Aiiu'iidmod,  approved  March  30, 1874;  Amendments  1873-4,  253;  took  effect  Jabj 
1,  1874.] 

The  certifioate  must  be  filed  bsfore  ac-  ticular  form  of  aclcnowleilgmcnt  is  required  by 

tiou  commenced. — The  connnenccmeut  of  an  section  1241)8  of  tlic  Civil  Codo;  but  any  I'orm  ia 

action  is  a  p:irt  of  the  maintaining  of  it,  and  this  suliiciunt  wiiiuii  indicat*'3  that  tlic  partners  havo 

section  must  be  complied  witli  bclore  action  is  acknowiudgud,   l)efi>rc    tlie    ])i'0!icr  ollioer,   the 

commenced.      It   is   not   sullicient  to   tilo   and  iiistnuuent  to  l>e  tlieirs:   F(d)iaii  ti- Co.  v.  6'a//a- 

ublisli  the  certificate  after  liling  tiio  complaint  ha)i,  oJCd.  1.3',).     Names  of  tlic  partners  ought 

ut  before  the  trial:  Bynrn  v.  Uoarrcl,  04  Cal.  i.i  bo  in  full:  liycrx  v.  IJo'irret,  04  Id.  73. 
73.  AUecation  by  plaiuLiaS  that  thsy  sue  in 

Form     of     acknowledsment. — No    par-  their    individual     capacities. — When    th© 

Civ.  Code— 27  417 


E 


S§  2469-2478  OBLIGATIONS.  [Div.  Ill,  Paet  IV, 

plnintiffa  aver  in  their  camplaint  that  they  are  individual  capacities,  and  that  the  allegation  of 

partners,  and  oil  the  trial  a  partnersliip  contract  partnership    was   pure    surplusage:  il/ct'orci  v. 

is  proved,  it  is  not  a  good  answer  to  the  objec-  Seafe,  50  Cal.  202. 

liou   that   )ilaintiCrs    have   not  complied    with  Torts.— Tlie  above  section  does  not  apply  to 

the  provisions  of  section  24G0  above  to  claim  actions  for  torts:  Ralph  v.  Lochwood,  01  Cal. 

that  tlie  aotiou  was  brought  by  them  in  their  155. 

2469.  New  certificate  required  on  change  of  partners. 

Skc.  24G0.  On  every  change  in  the  menibors  of  a  partnership  transacting 
business  in  this  state  under  a  fictitious  name,  or  a  desij^nation  which  does  not 
show  the  names  of  the  persons  interested  as  partners  in  its  business,  except  in 
the  cases  mentioned  in  section  twenty-four  hundred  and  sixty-seven,  a  new 
certificate  must  be  filed  with  the  county  clerk,  and  a  new  publication  made,  as 
required  by  this  article  on  the  formation  of  such  partnership.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  254;  took  effect  July  1,  1874.] 

2470.  Register  of  firms  to  he  kept  by  county  clerk. 

Sec.  2470.  Ever}'  county  clerk  must  keep  a  register  of  the  names  of  firms 
and  persons  mentioned  in  the  certificates  filed  with  him,  pursuant  to  this  article, 
entering'  in  alphabetical  order  the  name  of  every  such  partnership,  and  of  each 
partner  therein.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
254;  took  effect  July  1,  1874.] 

'2.411.    Certified  copies  of  register  and  proof  of  publication  to  be  evidence. 

Sec.  2471.     Copies  of  the  entries  of  a  county  clerk,  as  herein  directed,  when 

•  certified  by  him,  and  afiidavits  of  publication,  as  herein  directed,  made  by  the 
printer,  publisher,  or  chief  clerk  of  a  newspaper,  are  presumptive  evidence  of 

;  Ihe  facts  therein  stated. 

CHAPTER  III. 

SPECIAL  PARTNEPtSHIF. 

^Article    I.     Formation  of  Partnership 2477 

II.     Powers,  IIigiit.^,  and  Duties  of  the  Partners 2489 

III.  Liability  of  Partners 2500 

IV.  Altkkation  ani»  Dissolution  of  the  Partnership  2507 

ARTICLE  I. 

FORMATIOX   OF   PARTNEESHIP. 

2477.  Formation  of  special  partnership. 

Sec.  2477.     A  special  partnership  may  be  formed  by  two  or  more  persons,  in 
the  manner  and  with  the  effect  prescribed  iu  this  chapter,  for  the  transaction  of 
.  any  business  except  banking  or  insurance. 

Special  partnership:  "Stats.  1S70,  123,  says  Cliancellor  Kent,  3  Kent's  Com.  36, 
sec.  1.  'The  purpose  of  the  law  in  permitting  'tlie  first  instance  iu  the  history  of  the  legisla- 
8uch  a  partnership,' says  Mr.  I'arsons,  'is  ob-  tion  of  that  state  in  which  tlie  statute  law  of 
vious.  It  is  to  encourage  and  facilitate  trade  any  other  country  than  Oreat  Britain  has  been 
and  commerce,  and  induce  capitalists  to  em-  closely  imitated  and  adoiited:'"  Coinmission- 
bark  their  capital  therein,  or  a  certain  part  of  ers'  note.  The  example  of  New  York  has 
their  capital,  by  relieving  them  from  tlie  peril  been  followeil  in  Maine,  Massachusetts,  Rhode 
ihangingover  all  partnerships  by  the  common  Island,  Connecticut,  Vermont,  New  Jersey, 
law  merchant  of  losing  not  ojily  all  they  have  Pennsylvania,  Maryland,  Indiana,  Michigan, 
'in  trade,  bat  all  beside.  On  the  continent  of  South  Carolina,  Georgia,  Mississipfii,  Alabama, 
Europe  it  has  long  been  known  and  found  to  be  Florida,  Louisiana,  Illinois,  Virginia,  Ken- 
useful  and  safe:'  Parsons  on  Part.  545.  More  tucky,  Delaware,  Tennessee,  Ohio,  California, 
•  than  forty  years  ago  it  was  permitted  in  New  and  perhaps  other  states. 
York  by  a  statute  copied  substantially  from  Fraud  in  partnership  matters  a  raisde- 
the  French  code  of  commerce.     'This  being,'     meanor:  Pen.  Code,  358. 

2478.  Of  what  to  consist. 

Sec.  2478.  A  special  partnership  may  consist  of  one  or  more  persons  called 
general  partners,  and  one  or  more  persons  called  special  partners. 

413 


3473  (new).  Appointment  of  Agent  and  Service  of  Sum- 
mons. Every  copartnership,  other  than  those  inentioned  in 
section  2467  of  this  code,  domiciled  without  this  state,  and 
having  no  regular  place  of  business  within  this  state,  must, 
within  forty  days  from  the  time  it  commences  to  do  busi- 
ness therein,  file  in  the  office  of  the  secretary  of  state  a 
designation  of  some  person  residing  within  the  state  upon 
whom  process  issued  by  authority  of  or  under  any  law  of 
this  state,  may  be  served.  A  copy  of  sucli  designation,  duly 
certified  by  the  secretary  of  state,  is  sufficient  evidence  of 
such  appointment.  Such  process  may  be  served  on  the 
person  so  designated,  or,  in  the  event  that  no  such  person 
is  designated,  then  on  the  secretary  of  state,  and  the  ser- 
vice is  a  valid  service  on  such  copartnership.  (In  effect 
60  days  from  and  after  April  22,  1909.     Statsf.  1909,  Chap.  696.) 

Civ.  Code,  1909. 


Title  X,  Chap.  III.]  SPECIAL  PARTNERSHIP.  §§  2479-24S2 

2479.  Certified  statement. 

Sec.  2479.  Persous  desirous  of  forming  a  special  partnership  must  severally 
Bign  a  certificate,  stating: 

1.  The  name  under  wliicli  the  partnership  is  to  be  conducted; 

2.  The  general  nature  of  the  business  intended  to  be  transacted; 

3.  The  names  of  all  the  partners  and  their  residences,  specifying  which  are 
general  and  which  are  special  partners; 

4.  The  amount  of  capital  which  each  special  partner  has  contributed  to  the 
common  stock; 

5.  The  periods  at  which  such  partnership  will  begin  and  end. 

"It  woulil  seem  tliat  the  principles  govern-  or  as  some  of  tlie  cases  say  substantially,  com- 
ing the  fuiniation  of  corporatidDS  woukl,  to  a  plied  with:  llairland  v.  Chase,  39  Barh.  28!-i; 
great  extent,  apply,  by  iiualogy,  to  the  forma-  IloUiday  v.  Union  B.  <fr  1^.  Co.,  .3  Col.  .S42; 
tiou.«  of  special  partnerships:  See  note  to  sec.  Vandlke  v.  Rosshram,,  G7  Pa.  St.  .330;  lUnkel  v. 
290:"  Commissioners*  statement.  Jhjiman,  91  111.  90;    Van  lu<jen  v.  Whitman,  G2 

The  statutes  on  the  subject  must  be  strictly,  N.  Y.  513;  Dwrant  v.  Abendrolh,  G9  Id.  MS. 

2480.  Acknowledged  and  recorded. 

Sec.  2480.     Certificates  under  the  last  section  must  be  acknowledged  by  all 

the  partners,  before  some  officer  authorized  to  take  acknowledgment  of  deeds, 

one  to  be  filed  in  the  clerk's  office,  and  the  other  recorded  in  the  office  of  the 

recorder  of  the  county  in  which  the  principal  place  of  business  of  the  partnership 

is  situated,  in  a  book  to  be  kejDt  for  that  pui-pose,  open  to  public  inspection;  and 

if  the  partnership  has  places  of  business  situated  in  difi'erent  counties,  a  copy 

of  the  certificate,  certified  by  the  recorder  in  whose  office  it  is  recorded,  must 

be  filed  in  the  clerk's  office,  and  recorded  in  like  manner  in  the  office  of  the 

recorder  in  every  such  county.      If  any  false  statement  is  made  in  any  such 

certificate,  all  the  persons  interested  in  the  partnership  are  liable,  as  general 

partners,  for  all  the  engagements  thereof. 

False  statements. — In  ^Massachusetts,  New  cate  contains  a  false  statement,  and  the  special 

York,  ami  Pennsylvania,  where   the   statutes  partners  become  liable  as  general  partners:  In 

with    respect  to   special   partnerships   rerjuire  re  Merrill,  12  Blatclif.  2:21;    Van  laijen  y.Wh'd- 

the  contribution  of  the  s[)ecial  partner  to  be  in  man,  02   N.  Y.  513;     llairland   v.   Chase,  39 

cash,  tliecourts  havehelcl,  where  the  certilicate  Barb.  2S3;  Richardson  v.  JJog;/,  38  Pa.  St.  153; 

filed  stated  that  the  special  partner  contributed  Pierce   v.  Bnjant,    5    Alien,    91;    llariifertif  v. 

a  certain  sum  in  cash,  but  he  in  fact  contributes  Foster,  103  Mass.  17;  Vuravt  v.  Abendroth,  09 

goods  ill  part,  or  post-dated  checks,  or  United  N.  Y.  148;  Ma<juire  v.  Lawrence,  13  Jones  & 

States  bonds,  or  promissory  notes,  such  certifi-  S.  2o5. 

2481.  Affidavit  as  to  sums  contributed. 

Sec  2481.     An  affidavit  of  each  of  the  partners  stating  that  the  sums  specified 

in  the  certificate  of  the  pai'tnership  as  having  been  contributed  by  each  of 

the  special  partners  have  been  actually  and  in  good  faith  paid,  in  the  lawful 

monoy  of  the  United  States,  must  be  filed  in  the  same  office  with  the  original 

certificate. 

See  note  sec.  2480,  ante.  a  complaint  in  equity  filed  by  the  trustee,  be 
"Words  of  the  statute. — The  affidavit  need  compelled  to  pay  in  the  deficiency  of  his  capi- 
liot  fo'.low  the  exact  words  of  the  statute  if  it  tal,  to  be  used  in  the  payment  of  the  partner- 
clearly  establishes   the   facts  required   by  the  ship   debts:    Hobinson    v.  Mclntosli,   3   E.   D. 
statute:  Johnson  v.  McDonald,  2  Abb.  Pr.  290.  Smith,  221. 

Amount  recoverable  in  equity \Mien  Filing  ths  certificate  and  afSdavit  twenty- 

the  special  partner  does  not  pay  in  the  amount  eight  days  after  they  vere  executed  could  not 

named  in  the  certificate,  and  the  firm,  having  ali'ect  the  validity  of  the  partnersliip  as  to  those 

become  insolvent,  assigns  the  property  thereof  who  dealt  with  it  after  the  date  of  such  filing: 

for  the  benefit  of  the  creditors,  he  ma^-,  upon  Levy  v.  Lock,  47  How.  Pr.  394. 

2482.  No  partnership  until  compliance. 

Sec.  2482.     No  special  partnership  is  formed  until  the  provisions  of  the  last 
five  sections  are  complied  with. 
See  Parsons  on  Part.  537. 

419 


8§  2483-2491  OBLIGATIONS.  [Dry.  HI,  Paot  TV, 

2483.  Certificate  to  he  published. 

Sec.  2483.  Tbe  certificate  mentioned  in  this  article,  or  a  statement  of  its 
substance,  must  be  published  in  a  newspaper  printed  in  tbe  county  -where  the 
original  certificate  in  filed,  and  if  no  newspaper  is  there  printed,  then  in  a  news- 
paper in  the  state  nearest  thereto.  Such  publication  must  be  made  once  a  week 
for  four  successive  weeks,  beginning  within  one  week  from  the  time  of  filing  the 
certificate.  In  case  such  publication  is  not  so  made,  the  partnership  must  be 
deemed  general. 

Difference  ia   dates. — Where   a   variance  ance  with  the  statute,  the  notice  was  piiblishecl 

between  the  certificate  and  published  iiotice,  ia  in  t  ^o  newspapers,  but  in  one,  by  mistake  of  the 

respect  to  tiie  date  of  conimencenient  of  the  printer,  the  sum   contributed  by   the   special 

partuersliip,  occurs,  in  the  absence  of  fraud  or  partner  appeared  as  five  hundred  thousand  dol- 

iujury   the    special    partners    are    not    liable:  lars,  instead  of  two  hundred  thousand  dollars, 

JJadison   Bavk  v.  Gould,  5  Hill,  302,  and  see  which  latter  was  the  true  sum,  all  were  held 

Boircii  V.  Ari/iil',  '21  Wend.  40G.  liable  as  general  partners:  Algar  v.  Smith,  3 

Typographical  error.— Where,  in   compli-  Denio,  435. 

2484.  Affidavit  of  publication  filed. 

Sec.  2484.  An  affidavit  of  the  making  of  the  publication  mentioned  in  the 
preceding  section,  made  by  the  printer,  publisher,  or  chief  clerk  of  the  uews- 
jDaper  in  which  such  publication  is  made,  may  be  filed  with  the  county  recorder 
with  whom  the  original  certificate  was  filed,  and  is  presumptive  evidence  of  the 
facts  therein  stated. 

2485.  Beueical  ofi .special partnership. 

Sec.  2485.     Every  renewal  or  continuance  of  a  special  partnership  must  be 

certified,  recorded,  verified,  and  published  in  the  same  manner  as  upon  its 

original  formation. 

If  Guch  certificate,  publication,  etc.,  are  Bnmon,  11  How.  Pr.  386;  compare  with  sees, 

omitted,  the  partnership  will  liecouie  a  gen-  2307,  I'ost. 

eral  one:  Oiidion  v.  Pelerson.  7  Weekly  Notes  In  New  York,  removal  of  place  of  busi- 

of  Cases,  2GS;  Andrews  v.  Schott,  10  Pa.  St.  53;  ness  witliout  filing  new  certificate  in   ckrl.'a 

Lar/iaisie  v.    iVarLs,  4  E.   D.  Smith,  G20;  see  office  of  tiie  county  to  which  it  has  been  re- 

also  LVvrs- V,  I'eyjtold.i,  12  Barb.  2SS;  S.  C,  II  moved    renders   special    partnership    general: 

K.  Y.  97;  L<i  C/ioimUe  v.  Thoinax,  5  llob.  (La.)  liq^cr  v.  Popenhauseti,  43  N.  Y.  G8. 
172;  Gray  v.  Gibson,  G  Mich.  300;  Jacijuin  v. 

ARTICLE  II. 

POWERS,  RIGHTS,  AND  DUTIES   OF  THE  PARTNERS, 

2489.  Wio  to  do  business. 

Skc.  2489.     The  general  partners  only  have  authority  to  transact  the  business 
of  a  special  partnership. 
Stats.  1870,  124,  sec.  10. 

2490.  special  partners  viay  advise. 

Sec  2490.  A  special  partner  may  at  all  times  investigate  the  partnership 
affairs,  and  advise  his  partners,  or  their  agents,  as  to  their  management. 

2491.  Jllay  loan  money. 

Si-C.  2491.  A  special  pai'tner  may  lend  money  to  the  partnership,  or  advance 
money  for  it,  and  take  from  it  security  therefor,  and  as  to  such  loans  or  advances 
has  the  same  rights  as  au}'  other  creditor;  but  in  case  of  the  insolvency  of  the 
partnership,  all  other  claims  Avbich  he  may  have  against  it  must  be  j^ostponed 
until  all  other  creditors  are  satisfied. 

The  special  pnrtner  being  a  general  part-  nership  in  the  distribution  of  its  assets:  Jlnyca 
ner  in  another  firm,  if  tlie  limited  purtnursiiip  v.  Ileycr,  35  N.  Y.  .320;  l)ut  the  special  part- 
becomes  insolvent  and  is  indebted  to  tlie  former  ncr's  sliarc  will  be  retained  to  satisfy  the  other 
firm,  this  tlebt  is  to  be  piacinl  upon  the  same  debts  of  the  limited  partnership:  McArthur  v. 
foi>ting  with,  ami  is  not  to  be  postponed  to,  tlie  Cluxse,  13  Uratt.  GS3. 
claims  of  other  creditors  of  said  limiccd  part- 

420 


Title  X.  Chap.  III.]  SPECIAL  PARTNERSHIP.  5§  2492-2501 

52492.    General  partners  may  i^ue  and  be  sued. 

Sec.  2-492.  In  all  matters  relatiug  to  a  special  partnership,  its  general  partners 
may  sue  and  be  sued  alone,  in  the  same  manner  as  if  there  were  no  special 

partners. 

Suits  against  special  yartnersliips.—"  But  taille,  G  La.  An.  6S2;  Parsons  on  Partnersliip, 
if  the  special  iiaitners  have  become  general  55:^:"  Commissioners' note, 
partners  by  some  non-compliance  with  the  re-  Tiiis  limitations  extomls  only  to  actions  re- 
quirements of  'iw,  they  may  be  joined;  and  if  specting  the  business  of  tiie  partnership,  and 
the  planitiff  seeks  to  hold  them  beyond  tlieir  does  not  include  actions  inter  ."■esr,  or  against 
limitutl  lialiility,  he  must  join  them:  Arffami'  tiiird  persons  brought  to  enforce  individual 
Jiavk  V.  TreadwcU,  ?A  Barb.  oGO;  Scku/leii  rights  growing  out  of  the  partnership:  Spald- 
V.  Lord,  4  E.  D.  Smith,  20G;  Baitaille  v.  Bat-  imj  v.  Black,  22  Kan.  55. 

2493.  Withdrawal  of  capital. 

Sec.  2i93.     No  special  partner,  under  any  pretense,  may  withdraw  any  part  of 

the  capital  invested  by  him  in  the  partnership,  during  its  continuance. 

If  a  special  partner  witlidrawsliis  capital  1  La.  Ann.  120;  Dalliey  v.  J/nr/.w,  15  Abb.  Pr. 

in  part,  upon  the  subseipient  insolvency  uf  the  454;  see  also  Berrg  v.  Hfijnold-^,  12  Barb.  288; 

firm    he   is   liable    to    the   creditors    for   such  S.  C,  11  N.  Y.  97; /-a  C/true  v.  J/arii,  4  E.  D. 

amount  and  interest:  La  Ch'nnelte  v.  Thomas,  Smith,  GIO;  but  see  sec.  2495,  post. 

2494.  Interest  and  profits. 

Sec.  2494.  A  special  partner  may  receive  such  lawful  interest  and  such  pro- 
portion of  profits  as  may  be  agreed  upon,  if  not  paid  out  of  the  capital  invested 
in  the  partnership  by  him,  or  by  some  other  special  partner,  and  is  not  bound 
to  refuml  the  same  to  meet  subsequent  losses. 

Dividends  paid  out  of  ths  capital. — The  effect  only  to  require  bim  to  restore,  in  case  the 

receipt,  l<y  tlie  special  partner  of  dividends,  as  capital    shall    thercbv    be    unintentionally     re- 

a  device  to  witliili'aw   capital,  will  render  him  duced:  L  irhuife  v.  Markx,  4  E.  1).  Smith,  GIO; 

liable  as  a  general  partner;  but   the  <lividends  and  see  Bobiitsou  v.  McLilosh,  3  Id.  221. 
may   be  paid   to  him   in   good  faitli,  with  the 

2495.  ResuU  (fwithdraicing  capital. 

Sec.  2495.     If  a  special  partner  withdraws  capital  from  the  firm,  contrary  to 
the  provisions  of  this  article,  he  thereby  becomes  a  general  partner. 
See  sec.  2493,  and  note. 

249G.    Preferential  transfer  void. 

Sec.  249G.  Every  transfer  of  the  property  of  a  special  partnership,  or  of  a 
partner  therein,  made  after  or  in  contemplation  of  the  insolvency  of  such  part- 
nership or  partner,  with  intent  to  give  a  preference  to  any  creditor  of  such  part- 
nership or  partner  over  any  other  creditor  of  such  partnership,  is  void  against 
the  creditors  thereof;  and  every  judgment  confessed,  lien  created,  or  security 
given,  in  like  manner  and  with  the  like  intent,  is  in  like  manner  void. 

Obtaining  preference. —Until  an  order  is  may  tiius  obtain  a  preference:    Van  Alsli/ne  v. 

made  tor   the  appoiuLinent  of  a  receiver,  tiie  Cook,  25  N.  Y.  489. 

property  of  an  insolvent  liniiteil  partnership  is         Morlijaiji'  maile   to  give   jireference  is  void: 

liable  to  tiie  execution  of  a  crediior  recoveiing  Geonje  v.  Grant,  20  lluu,  372. 
judgment  other wibc  than  by  confession,  and  he 

ARTICLE  III. 

LIABILriY   OF    PAUTNERS. 

2500.  Liability  of  partners. 

Sec  2500.     The  general  partners  in  a  special  partnership  are  liable  to  the 

same  extent  as  partners  in  a  general  partnership. 

2501.  Of  special  partners. 

Sec  2501,  The  contr.bution  of  a  special  partner  to  the  capital  of  the  firm, 
and  the  increase  thereof,  is  liable  for  its  debts,  but  he  is  not  otherwise  liable 
therefor,  except  as  follows: 

421 


S§  2502-2507  OBLIGATIONS.  [Dnr.  III.  Part  VI, 

1.  If  be  has  -willfully  made  or  permitted  a  false  or  materially  defective  state- 
ment in  tlie  certificate  of  the  partnership,  the  affidavit  filed  therewith,  or  the 
published  announcement  thereof,  he  is  liable,  as  a  general  partner,  to  all  cred- 
itors of  the  firm; 

2.  If  he  has  willfully  interfered  with  the  business  of  the  firm,  except  as  per- 
mitted in  Article  II,  of  this  chapter,  he  is  liable  in  like  manner;  or, 

3.  If  he  has  willfull}'  joined  iu  or  assented  to  an  act  contrary  to  any  of  the 
provisions  of  Article  II.  of  this  chapter,  he  is  liable  in  like  manner, 

Subd.    1.      Falss    certifiDate:     See    sees,  of  New  York:  Kin;/  v.  S  irria,   14  N.  Y.  167; 

2480,  (tv/p,  note,  ami  24S2,  uiif'\  note.  S.  C,  60  Id.  24;  and  Barrows  v.  Downs,  i)  R.  I, 

Subds.  2,  3.     Us3  of  nama.— If  the  spe-  146. 
cial   jjartner   represents   liiniself  as  a  general         Sfaiute    exceptional. —  Special    partners    are 

partner,  or  even  allows  his  name  to  be  used  in  general    partners,    except    as   to    tliose    points 

contracting,  he  will  be  held  liable  as  a  general  wherein  their  liability  is  expressly  limited  by 

partner:  Darroics  v.  Downs,  8  li.  I.  140;  Madi-  the  statute:    Hayes  v.    Bnnent,   3  Samlf.    3'J7; 

son  Co.  Bank  v,   Yonld,  5  Hill,  309;  Jonaw  v,  Ltrha'ise  v.  Marh-i,  4  E.  D.  Smith,  610;  Jlo'jg  v, 

Blawhnrd,  2  Rob.  (La.)  513.  ElVs,  8  How.  Pr.  473. 

Special   partner's  liability   generally. —        Lia'ulitij  ah  initio. — A  special  partner  buy- 

Coiijlict  of  law's. — A  special  partner  in  a  firm  in  ing  out  an  entire  firm  property  and  ooniiniiiiig 

Cuba,  who  has  complied  with  the  laws  of  Spain  the  business  in  his  own  name  and  for  his  own 

relating  to  special  partnerships,  is  exempt  from  beuefifc  renders  himself  liable  as  a  general  pirt- 

liability,  as  a  general  partner,  in  transactions  ner  from  the  commencement  of  the  partnership: 

of  the  firm  in  Cuba  with  citizens  of  the  state  First  Xat.  Bank  v,  Whilneij,  4  Laus.  34. 

2502.  Liab'dihj  for  unintentional  act. 

Sec.  2502.     When  a  special  partner  has  unintentionally  done  any  of  the  acts 

mentioned  in  the  last  section,  he  is  liable  as  a  general  partner,  to  any  creditor 

of  the  firm  who  has  been  actually  misled  thereby  to  his  prejudice. 

Bowen  v.  An/all,  24  Wend.  501;  Madison  Bank  v.  Gould,  5  Hiil,  309;  Smith  v,  ArgaU,  3 
Deuio,  435. 

2503.  WJio  mny  question  existence  of  special  partnersliip. 

Sec.  2503.  One  who,  upon  making  a  contract  with  a  partnership,  accepts 
from  or  gives  to  it  a  written  memorandum  of  the  contract,  stating  that  the 
partnership  is  special,  and  giving  the  names  of  the  special  partners,  cannot 
afterwards  charge  the  persons  thus  named  as  general  partners  upon  that  con- 
tract, by  reason  of  an  error  or  defect  in  the  proceedings  for  the  creation  of  the 
special  partnership,  prior  to  the  acceptance  of  the  memorandum,  if  an  efi'ort 
has  been  made  by  the  partners,  in  good  faith,  to  form  a  special  partnership  ia 
the  manner  required  by  Article  I.  of  this  chapter. 

"Stats.    1870,    \27t,    sec.    21.     This    provis  carefully  worded,   so  as    to   exclude  cases  of 

ion  is  intended  to  put  special  partnerships,  in  fiaud,  etc.,  and  not  to  deprive  the  creditor  of 

this  respect,  upon  the  same  footing  with  cor-  the  benefit  of  any  irregularity  subsec|Uent  to 

poratious.      The   language   of    the    section   is  his  contract: "  Commissioners' note. 

ARTICLE  IV. 

ALTERATION    AND    DISSOLUTION. 

"Stats.   1870,    125.       This    entire    chajjter  guage,  and  divided    into  articles:"    Commis* 

was  adopted  in  1870,  by  ojir  lei^islatiire,  from  sioners'  note, 

the  New  York  Civil  Code,  vol.  2,  title  10,  [)p.  See  sec.  2485,  ante,  and  note. 
381-404,  and  has  only  been  changed  iu  luu- 

2507.    When  special  partnership  becomes  general. 

Sec  2507.  A  special  partnei'ship  becomes  general,  if  withiii  ten  days  after 
any  partner  withdraws  from  it,  or  any  new  partner  is  received  into  it,  or  a 
change  is  made  in  the  nature  of  its  business  or  in  its  name,  a  certificate  of  such 
fact,  duly  verified  and  signed  by  one  or  more  of  the  partners,  is  not  filed  with 
the  county  clerk  and  recorder  with  whom  the  original  certificate  of  the  partner- 
ship was  filed,  and  notice  thereof  published  as  is  provided  iu  Article  I.  of  this 
chapter  for  the  ijublication  of  the  certificate. 

422 


Title  X,  Chap.  IV.]  mXIXG  PAPvTXERSHlPS.  §§  2508-2ol2 

2508.    How  new  special  partners  may  he  admitted. 

Sec.  2o08.  New  special  partners  may  be  admitted  into  a  special  partnership 
upon  a  certificate,  stating  the  names,  residences,  and  contributions  to  the  com- 
mon stock  of  each  of  such  partners,  signed  by  each  of  them,  and  by  the  general 
partners,  verified,  acknowledged,  or  proved,  according  to  the  provisions  of 
Article  I.  of  this  chapter,  and  filed  with  the  county  clerk  and  recorder  with 
whom  the  original  certificate  of  the  partnership  was  filed. 

25C9.    Dixsoludon  of  special  partnership. 

Sec.  2509.  A  special  partnership  is  subject  to  dissolution  in  the  same  manner 
as  a  general  partnership,  except  that  no  dissolution,  by  the  act  of  the  partners, 
is  complete  uutil  a  notice  thereof  has  been  filed  and  recorded  in  the  ofSceof  the 
county  clerk  and  recorder  with  whom  the  original  certificate  was  recorded,  and 
published  once  in  each  week,  for  four  successive  weeks,  in  a  newspaper  printed 
in  each  county  where  the  partnership  has  a  place  of  business. 

Dissolution  is  not  complete  until  the  com-  Pubiicatioii  on  tile  same  day. — Tiie  words 
pletioii  Ijothor  thefiliiii^amlrccordingjaudof  tlie  of  the  statute  (N.  Y.)  were,  to  be  "published 
publication:  Fans/uace  v.  Lane,  16  Abb.  Pr.  71.     once  in  each  week,  fur  four  weeks;"  lield,  the 

The  certificate  of  dissolution  must  comply  day  of  the  week  which  is  taken  for  the  first 
with  the  statute  or  such  partnership  will  cou-  publication  must  be  taken  for  each  of  the  sub- 
tinne:  In  re  Terry,  u  Biss.  110.  sequent   publications:    lie  Kiwj,   5  Ben.   453; 

Dissolution  of  general  partnership:  See    7  Bank.  Reg.  279. 
sees.  24.j0,  aide,  et  seq. 

2510.  The  name  of  a  special  partner  not  used,  unless. 

Sec.  2510.  The  name  of  a  special  partner  must  not  be  used  in  the  firm  namo 
of  partnership  unless  it  be  accompanied  with  the  word  "  limited." 

CHAPTER  IV. 

MINING  PARTNERSHIPS. 

2511.  When  a  mining  partnership  exists. 

Sec.  2511.  A  mining  partnership  exists  when  two  or  more  persons  who  own 
or  acquire  a  mining  claim  for  the  purpose  of  working  it  and  extracting  tho 
mineral  therefrom  actually  engage  in  working  the  same. 

Mining  partnerships. — The  ground  upon  Denver,  35  Cal.  3G9;  Bradley  v.  Harhiess,  26 
which  the  distinciion  between  the  rights  and     Id.  77. 

liabilities  of  mining  partners  and  those  of  "Working  the  mine. — Being  actually  en- 
general  partners  rests  is  that  in  mining  part-  gaged  in  working  the  mine  is  essential,  other- 
nerships  there  is  no  delectus  j^ersoncE.  There-  wise  the  owners  of  tlio  mine  are  simply  tenants 
fore  there  is  no  dissolution  at  the  will  of  in  common:  DoiKjherty  v.  Creanj,  30  Cal.  290; 
one  of  the  partners:  Jones  v.  Clark,  42  Cal.  Settembre  v.  Piitmivi,  30  Id.  490;  Ilender-^on  v. 
181;  Derkf-r  v.  Howell,  Id.  G3G;  sec.  231G,  ^//^?t,  23  Id.  510;  and  see  Z^mt/^Mr?/ v. /;an?cs, 
pod ;    water-ditch     companies:    McConntl    v.     19  Id.  120;  Sklllmaa  v.  Lachman,  23  Cal.  198. 

2512.  Express  agreement  not  necessary  to  constitute. 

Sec.  2512.  An  express  agreement  to  become  partners  or  to  share  the  profits 
and  losses  of  mining  is  not  necessaiy  to  the  formation  or  existence  of  a  mining 
partnership.  The  relation  arises  from  the  ownership  of  shares  or  interest  in  the 
mine,  and  working  the  same  for  the  purpose  of  extracting  the  minerals  there- 
from. 

Contract  of  strict  partnership There  is    ing  partnerships  are  governed  by  the  law  of 

nothing  ill  the  nature  of  mining  which  forbids     ordinary  copartnerships,  exce[)t  so  far  as  tho  • 
contracts  of  strict  partnership;  and  when  it     general  usage  of  persons  engaged  in  similar  pur- 
appears  that  tlie  coni?dential  relations  of  ordi-     suits,  or  tiie  established  practice  of  the  par- 
nary  partnersliips  are  established,  and  that  the     tioular   company,   lias  established   a   different, 
firm  is  not  subject  to  the  intrusion  of  other     rule,   the   only   differences  generally   existing, 
partnei-s  at  will,  the  reason  of  tlie  rule  fails,     being  such  as  flow  from  the  fact  tliat  in  such 
and  with  the  reason  the  rule  itself:  Decker  v.     partnerships  there  is  no  cWrc<Ms;>cr.sou«.-  Jo7iea- 
Uoirell,  42  Cal.  036.  v.  Clark,  42  Cal.  481 ;  Taylor  v.  CcUle,  Id.  369; : 

No  partnership  articles. — In  this  case  rain-     and  see  Duryea  v.  Burt,  28  Id.  509. 

423 


§3  2513-2:.19  OBLIGATIONS.  [Div.  Ill,  Tart  IV, 

2513.  Profits  and  Idshcs,  Jiow  shared. 

Stc.  2513.     A  member  of  a  miuiug  partnership  shares  in  the  profits  and 

losses  thereof  in  the  proportion  which  the  interest  or  share  he  owns  in  the  mine 

bears  to  the  whole  partnership  capital  or  whole  number  of  shares. 

Sliaring  proSts  and  losses  equally  t.-iuls     ship:  De'-kcr  v.  l/oivll,  42  Cal.  G30;  see  Dur- 
to  i)i'{>\  e  liiu  exist. 'lice  of  nil  ordinary  paruicr-     t/f.a  v.  Hurt,  26  Id.  oUt). 
Bhi[i,  as  di^itiuyuisiied  from  a  miuiug  partuer- 

2514.  Lien  of  partners. 

'oi.c.  2514.  Each  member  of  a  mining-  partnership  has  a  lien  on  the  partner- 
ship property  for  the  debts  due  the  creditors  thereof,  and  for  money  advanced 
by  him  for  its  use.  This  lien  exists,  notwithcitandiug  there  is  au  agreement 
amouy  the  partners  that  it  must  not. 

Corresponding  sections  as  to  general  partnars:  See  sees.  2405,  2412,  ante.;  see  also  sees. 
2ol7,  -oiS,  pObt. 

2515.  Mine,  partnership  propertij. 

Sec.  2515.  The  mining  ground  owned  and  worked  by  partners  in  mining, 
whether  purchased  with  partnership  funds  or  not,  is  partnership  property. 

rvCiiios  brought  into  the  coaoeni  by  iudi-  ment  of  the  partiiersliip  afT.iirs,  to  bo  treated 
vidual  members  as  a  portion  of  the  ca;)ital  as  pariiiersliip  property:  JJarjca  v.  Burt,  28 
Ktock  are  iu  ciiuity,  for  the  purpose  of  a  settle-     CaL  JoO. 

2513.    Partnership  not  dissolved  by  sate  of  interest. 

Sec.  251G.  One  of  the  partners  in  a  mining  partnership  may  convey  liis 
interest  iu  the  mine  and  business  without  dissolving  the  partnership.  Tlie 
purchaser,  from  the  date  of  his  purchase,  becomes  a  member  of  the  partner- 
ship. 

Sale  of  partnership  interest  does  not  dis-        No  dissolution  results  from  th3  denth  of 
solve  ininiug  partnership:    Taylor  v.  Cii-^t!c,  42     a  partner:  Jones  v.  dark,  42  Cixl.  ISl;  sec  note, 
Cal.  3{M);  JJitn/fu  v.  Burt,  26  id.  oGD;  SkUhncm     sec.  2511,  (uite. 
V.  Larhuiaii,  23  Id.  19S.  See  principle  in  the  above  section  declare.l  in 

Terminatioaof  partnership  generally:  See  KU'uiiaa  v.  Larhman.  23  Cal.  I'JS;  Duriji'a  v. 
sees.  214'J  et  seq.  Burt,  28  Id.  oGd;  Ukh  v.  JJains,  0  Id.  l(i;J. 

2517.  Purchaser  takes  subject  to  liens,  ttnless,  etc. 

Sec.  2517.  A  purchaser  of  an  interest  in  the  mining  ground  of  a  mining 
partnership  takes  it  subject  to  the  liens  existing  in  favor  of  the  partnei's  for 
debts  due  all  creditors  thereof,  or  advances  made  for  the  benefit  of  the  partner- 
ship, unless  he  purchased  iu  good  faith,  for  a  valuable  consideration,  without 
notice  of  such  lien. 

2518.  Takes  with  notice  of  lien,  when. 

Sec.  2518.  A  purchaser  of  the  interest  of  a  partner  in  a  mine  when  the 
partnership  is  engaged  in  working  it  takes  the  notice  of  all  liens  resulting 
from  the  relation  of  the  partners  to  each  other  and  to  the  creditors  of  tlie 
partnership. 

Nevr  partners  liable  for  old  debts:  Jones  v.  Clark,  42  Cj.1.  181. 

2519.  Contract  in  lorilinrj,  lohen  binding. 

Sec  2519.  No  member  of  a  mining  partnership  or  other  agent  or  manager 
thereof  can,  by  a  contract  in  writing,  bind  the  partnership,  except  by  express 
authority  derived  from  the  members  thereof. 

Strict  partnership. — When  partners  in  the  mininr^  partnership,  excent  upon  sncli  contracts 

miniii;^   business  enter   int  >  a;i   agreement  of  as  are   u.sual   an  1   necessary    in    tlie   oriliuary 

btrict  or  ordinary  partnership,  one  may  hind  prosecution  of  the  worl;,   nn^.esss  spocially   au- 

|!ie   other   liy  a   promissory  note:    Decker   v.  tiiorized:  Jones  v.  Clark,  42  Cal.  I  SI,  and  see 

lloici-ll,  42  Cal.  G3l3.  Tai/'or  v.  Ca>itlf,  42  Id.  3G3;  SkiUniua  v.  Lcich- 

Managing  superintendent  cannot  bind  a  juaa,  23  Id.  198. 

424 


Title  XI,  Ciiap.  I.] 


INSURANCE  IX  GENERAL. 


§1  2520-2532 


2520.    Owners  of  majority  of  sharrs  fjovrrn. 

Sec.  2320.     The  decision  of  the  meuibcrs  owning''  a  majority  of  the  shares  or 
interests  in  a  mining  partner.shii)  bindn  it  in  the  conduct  of  its  business. 

Majority  of  members  iu  geueral  i;artuoislilps:  Sue.  2428,  ante,  and  uote. 


TITLE  XL 

INSURANCE. 

Chapter  I.  Insurance  in  General 2527 

II.  Marine  Insurance 2Go5 

III.  FiKE  Insurance 2752 

IV.  Life  and  Health  Insurance 27G2 

CHAPTER  I. 

INSURANCE  IN  GENERAL. 

Aeticle  I.    Df.ftnition  of  Insprance 2527 

II.     "What  may  be  In.suked 0,331 

III.  Pakties 2o38 

IV.  Insikable  Interest 2.346 

V.     Concealment  and  Representation 2561 

VI.  The  Policy 2586 

VII.  Warranties 2G03 

VIII.  Prejiiums 2616 

IX.  Loss 2626 

X.  N<  )TicE  OF  Loss 2G."};J 

XI.  DtX'BLE  Insurance 2641 

XII.  Reinsurance • 2646 

ARTICLE  I. 

definition  of  insurance. 
2527.    Tn^uraiice,  what. 

Si:c.  2527.  Insurance  is  a  contract  whereby  one  undertakes  to  indemnify 
another  against  loss,  damage,  or  liability,  arising  from  an  unknown  or  contin- 
gent event. 

Iiisurauoe  defined. — The  above  definition.  Insurance  commissioner,  office  and  duty 

emhruciiig    all    the  classes  of  iasui-iuico    iiioii-  of:    PmI.  Cude.  sees.  504  ct  si  q. 

tioned,  plainly  iiKiUes  insurance  on  life,  as  well  Destruotiou   of  insured  property:    Pen. 

as  other  kinds  <if  insurance,  a  contract  of  in-  Co'le,  si-c  548. 

deninity.     In  harmony  with  tliis  vii.\v,  sec /'((.sfi  Interpretation  of  contract:  See  sec.  2586 

V.   Mat.    n<-uij!l  Iii.-<.   Co.,  23  N.   Y.  516;    and  in  note. 

May  ou  lus.,  sec.  7.  Insurance  corporations:  See  sees.  414  etseq. 

ARTICLE  II. 

•miAT    HAY    BE    INSURED. 

2531.  W]ial  ovp.nts  may  he  iiv^ur  d  ayniiist. 

Sec  25.'51.  Any  contingent  or  unknown  event,  whether  past  or  future,  "wliich 
may  damnify  a  person  having  an  insurable  interest,  or  create  a  liability  against 
Liui,  may  be;  insured  against,  subject  to  the  provisions  of  this  chapter. 

Insurable  i:.t3rest:  See  sees.  2546,  jio.s(,  et  v.  L'obhixon,  108  U.  S.  537;  Senmin  F.  d;  M. 
Beq.  Co.  V.  Kcnhirhj  M.  .6  F.  Co.,  7  Rush,  81;  Uam- 

Past  losses  may  be  insured  against:  Hooper     mond  v.  Allen,  2  Suniu.  3l)6. 

2532.  Tiisii ranee  of  lottery  or  lollenj  prize  unauthorized. 

Sec.  25.32.  The  preceding  section  does  not  authorize  an  insurance  for  or 
against  tho  drawing  of  any  lotteiy,  or  for  or  against  any  chance  or  ticket  in  a 
lotlery  di  awing  a  prize. 

Lotteries  prohibited:  Pen.  Code,  sees.  324  et  seq. 

425 


§§  2533-2541 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


2533.    Uxual  kinds  of  insurance. 

Skc.  2533.     The  most  usual  kinds  of  insurance  are: 

1.  Mariue  insurance; 

2.  Fire  insurance: 

3.  Life  insui-ance; 

4.  Health  insurance;  and, 

5.  Accident  insurance. 

Marine  insurance:  See  post,  sees.  2655  et 


Becj. 

Firs  ins'iranse:  See  poxt,  sees.  2752  et  seq. 
Life  and  healtli  iusurauce:  See  pod,  sees. 

2702  et  t^C.l. 

"See  title  2,  part  4,  division  1,  of  this  code. 


ante.  Ilealtli  and  accident  insurance  are  au- 
thorized by  the  law,  and  are  governed  liy  thid 
chapter,  as  also  insurance  of  the  lives  of  animals, 
companies  being  authorized  to  be  tornicil  tliere- 
for  by  section  286,  subdivision  2,  ante: "  Com- 
niissiouera'  note. 


2534.    All  subject  to  thvi  chaptp-r. 

Sec  2534.     All  kinds  of  insurance  are  subject  to  the  provisions  of  this  chapter. 

"And  are  also  subject  to  the  provisions  of  men t  of  the  state,' 'Political  Code,'  'insurance 
article  16,  chapter  3,  part  3,  'of  the  govern-     commissioner':"  Commissioners' note. 

ARTICLE    III. 

PARTIES   TO    THE    CONTRACT. 

2533.    Designation  of  parties. 

Sec.  2538.  The  person  who  undertakes  to  indemnify  another  by  a  contract 
of  insurance  is  called  the  insurer,  and  the  person  indemnified  is  called  the 
insured. 

Designation  of  parties. — The  code  com- 
missioners give  the  following  reason  lor  their 
choice  of  "insurer"  as  distinguished  from 
"  underwriter: "  "As  underwriting  is  not  prac- 
ticed in  this  state,  the  term  '  underwriter '  is 
not  used  in  this  code."  The  distinction  which 
some  writers  and  courts  seek  to  make  between 
assured  and  insurer,  the  one  whose  life  forms 
the  risk,  the  other  for  whose  benefit  is  the  con- 


Commissioner':"    Oomniissiouers' 


tract,  is  not  observed  in  the  code.  In  their 
note  to  section  2540,  the  code  commissioners 
say  that  "assurer"  and  "insurer,"  "assured" 
and  "  insured,"  are  used  iuditTerently  by  text- 
writers. 

Insurance  agents. — Their  powers  limited  by 
the  i)olicy:  Shuii(jarl  v.  LycomiiKj  Fire  Ins.  Co., 
55  Cal.  408;  see  also  two  articles  in  5  Southern 
L.  llev.  G63,  and  6  Id.  367,  on  this  topic. 

2539.  Who  viay  insure. 

Sec.  2539.  Any  one  capable  of  making  a  contract  may  be  an  insurer,  subject 
to  the  restrictions  imposed  by  special  statutes  upon  foreign  corporations,  non- 
residents, and  others. 

"  The  restrictions  alluded  to  are  found  in     code,  ante,  under  the  titles  '  Corporations  '  and 
the  references   made  in    the   notes  to  sections     'Insurance 
2533  and  25;i4  in  the  Political  Code,  and  this     note. 

2540.  TI7to  may  be  insured. 
Sec  2540.     Any  one  except  a  public 
Publi3  enemy  not  insurable. — The  rule  is 

based  on  the  general  prohibition  against  con- 
tracts wi^h  an  alien  enemy:  Kersluvr^.  Kctsry, 
100  Mass.  572;  The  Rapid,  8  Cranch,  155; 
Prize  Canso^,  -j  Dlack,  035,  07 1-674. 

"War  subsequent  to  making  of  contract. — 
Some  courts  hold,  where  war  between  the  coun- 
tries in  wliicli  the  contracting  parties  reside  en- 
sues after  the  contract  has  boen  entered  into, 
whereby  premiums  are  not  paid  during  the 
continuance  of  liostilities,  that  the  contract  of 
issuance  is  not  dissolved  by  tlie  war,  tliat  the 
policy  is  not  forfeited  for  the  non-payment  of 
the  premium,  and  that  the  tender  after  the 
war  of  the  unpaid  premiums  and  interest  re- 


enemy  may  be  insured. 

vives  the  ]iolicy:  Cohen  v.  N.  Y.  M.  Tns.  Co.,  .TO 
N.  Y.  GIO;  Sand.^  v.  N.  Y.  L.  Ins.  Co.,  50  Id. 
023.  On  the  contrary,  as  to  the  last  point,  are 
WorthnKjlon.  v.  Charter  Oak  lux.  Co.,  41  Conn. 
372;  D'dlard  v.  Manhattan  L.  Ins.  Co.,  44  Ga. 
119;  see  also  X.  Y.  S.  Ins.  Co.  v.  Sfa/ham,  1)3 
U.  S.  24,  where  non-payment  (jf  premiums 
during  t'.ie  continuance  of  hostdities  was  held 
to  dissolve  the  contract,  it  being  so  stipidated; 
but  the  insured  was  entitled  to  receive  the 
equitable  value  of  tlie  policy  arising  from  the 
premiums  already  paid. 

See  also  considerations  of  this  subject  in  3 
Sont'.iern  Law  Keview,  387,  and  11  American 
Law  lleview,  221. 

2541.    Assignment  to  mortgagee  of  thing  insured. 

Sec  2541.     Where  a  mortgagor  of  property  efiects  insurance  in  his  own  name, 
providing  that  the  loss  shall  be  payable  to  the  mortgagee,  or  assigns  a  policy 

426 


3541.  Assignment  to  Mortgagee  of  Thing  Insured.  [Unless 
the  policy  otherwise  provides],  where  a  mortgagor  of  prop- 
erty effects  insurance  in  his  own  name  providing  that  the 
loss  shall  be  payable  to  the  mortgagee  or  assigns  a  policy 
of  insurance  to  a  mortgagee,  the  insurance  is  deemed  to 
be  upon  the  interest  of  the  mortgagor,  who  does  not  cease 
to  be  a  party  to  the  original  contract,  and  any  act  of  his, 
[prior  to  the  loss],  which  would  otherwise  avoid  the  insur- 
ance will  have  the  same  effect,  although  the  property  is  in 
the  hands  of  the  mortgagee,  but  any  act  which,  under  the 
contract  of  insurance,  is  to  be  performed  by  the  mortgagor, 
may  be  performed  by  the  mortgagee  therein  named,  with 
the  same  effect  as  if  it  had  been  performed  by  the  mort- 
gagor. (In  effect  from  and  after  April  15,  1909.  Stats.  1909, 
Chap.   603.)  Civ.   Code,    1909.' 


Title  XI,  Chap.  I.] 


INSUnAXCE  IN  GENERAL 


§§  2542-2546 


of  insurance  to  tlie  mortgfag'ee,  the  insurance  is  deemed  to  be  upon  the  interest 
of  the  mortgagor,  who  does  not  cease  to  be  a  part}'  to  the  original  contract,  and 
any  act  of  his  which  would  otherwise  avoid  the  insurance  will  have  the  same 
effect,  although  the  property  is  in  the  hands  of  the  mortgagee. 


Insuring  to  protect  mortgagee. — Wlieie 

the  mortgagor  is  a  party  to  the  contract  of  in- 
surance, either  by  making  it  payable  to  tlie 
mortgagee  or  by  tiiking  it  in  his  own  name  and 
assigning  to  tlio  latter,  the  mortgagee  takes  the 


Tiiat  it  may  be  regulated  by  stipulation,  see 
S/,ri>H/j!dd  F.  <L-  M.  I  us.  a>.  v.  ^I//e//,43N.  Y. 
3SD;  l'o.sf>-r  v.   Van  LWil,  70  Li.  20. 

Subrogation  generally. — As  a  general  rule, 
it  has  Ijc.en  laid  down  in  numerous  cases  that 


policy  subject  to  the  defenses  whicii    cati    be    after  payment  of  a  loss  the  insurer  is  entitled 


made  agaiuct  tlie  mortgagor  for  breach  of  the 
conditions  of  tiie  contract:  Fru/iLUii  Savings  ///s. 
V.  Central  /jis.  Co.,  Ill)  iMass.  240;  Fo;/:/  v. 
Mii!(l!e.sex  /«-s.  Co.,  10  Cush.  337;  Grofvenor  v. 
Atlani.c  Ins.  Co.,  17  N'.  Y.  3Li2;  Bufihlo  S.  E. 
Works  V.  Sun  M.  Ins.  Co.,  17  Id.  401;  SjjriiK/- 
Jidd  F.  <t  M.  I.  Co.  V.  Alien,  43  Id.  3S9. 

Where  a  polic}'  is  made  for  the  benefit  of  a 
third  person,  tlie  latter  may  sue  thereon  in  his 
own  name:  Ller'j''.'<c>i  v.  Builders'  Ins.  Co.,  3S 
Cal.  514;  <  'one  v.  Xvujara  F.  Ins.  Co.,  CO  N.  Y. 
019;  Frink  V.  Ilamixlcn,  31  How.  Pr.  30;  see 
also,  for  discussi.ju  of  this  question,  8  las.  L. 
J,  122,  ill  note. 

Subrogation  to  mortgagee's  rights. — That 
the  insuier  w  lio  pays  a  loss  to  the  insuring 
mortgagee  is  not  entitled  to  be  subrogated  to 
bis  rights  as  agabist  the  mortgagor  in  the  ab- 
sence of  a  stipulation  therefor,  .'?ee  Dirk  v. 
Frunllin  F.  Ji:s.  Co.,  10  lus.  L.  J.  4CS;  A'<r- 
norlmn  v.  JV^.  Y.  iJoivcry  F.  Ins.  Co.,  17  N.  Y. 
428;  CouK  v.  Niagara  lire  Ins.  Co.,  CO  Id.  C19, 

2542.    Nnv  contract  between  insurer  and  assignee. 

Sec.  2542.  If  an  insurer  assents  to  the  transfer  of  an  insurance  from  a  mort- 
gagor to  a  mortgagee,  and  at  the  time  of  his  assent  imposes  further  obligations 
on  the  assignee,  making  a  new  contract  with  him,  the  acts  of  the  mortgagor 
cannot  affect  his  rights. 


to  be  subrogated  to  the  rights  of  tlie  insured 
against  thiril  persons  to  reimburse  liiuiself  for 
such  loss:  uFtna  F.  I.  Co.  v.  Tijlcr,  30  Am.  Dec. 
90;  Mcraintde  Lis.  Calebs,  20  N.  Y.  17(5; 
Sprin<jtietd  F.  M.  Co.  v.  Allen,  43  Id.  393; 
J/onore  V.  Lamo.i  F.  Ins.  Co.,  50  111.  414;  Cat- 
lali'tn  V.  Litlucum,  43  Md.  1 10;  see  the  various 
jihaGes  of  this  question  considered  iu  Wood  oa 
Fire  Ins.,  sec.  4 JO  et  seq. 

Payment  oi  insurance  by  mortgagee. 
Where  the  mortgage  provides  that  on  elefault 
of  the  mortgagor  to  keep  the  property  insured 
the  mortgagee  may  insure  at  the  mortgagor's 
ex[iense  and  hold  the  property  as  security,  ha 
cannot  recover  the  amount  ]^aid  for  insurance 
after  the  commencement  of  foreclosure  jiroceed- 
iiigs,  there  being  no  supjlemental  complaint 
filed,  and  the  complaint  not  containing  allega- 
tions of  non-payment  of  insurance  by  mortgagor 
and  jiayment  of  same  by  mortgagee;  ll'asfiburn 
V.   \yilkinson,  59  Cal.  538. 


Imposing  new  terms. — "It  is  a  frequent 
provision  (in  a  policy)  that  in  case  of  the  assign- 
ment of  the  policy  without  the  consent  of  the 
insurer  it  shall  be  v.iiil:  1  Phillipjs  on  Ins., 
subscc.  47.  An  alteration  in  the  contract 
is  usually  made  by  indorsement  on  the  policy, 
signed  by  the  insurers.  A  contract  varying 
the  policy  is  as  Folenin  an  act  as  the  contract 
of  insurance  itself,  and  so  is  its  cancellation, 
whether  it  be  by  iiidoisement  or  by  a  separate 
instrument:   Id.  109  et  seq.     The  provision  of 


the  text  follows  the  general  rule  governing  the 
alteration  of  the  policy,  as  laid  down  immedi- 
ately supra,  which  extends  to  the  imposition 
of  further  obligations,  anil  is  bat  another  name 
for  alteration  of  the  contract:  "  From  commis- 
sioners' note. 

See  Foster  v.  Equitahle  M.  F.  J.  Co.,  1  Gray, 
21C,  from  which  may  be  learned,  possibly,  the 
meaning  of  the  new  contract  provided  for  ia 
the  above  section. 


ARTICLE  IV. 

INSURABLE    INTEREST. 

2546.   InRurahle  interest,  ivhat. 

Sec.  254G.  Every  interest  in  property,  or  any  relation  thereto,  or  linl  ility  in 
respect  thereof,  of  such  a  nature  that  a  contemplated  j)eril  might  directly  dam- 
nify the  insured,  is  an  insurable  interest. 

Insurable  interest.— The  code  consistently  sees.  \'Jrt,  342,  340;  Flanders  on  Ins.  .342:  Wood 
deliiies  insurable  interest  on  its  theory  that  in-     on  Fi.e  Ins.,  sees.  218  et  scip  ;   L'zarus  v.  Coin. 


Burance  is  a  contract  of  indemnity.  As  a  gen- 
eral proposition,  he  has  an  insurable  interest  in 
property  who  derives  a  benefit  from  its  exi^t 
euce  and  would  siifl'er  damage  from  its  de- 
struction. This  idea  is  adopted  and  variously 
expressed  in  WiUianis  v.  Roger  WiUianis  Ins. 
Co.,  107  Mass.  377;  S/yringJield  /n.<.  Co.  v. 
Brown,  43  N.  Y.  389;  Merrett  v.  Farriers'  Ins. 
Co.,  42  Iowa,  13;  see  also  1  Phillips  on  Ins.. 


///.S-.  Co.,  19  Pick.  81;  2  Am.  Lead.  Cas.  SOG. 

Blortgagor  and  mor'gigea. — The  mort- 
gager has  an  insurable  iuleiest  continuing  a3 
hmg  a^  the  right  to  redeem  lasts:  Strong  v. 
I\/anvfitelurer.'i'  his.  Co.,  "20  Am.  Dec.  507; 
Merhlrr  v.  /'hcenix  /ns.  Co.,  33  Wis.  GC);  Walsh 
V.  /'hiludet/)h/a  Fire  As.'i'n,   127  Mass.  383. 

The  mortgagee  has  an  insura'dc  interest  to 
the  aaiouut  of  his  debt:   Traders'  lus.  Co.   V. 


427 


S§  2517-'25:.0 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


Jiobert.  9  Wend.  404;  Fof^fpr  v.  Van  lieed,  70 
K.  \' .  10;  lliih'ii  V,  M'lini/'acfiii-crx'  Inn.  Co.,  \'10 
Mass.  2)1;  I'ox  v.   Phceuix  Int.   Co.,  52  Mo, 

S.3;i. 

Lien  of  msshanio  or  material-man  creates 
an  iiij,ai;ili!e  iiitciest:  Ccirtcr  v.  ]Iumholil>  F. 
1 118.  Co.,  IJ  liiwa,  2S1;  Sloid  v.  ('ifi/  F.  Lis. 
Co.,  \-2  L\.  371;  Loii'/hnr.d  v.  Star  fnx.  (Jo.,  19 
Id.  3(J4;  //'.S-.  Co.  V.  sthison,  103  U.  .S.  2.). 

Vendor  and  vendes. — One  in  possession  of 
a  builiiing  iu!(lcr  a  valid  subsisting  contr.ict 
of  puruliase  is  tiie  etjuitable  owner,  and  h  is  an 
insurable  interest,  although  he  has  not  piiil  t'le 
whole  consideration  money:  I'anwyw  I'lvriiix: 
Ins.  Co.,  1  Fed.  Rep.  39(3;  Smith  \\  Bow.lUch 
Jnx.  f'o.,  (i  Cnsh.  44S;  T acker nvniv,  ILnne  Ins. 
Co.,  9  1!.  I.  414;  Franklin  Lis.  Co.  v.  Martin, 
49  N.  J.  L.  5(jS;  Southern  Lis.  Co.  v.  Lewis, 
42  Ga.  587;  Iiuins^y  v.  Pluenix  Lis.  Co.,  17 
Blatchf.  527.  The  validitj'  of  the  contract 
under  which  th.e  insured  holils  cannot  1)0  ques- 
tioned by  the  insurers.  It  is  sufficient  that  the 
plrtintilF  accjuire  title  to  the  sjjecifie  pro[ierty 
insured,  whicli  was  not  defeated  at  the  time  of 
the  iusurauce:  Little  v.  Phunnix  Jus.  Co.,  123 


Mass.  3S4.  The  same  principles  apply  to  per- 
sonalty: lloVirook  V.  St.  Paid  F.  etc.  Ins.  Co., 
8  Ins.  L.  J.  789. 

Lessor  and  lessee  have  each  an  interest  in 
the  ilemised  premises  wliich  may  lie  protected 
by  insurance:  Ely  v.  Ebf,  80  III.  r)32;  Sil>!o  v. 
N.  A.  /'.  Lis.  Co.,  I  Sandf.  5.32:  //o/>''  Mat.  Lis. 
Co.  V.  B->,laski,  35  Pa.  St.  2S2;  Mib-hM  v. 
Home  Lis.  Co.,  32  Iowa,  421;  Lis.  Co.  v.  Haven, 
95  U.  S.  242. 

Trustees  may  insure  the  trust  property: 
Insiiranre  Co.  v.  Cha.-<e,  5  WuU.  509.  And  in 
the  following  instances  personal  rcpreseutaavca 
ware  held  to  have  an  insiirablo  interest:  J/erki- 
vier  V.  Pice,  27  N.  Y.  1G3;  Clin'o  i  v.  /fo/ic  Ins. 
Co.,  45  Id.  454;  Savaye  v.  Howard  Lis.  Co., 
52  rd.  502. 

Partner:  See  post,  sec.  2590. 

Bxilees.  etc.:  8ec  sec.  254S,  infra. 

Future  products  insurable:  See  sec.  2549, 
infra,  and  note;  see  also  interesting  note,  20 
Am.  Dec.  510  et  seq. 

Life  insurance:  See  po^^^  sees.  2702,  2703. 

S!:ating  insurer's  interests  in  policy:  See 
post,  sees.  25GS,  25S7. 


2547.  //(  xvliat  mny  consist. 

Sec.  254-7.     An  insurable  interest  in  property  may  consist  in: 

1.  An  existing  interest; 

2.  An  inchoate  interest  founded  on  an  existing  interest;  or, 

3.  An  expectancy,  coupled  with  an  existing  interest  in  that  out  of  which  the 
expectan<-y  arises. 

Insurable  interest:  See  note  to  preceding  section. 

2548.  Interest  of  carrier  or  deposUarij. 

Skc.  2548.     A  carrier  or  dej^ositary  of  any  kind  has  an  insurable  interest  in  a 
thing  held  by  him  as  such,  to  the  extent  of  its  value. 

Pl3ds2e3  in  sGn3ral  have  an  insurable  inter-     supra;  and   as   to    innkeepers,    pawnbrokers, 


est  in  tiie  ariicles  tleposited  with  them.  For 
example:  Common  carriers:  Savaye  v.  Corn 
£xch:rn(fp  Co.,  30  N.  Y.  G55;  Ecuttern  li.  /?.  Co. 
V.  Reiii'/  F.  Lis.  Co.,  93  Mass.  420;  Carter  v. 
JIumholdt  F.  I  lis.  Co.,  12  Iowa,  2S7;  ware- 
housemen: Waters  v.  Monarch  Assnr.  Co.,  5  El. 
&  Bl.  870;  Eastern  li.  P.  Co.  v.  /?c'i.-/  /''.  Lis. 
Co.,  nujjra;  Carter  v.   Humboldt  F.  Lis.  Co., 

2549.    Blcre  expectancies. 

Sec.  2349.  A  mere  contingent  or  expectant  interest  in  anything,  not  founded 
on  an  actual  right  to  the  thing,  nor  upon  any  valid  contract  for  it,  is  not  insur- 
able. 


aud  pledgees,  sec  Wood's  Kire  Ins.,  sees.  289, 
305.  Sheriffs  holding  by  attachment  may  in- 
sure:   U'hiti'  V.  Madison,  20  N.  Y.  117. 

Consignees  have  an  insurable  interest: 
Shaw  V.  ..Etna  Inn.  Co. ,40  Mo.  573;  /lom/h  v. 
People's  F.  Ins.  Co.,  .30  Md.  393:  Planters'  Ins. 
Co.  V.  Eayle,  9  Ins.  L.  J.  71. 


Expectancy  not  insurable,  when:  See  Car- 
roll V.  Eoston  M.  Lis.  Co.,  8  Mass.  515;  Bo.vw 
Provincial  Ins.  Co.,  5  Bun.  F.  Ins.  Cas.  197. 
For  a  valuable  discussion  of  insurance  upon 
things  not   in  esse,  see  Chief  Justice   Rj'an's 


oniuion  in  Sawyer  v.  Dodye  Co.  J/.  T.  Co.,  .37 
Wis.  503,  where  a  contract  of  insurance  for 
five  years  on  grain  in  stacks  and  granary  for 
five  successive  crops  was  upheld. 


2550.    Measure  of  interest  in  propn-li/. 

Slc.  2550.     The  measure  of  an  insurable  interest  in  property  is  the  extent  to 
which  the  insured  might  be  damnified  b3'  loss  or  injury  thereof. 

Moa3ure  of  interest  is  the  loss  which  the 
insured  would  sulier  on  the  destruction  of  the 
insured  property.     For  example,  a  consignee 


lias  an  insurable  interest  to  the  extent  of  his 
advances,  expected  commissions,  and  profits: 
Shaw  v.  /Etna  Ins.  Co.,  49  Mo.  578;  ^Etna  Ins. 
Co.  V.  Jackson,  10  B.  Mon.  242.  So  a  mort- 
gagee's insurable  interest  in  the  proijerty  is 


measured  by  the  amount  of  the  debt:  Foster 
V.  ran  Peed,  70  N.  Y.  19;  Ihil'-y  v.  Maim- 
faiticer.-^'  Ins.  Co.,  120  Mass.  292;  Fox  v.  Phot- 
wx  Ins.  Co.,  52  Me.  333. 

See  also  next  section. 

Measure  of  indemnity  ia  marine  insur* 
anc3:  UnQpost,  sec.  273G. 


428 


Title  XT,  Chap.  I.] 


ixsur.ATTCE  IN  Gr:xr:RAL, 


§§  2351-2353 


2551.  Insurance  without  intcri'iit  illcgnl. 

Sec.  "I'joI.     The  sole  object  of  iusuranco  is  the  indemnity  of  the  insured,  and 
if  he  has  uo  insurable  interest,  the  contract  is  void. 

2552.  WJien  intrrrsl  must  exist. 

Sec.  2552.     An  interest  insured  must  exist  when  the  insui'ance  take  effect, 

and  when  the  loss  occurs,  but  need  not  exist  in  the  mean  time. 

Insurable  interest  must  exist  wlicn  tlie  in- 
surance was  cfff  otod  ami  wLcn  the  losa  occurred: 
Fou-lrr  V.  X<-w  York  Iii».  Co.,  20  N.  Y.  422; 
Sairi/rr  v.  J\j'ai/lieii;  51  Mo.  398;  Sweeney  v. 
Fnvik  in  1  iix.  Co.,  29  I'a.  iSt.  .";]?.     In  the  aU- 


sence  of  any  stipulation  to  the  contrary,  the 
iusureil  may  alienate  the  property  during  the 
continuance  of  the  policy  without  avoiding  it, 
and  if  lie  becomes  reinvested  with  the  title  to 
the  property,  and  owns  it  at  the  time  of  loss, 
he  may  recover  on  the  policy:  Lane  v.  Maine 
Mut.  Fire  Ins.  Co.,  12  Me.  44;  Wood  v.  IhdlaHd 
etc,  Ins.  Co.,  31  Vt.  552;  WhitwdL  v.  Putnam 


Fire  1)1'^.  Co.,  G  Lans.  IGG;  Power  v.  Oreanlns. 
Co.,  19  La.  28;  City  Fire  Ins.  Co.  v.  .Mark,  45 
111.  482.  If  a  loss  occurs  during  tlie  period  of 
alienation,  no  lecovery  can  bo  had:  logg  v. 
iMiddcsex lu-^.  Co.,  lOCush.  3o7;  Wii-on  v.  Jlill, 
3  Met.  GG.  If  any  interest  remains  in  the  in- 
sured at  tlie  time  of  the  loss  he  will  be  protected 
by  the  policy:  Uitrhcock  v.  Aorth-n-cslcrn  Ins. 
Co.,  2G  N.  Y.  GS;  Cowan  v.  Iowa  Stale  Ins.  Co., 
49  Iowa,  551. 

Alienation  of  interest:  See  note  to  next 
section. 


2553.    Effect  of  transfer. 

Sec.  2553.  Except  in  the  cases  specified  in  the  next  four  sections,  and  in  the 
cases  of  life,  accident,  and  health  insurance,  a  change  of  interest  in  any  part  of 
a  thing  insured,  unaccompanied  by  a  corresponding  change  of  interest  in  the 
insurance,  suspends  the  insurance  to  an  equivalent  extent,  until  the  interest  in 
the  thing  and  the  interest  in  the  insurance  are  vested  in  the  same  person. 

Alianatlon  of  interest— Folio  win. g  from     F.  Ins.  Co.,  17  Id.  424;  but  see  Plath  v.  jMinn. 


the  general  proposition  that  the  insured  must 
have  an  interest  in  the  proiiertj'  at  the  time  of 
the  loss  in  order  to  entitle  hiui  to  recover,  sec. 
2.j52,  snjira,  is  the  rule  of  this  section  that  the 
alienation  of  the  property  suspends  the  insur- 
ance to  an  eciuivalentoxtent.  \Vhere  the  trans- 
fer above  1  rovided  for  takes  place,  no  recovery 
can  be  had  on  the  policy  until  it  and  the  in- 
sured property  become  vested  in  tl.c  same  per- 
son: IJilihror/:  V.  Stale  Ins.  Co.,  2G  N.  Y.  GS; 
Car],enter  \-.Wa,thin()lon  l7is.  Co.,  IG  Pet.  495; 
i?a/K.s-  V.  Equitable  /«.»■.  Co.,  19  Wall.  33;  Smith 
•V.Union  //,.s\  Co.,  129  Mass.  99. 

A  stipniation  in  a  policy  of  fire  insurance 
that  the  convcj-aiice  of  the  jiroperty  insured, 
or  an  assignment  of  the  policy,  vitiates  the  pol- 
icy, is  valid;  and  where  the  policy  proviiles 
that  the  .igcnt  cannot  waive  the  condition,  its 


Farmers^  F.  Jns.  Co.,  23  Minn.  479;  Wood  oa 
Fire  Ins.,  sec.  328.  \Vhere  the  policy  expressly 
stipulates  against  the  alienation  of  a  pait  of 
the  property,  or  against  any  change  of  title,  of 
course  a  transfer  of  a  part  would  be  a  violation 
of  the  contract,  and  would  put  an  end  to  it: 
Barnes  v.  Union  Mat.  Ins.  Co.,  51  Jkle.  110; 
Ahboit  V.  IPmipden  Mut.  F.  Ins.  Co.,  39  Me. 
414:  IVesteni  Mass.  Ins.  Co.  v.  Piker,  10  Mich. 
279. 

An  absolute  sale  of  the  subject  of  the  in- 
surance is  the  simijlest  instance  of  forfeiture 
from  alienation:  Ml.  Vernon  M.  Co.  v.  Summit 
Ins.  Co.,  lOOIiio  St.  347;  Wankimiton  F.  Ins. 
Co.  v.  Fell II,  32  Md.  421;  Hazard  \.  Franklin 
Mut.  Ins.  i'o.,  7  R.  I.  429;  Home  M.  Ins.  Co.  v. 
Ilouslein,  GO  III.  521 ;  Cowan  v.  lon-a  Slate  Ins. 
Co., 40  Iowa, 551.  Likewise  a  gift  is  aclearilliis- 


breach  will  not  be  healed  by  the  action  of  the     tration  of  tlie  piinciple:  Macarf;/  v.  Commer- 


agent,  or  by  his  receipt  of  iiremiams  subse- 
quent to  the  assignment:  Shugfjart  v.  Lycom- 
inn  F.  /nx.  Co.,  .55  Cal.  408. 

TranK  for,  generally:  See  a  very  full  collection 
and  classilicalion  of  cases  in  0  Ins.  L.  J.  293. 

V7here  some  interest  still  remains  in  the 
holder  (.f  the  policy  in  the  property  insured  he 
will  1)0  protected  to  the  extent  of  that  interest: 
IPilchco'k  V.  Xorlh-ices'ern  Ins.  Co.,  -tupra;  Iloff- 
man  v.  Pla'-e,  32  N.  Y.  405;  l^e^<  Branch  Ins. 
Co,  V.  Ile'/enstpin,  40  Pa.  St.  2S9;  Coican  v. 
Iowa  State  Int.  Co.,  49  Iowa,  551;  Scaidan  v, 


cial  Ins.  Co.,  \1  La.  3G5;  Lamjdon  v.  Minn. 
Farmri'.i'  Ins.  Co.,  22  Minn.  193. 

A  conditional  transfer  of  realty  or  person- 
alty is  not  an  alienation,  within  the  meaningof 
the  section,  until  the  hapjiening  of  the  condi- 
tion: FoUom  V.  Belknap  Co.  M.  F.  I.  Co.,  .30 
N.  II.  231;  Farmer.^'  Mut.  Ins.  Co.  v.  Grayhill, 
74  Pa.  St.  17;  Ja'ksonv.  jEtna  ///s'.  Co.,  10  B. 
Mon.  242;  Wa-ihiiniton  Ins.  Co.  v.  Hayes,  17 
Ohio  St.  432;  Chandler  v.  St.  Paul  Ins.  Co.,  2 
Minn.  85. 

A  mortgage  is  not  considered  embraced  in 


Union  Fire  Ins.  Co.,  4  Jj'iss.  5\l.    The  pale  of  a    the    general    prohibition     against    alienation: 


part  (Iocs  not  deprive  the  remainder  of  the  pro- 
tection of  the  insurance:  Commercial  Ins.  Co. 
V.  Sj.anknehle,  52  111.  53;  Western  Mans.  Ins. 
Co.  v.  Piker,  19  Mich.  282.  Especially  is  tliis 
so  in  the  case  of  goods  kept  for  sale:  l^anc  v. 
Maine  F.  Ins.  Co.,  28  Am.  Dec.  150,  the  note 
to  which  contains  a  valuable  collection  of  au- 
thorities on  tills  question:  Wolfe  v.  Security  F. 
Ins.  Co.,  39  N.  Y.  49;  Hooper  v.  Hudson  P. 


Commercial  Ins.  Co.  v.  Spnnknehle.  52  111.  53; 
Hartj'ord  F.  Ins.  Co.  v.  WaUh,  54  Id.  1G4;  Au- 
rora Ins.  Co.  v.  Eddy,  '^o  Id.  213;  Folsom  v. 
Belknnp  His.  Co.,  .30  N.  II.  231;  Holliver  v.  St. 
Jose/ih  Ins.  Co.,  123  Mass.  315;  Smith  v.  Mon- 
mouth  Ins.  Co.,  50  Me.  9G.  And  chattel  mort- 
gages not  accompanied  by  possession  are  gov- 
erned by  the  same  rule:  liice  v.  Tower,  1  Ciray, 
42G;    llolbrook  \.  American  Ins.  Co.,  1  Curb. 


429 


, 2554-2557 


OBLIGATIONS. 


[Div.  in,  Paut  IV, 


193;  Van  Deuaen  v.  Charter  Oak  Inn.  Co.,  1 
Ilobt.  55.  ISo  also  a  deed  absolute  and  mort- 
gage back  do  iKitsusiiendtheinsurance:  Hitch- 
cock V.  X.  W.  Ih-<.  Co.,  20  N.  Y.  C8;  Morrison 
V.  Tenn.  M.  <fc  /'".  Ins.  Co.,  18  Mo.  232;  StcUon 
V.  7l/rt,ss.  F.  [us.  Co.,  4  Mass.  3.'5G;  although  by 
reason  of  peculiar  language  in  the  policy  a 
dilTerent  construction  was  given  to  such  a  trans- 
fer in  Snrage  v.  Iloicard Ins.  Co.,  52  N.  Y.  503. 
A  difTerent  doctrine  from  that  first  above 
stated  in  regard  to  mortgages  prevails  in  In- 
diana ami  in  Nortli  Carolina.  There  they  are 
held  to  be  "alienations:"  Loasamany.  Pani' 


licolns.  Co.,  78  N.  C.  145;  Ind.  Ins.  Co.  v.  Co- 
(pdllarl,  2  Ind.  G45;  Ind.  Iiis.  Co.  v.  Conner,  5 
Id.  170. 

For  decisions  governed  by  peculiar  wording 
of  the  policies,  see  notr^  to  Laiue  v.  Maine  Mat. 
F.  Ins.  Co.,  28  Am.  Dec.  157. 

Transfer  by  partner:  See  sec.  25.57,  ivfra. 

Transfer  by  operation  of  law:  Sec.  2556, 
infra. 

Transfer  of  thing  insured  does  not  trans- 
far  policy:  See  pod,  sec.  2093. 

Transferoflife-insuTcinoe  policy:  See  sec. 
27G4,  post. 


2554.  Transfer  after  loss. 

Sec.  2554.  A  change  of  interest  in  a  thing  insured,  after  the  occurrence  of 
an  injury  which  results  in  a  loss,  does  not  affect  the  right  of  the  insured  to 
indemnity  for  the  loss. 

See  Mellen  v.  Jlamilton  Fire  Ins.  Co.,\l  N.  Y.  609. 

2555.  Exception  in  the  case  of  several  subjects  in  one  policy. 

Sec.  2555.     A  change  of  interest  in  one  or  more  of  several  distinct  things, 
separately  insured  by  one  policy,  does  not  avoid  the  insurance  as  to  the  others. 
Transfer  of  articles  separately  insured 


does  not  affect  the  insurance  upon  the  things 
not  transferred:  Commercial  Ins.  Co.  v.  Spank- 
neble,  52  111.  53;  Koontz  v.  Hannibal  Savin tjs 
F.  I.  Co.,  42  Mo.  126;  Clark  v.  N.  E.  M.  <fc  F. 
Ins.  Co.,  6  Gush.  342.     As  to  the  effect  of  in- 


surance upon  itemized  articles,  whether  or  not 
the  contract  is  severable  or  entire,  see  the  note 
to  Schumfsch  v.  lius'^iau  Ins.  Co.,  9  Ins.  L.  J. 
63;  a  valuable  opinion  in  Merrill  v.  Afjri- 
cultural  Ins.  Co.,  73  N.  Y.  459;  and  an  article 
iu  25  Alb.  L.  J.  224. 


2556.    In  case  of  the  death  of  the  insurer. 

Sec  2556.     A  change  of  interest,  by  will  or  succession,  on  the  death  of  the 

insured,  does  not  avoid  an  insurance;  and  his  interest  in  the  insurance  passes  to 

the  person  taking  his  interest  in  the  thing  insured. 

Co.  V.  Latcrence,  4  ^Metc.  (Ky.)  9;  Hazard  v. 
Franklin  Ins.  Co.,  7  K.  I.  429;  or  involuntary: 
Perry  \\  Lordlard  F.  Ins.  Co.,  61  N.  Y.  214. 


Death  of  the  person  insured  does  not  con- 
stitute an  alienation:  Biirhank  v.  Horkinyham 
M.  F.  Ins.  Co.,  24  N.  H.  550;  Farmers'  Mut. 
Jns.  Co.  V.  Graybdl,  74  Pa.  St.  17;  Ga.  Home 
Ins.  Co.  V.  Kinnier,  28  Gratt.  88.  But  this, 
like  other  rules  above  laid  down,  bends  to  the 
contract  of  the  parties,  and  a  policy  stipulating 
against  any  change  of  interest,  "whether  by 
act  of  the  parties  or  by  operation  of  law,"  is 
avoided  by  the  death  of  the  insured  leaving  a 
will:  Sherwood  v.  Agricultural  Ins.  Co.,  73  N. 
y.  447. 

Assignment  in  bankruptcy  or  for  the 
benefit  of  creditors  is  prohibited  transfer, 
whether  the  assignment  is  voluntary:  Adains  v. 
MockinqhamMnt.  F.  /«.s.  Co., 29  Me.  292;  Youwj 
V.  Earjle  F.  Ins.  Co.,  14  Gray,  150;  Phoenix  Ins. 


Levy  of  execution  is  not  an  alienation 
working  a  forfeiture:  C!ark  v.  N.  E.  Mut.  F. 
Ins.  Co.,  6  Gush.  342;  Rice  v.  Tower,  1  Gray, 
426;  Franklin  F.  Ins.  Co.  v.  Findlay,  6  Whart. 
483.  Nor  a  sale  thereon  until  tlie  time  to  re- 
deem has  expired:  Slroufjv.  Manufacturers'  Ins. 
Co.,  20  Am.  Dec.  507.  See  Cult  v.  Phoenix  F. 
Ins.  Co.,  54  N.  Y.  595,  where  the  policy  itself 
provides  that  "  the  commencement  of  fore- 
closure proceedings  or  tlie  levy  of  an  execution 
shall  be  deemed  an  alienation  of  the  property," 
and  the  court  deemed  the  commencement  of 
proceedings  to  foreclose  a  mechanic's  lien  not 
M'ithin  the  clause. 


2557.    In  the  case  of  transfer  between  co-tenants. 

Sec.  2557.  A  transfer  of  interest  by  one  of  several  partners,  joint  owners,  or 
owners  in  common,  who  are  jointly  insured,  to  the  others,  does  not  avoid  an 
insurance,  even  though  it  has  been  agreed  that  the  insurance  shall  cease  upon, 
an  alienation  of  the  thincr  insured. 


Transfer  by  partner  to  co-partner  does 
not  avoid  an  insurance:  Hoffman  v.  ^tna  Ins. 
Co.,  1  Robt.  501;  U'i/son  v.  Geneasee  Mut.  F. 
Ins.  Co.,  16  Barb.  511;  Hoffman  v.  ^tna  F. 
Ins.  Co.,  32  N.  Y.  405;  Burnett  v.  Enfa-'a 
Home  Ins.  Co.,  46  Ala.  11;  Cowan  v.  Iowa 
Stale  Ins.  Co.,  40  Iowa,  551;  Dermani  v.  Home 
M.  Ins.  Co.,  20  La.  Ann,  69;  Pierce  v.  Naslina 
Ins.  Co.,  50  N.  H.  297;   West  v.  Citizens'  Ins. 


Co.,  27  Ohio  St.  1;  see  also  Freeman  on  Co- 
tenancy and  Partition,  sec.  218,  and  the  note 
to  Murdoch  v.  Chenanjo  Mut.  Ins.  Co..  3  Ben. 
F.  Ins.  Gas.  33.  See,  however,  Shwjijart  v. 
L;/coming  F.  Ins.  Co.,  55  Gal.  408.  tiie  policy 
stipulating  against  such  assi_nment. 

Insurance  by  partner  or  co-tenant:  See 
post,  sec.  2590. 


430 


TnxE  XI,  Chap.  I.]  INSUEAXCE  IN  GENERAL.  §§  255S-2564 

2558.    Policy  of  insurance,  when  void. 

Sec.  2558.  Every  stipulation  in  a  policy  of  insurance  for  the  payment  of 
loss,  whether  the  person  insured  has  or  has  not  any  interest  in  the  property 
insured,  or  that  the  policy  shall  be  received  as  proof  of  such  interest,  and 
eveiy  policy  executed  by  way  of  gaming  or  wagering,  is  void.  [New  section, 
approved  March  30,  1874;  Amendmerds  1873-4,  255;  took  effect  July  1,  1874.] 

Wager  policies,  whether  void  at  common  torest"  in  a  policy,  see  Wood  on  Fire  Ins.,  eec. 
law,  and  as  to  the  effect  of  "interest  or  no  in-     37;  May  on  Ins.,  sees.  7-4,  75. 

ARTICLE  V. 

CONCEALMENT   AND   KEPRESENTATI0N3. 

2561.  Concealment,  what. 

Sec.  25G1.  A  neglect  to  communicate  that  which  a  party  knows,  and  ought 
to  communicate,  is  called  a  concealment. 

This  definition,  comprising  both  intentional  ConceaLment  In  marine  insurance:  See 
and  unintentional  concealment,  is  broader  than    pod,  sees.  2GG9  et  seq. 

that  given  by  some  of  the  text-writers:   See        Concsalment  in  fire  insurance:  See  Wood 
May  on  Ins.,  sec.  200;  but  conforms  to  that  of     on  Fire  Ins.,  c.  G,  sec.  l!).j. 
others:  See  Bliss  on  Life  Ins.,  sec.  6.;.  Concealment  in  life  insurance:    See  Bliss 

Concealment — "Party"    refers   to   either    on  Life  Lis.,  99,  100. 
party  to  the  contract:  See  sec.  25G3,  iii/ra. 

2562.  Effect  of  concealment. 

Sec.  25G2.  A  concealment,  whether  intentional  or  unintentional,  entitles  the 
injui'ed  party  to  rescind  a  contract  of  insurance. 

Intentional  or  unintentional. — Whether  not  to  be  material,  and  concerning  which  no 
the  omission  to  state  M'hat  should  have  been  inquiry  was  made,  were  not  di.selosed. 
communicated  arises  from  design,  forgetfulness,  A  tubercular  affection  of  the  lungs,  or  tuber- 
or  neglect,  the  result  is  the  same:  See  Marshall  cles  upon  the  lungs  or  on  the  bi^ain,  or  con- 
on  Ins.  4()4;  Arnould  on  Ins.*536;  Denniston  v.  sumption,  constitute  a  local  disease  as  a  matter 
Thoinadon  Mat.  Ins.  Co.,  20  Me.  123;  Flanders  of  law,  within  the  meaning  of  the  word  "  local" 
on  Fire  Ins.  224.  in  life  insurance,  when  the  applicant  is  asked  if 

But   compaie   with    next    section,    and    see  he  has  a  local  disease:  Scales  v.  Univ.  L.  Ins. 

Mallori/  V.  'fnweUers  Ins.  Co.,  47  N.  Y.  56,  a  Co.,  42  Cal.  525. 
cse  of   life  insurance  where  matters  believed 

2563.  Wliat  must  be  disclosed. 

Sec.  25G3.     Each  party  to  a  contract  of  insurance  must  communicate  to  the 

other,   in  good  faith,   all  facts  within  his  knowledge  which  are  or  which  he 

believes  to  be  material  to  the  contract,  and  which  the  other  has  not  the  means 

of  ascertaining,  and  as  to  which  he  makes  no  warranty. 

"What  must  be  disclosed. — "This  appears  nizant  of  the  fact:  Angell  on  Ins.,  1st  ed.,  sec. 

to  be  the  rule  in  regard  to  fire  insurance:  Gales  174.     And  all  such  facts  which  the  other  has 

V.  j\/adison  Count  n  Ins.  Co.,  5  N.  Y.  469,  476.  not  the  means  of  ascertaining:  Le  Hoy  wUnitid 

Though  a  fuller  disclosure  is  required  in  marine  Ins.  Co.,  7  Johns.  343;  Seton  v.  Low,  1  Johns, 

insurance  (see  the  chapter  thereon),  it  depends  Cas.  1 ;  and  as  to  which  he  makes  no  warranty: 

not  on  a  difference  of  principle,  but  of  the  ex-  A^.  }'.  Firemeii's  Ins.  Co.  v.  DeWolf,  2  Cow.  56; 

tent  of  which  the  insurer  may  be  deemed  cog-  2  Duer  on  Ins.  576:  "  Commissioners'  note. 

2564.  blatters  which  need  not  he  communicated  without  inquiry. 

Sec.  25G4.  Neither  party  to  a  contract  of  insurance  is  bound  to  communicate 
information  of  the  matters  following,  except  in  answer  to  the  inquiries  of  the 
other: 

1.  Those  which  the  other  knows; 

2.  Those  which,  in  the  exercise  of  ordinary  care,  the  other  ought  to  know, 
and  of  which  the  former  has  no  reason  to  suppose  him  ignorant; 

8.  Those  of  which  the  other  waives  communication; 

4.  Those  which  prove  or  tend  to  prove  the  existence  of  a  risk  excluded  by  a 
"waiTanty,  and  which  are  not  otherwise  material;  and, 

5.  Those  which  relate  to  a  risk  excepted  from  the  policy,  and  which  are  not 
otherwise  material. 

431 


§§  25G5-2j69  obligations.  [Div.  Ill,  Pakt  IV, 

Inquiries — A  question  with  respect  to  any  neeil  not  he  communicated:  Ofrhnu^erv.  North 

particular  circumstance  is  rej^'arded  us  evidence  Briil^h   F.  Ins.  Co.,  7   Nev.  7S;  Moore  v.  I'ro- 

of   the   insurer's  belief   in    the   materiality  of  taction  Inn.  Co.,  2'.)  ^Ic.  92. 

that  circumstance,  and  therefore  the  insured  Subd.  2.  Facts  which  the  Other  ought  to 

is  bound  to  answer,  and   to  answer  trutlifuUy:  know   need    not   be   disclosi-d.  —  lllsurel•^^  are 

ChajTee  v.  Call.antiKjii.'i  Co.  Mat.  /im.  Co.,  18  N.  presumeil  to  know  all  those  general  facts  which 

Y.   '.VHi;   Loroij  v.   Market  Iih^^.  Co.,  IVJ   Id.  00;  arc  open  to  tlic  public,  and  wiiiuh   by  ordinary 

Wi'xoiiv.  Coiiwaij  lax.  Co.,  AM..  I.  141;  Graham  care  he  would  have  known:  Grrhanxfr  v.  Xor/h 

V.  Firema't's  In.s.,   1'.)  N.  Y.  Week.   Dig.  3.18.  IJrUix/i  F.  lux.   Co.,  sa/>ra;  l>"(j<ix  v.  Am.  Ins. 

Facts  wliich  it  would  not  have  been  nccessai-y  Co.,  Si)  Mo.    03;  Haley  v.  Dorrlicslcr  Mnt.  F. 

to  have  disclo.sed  must  be  made  known  when  Iitx.  Co.,  12  Gray,  543;  and  sec  sec.    2.')0(!,  as 

inquired  about:  Id.;    Vultou  v.  National  Fund  to  what  cacli  party  to  the  contract  of  insuianco 

L.  In.i.  Co..  20  N.  Y.  37;  N.  A.  F.  Inx.  Co.  v.  is  br)an  I  to  know. 

Throop,  21  Mich.  140;  Bi-eba  v.  liar 'ford  lax.  Sabd.  3.    Waiver  of  communioation:  See 

Co.,  23Coini.  51;  Umjiix  v.  Am.  las.  Co.,  '.Vd  Mo.  itij'ra.  sec.  2J'J7. 

03;  Noricirh  F.  lux.  Co.  v.  Boomer,  52  111.  442.  Snbd.  4.    FaJt3   covered   by  -^varranty; 

Subd.  1.    Fajta  which  the  other  knovira  See  in/ru,  sec.  2500. 

2565.  Tt'.^ls  of  malerialily. 

Sec.  2."3G5.  Materiality  is  to  be  determined,  not  by  the  event,  but  solely  by 
the  probable  and  reasonable  influence  of  the  facts  upon  the  party  to  whom  the 
communication  is  due,  in  forminj^  his  estimate  of  the  disadvantages  of  the  pro- 
posed contract,  or  in  making  his  inquiries. 

The  test  of  the  materiality  of  a  represen-  to  be  but  one  of  the  tests  of  materiality  of  a 

tation  or  of  a  concealment  is  that  it  iniluencca  representation.     In  case  of  warranty,  the  ques- 

theiusui'er  in  iietermining  whether  to  accept  the  tiou  of  materiality  does  not  aridi — warranties 

risk,  and   what  ])remiums  to  charge:  I'yanv.  arc  always  material:  See  May  on  Ins. ,  sec.  184; 

S'prbififiekl  Inx.  Co.,  40  Wis.  071;  Fiji  v.  Ilal-  Wood  on  Ins.,  sec.  178,  note;  but  notice  post, 

lett,  2  Cai.  57;  Columltimi  IiiJi.  Co.  v.  Lau-reiice,  sees.  2010,  2011. 

10  Pet.  507.    See,  as  to  test  of  materiality,  Wood        Materiality  of  representation;  See  vi/rOf 

ou  Fire  Ins.,  sec.  177,  note  3,  holding  the  above  sec.  2581. 

2566.  llaltiTS  ichich  each  is  bound  to  know. 

Sec  25GG.     Each  party  to  a  contract  of  insurance  is  bound  to  know  all  the 

general  causes  which  are  open  to  his  inquiry,  equally  with  that  of  the  other, 

and  which  may  affect  either  the  political  or  material  perils  contemplated;  and 

all  general  usages  of  trade. 

Matters  which  each  is  bound  to  know;  See  siqyra,  sec.  2566,  subd.  2,  in  note,  and  May 
on  Ins.,  sec.  207. 

2567.  Waiver  of  communication. 

Sec.  25G7.  The  right  to  infonnatiou  of  material  facts  may  be  waived,  either 
by  the  terms  of  insurance  or  by  neglect  to  make  inquiries  as  to  such  facts, 
where  they  are  distinctlj''  implied  in  other  facts  of  which  information  is  com- 
municated. 

"Waiver  of  answers  to  questions  may  arise  Co.,  112  Mass.  136;  Dodrje  Mnt.  Ins.  Co.  v. 
from  issuance  of  policy  with  questions  left  unan-  Rojorx,  12  Wis.  337;  Dajton  Iim.  Co.  v.  Kelly, 
swered:  ConimomccaUh  v.  hide  <t  Leather  Ins.     24  Ohio  St.  345. 

2568.  IntcreHl  <f  insured. 

Sec.  25G8.  Information  of  the  nature  or  amount  of  the  interest  of  one  insured 
need  not  be  communicated  unless  in  answer  to  an  inquiry,  except  as  lircscribed 
by  section  twenty-five  hundred  and  eighty-seven. 

Nature  and  amount  of  interest  need  not  Broion,  43  N.  Y.  389;  Williams  v.  Bo^er  irj^i. 
be  stated,  in  the  al)senctt  of  inquiries  or  of  c.K-  iam-i  Ins.  Co.,  107  Mass.  377;  Lfi'i-rrnce  v. 
press  stipulation  in  the  policy:  Oi'bert  v.  N.  A.  I'a/i  Home,  1  Cai.  270;  Daliii  v.  Farmers'  liia. 
Ins.  Co.,  23  Wend.  43;  Spriufjjidd  Ins.  Co.  v.     Co.,  5  Lans.  275. 

2569.  Fraudulent  warranty. 

Sec  25Gy.  An  intentional  and  fraudulent  omission,  on  the  part  of  one 
insured,  to  communicate  information  of  matters  proving  or  tending  to  prove 
the  falsity  of  a  warranty,  entitles  the  insurer  to  rescind. 

Facts  covered  by  warranty.  —  Duer,  2  assured  is  not  bound  in  tlie  first  instance  to 
Ins.  572,  to  whose  work  t!ie  code  comuiissiouers  communicate  any  facts  that  arc  covered  by  a 
refer  in  exphiuation  of  this  text,  says;  "Tl»e     warranty,  implied    or   express."     So  also  Be 

432 


Title  XI,  Chap.  I.]  INSURANCE  IK  GENERAL  §§  2570-257J^ 

Wolf  V.  N.   Y.   Firernmi^B  Ins.  Co.,  20  Johns,  cases  to  communicate  the  fact  of  unseaworthi- 

214;  Wahlen  v.  JV.  Y.  Fire  Ins.  Co.,  12  Id.  128.  ness  to  the  insurer. 

In  such  cases  the  policy  is  avoided  only  by  a  If  the  insurer  knows  the  falsity  of  the  war- 
breach  of  the  warranty  itself:  Wahhn  v.  N.  Y.  ranty  when  tlie  contract  is  made,  he  cannot  avail 
Fcrelns.  Co.,  supra;  De  Wolfw  N.  Y.  Flremmi's  himself  tliereof  as  a  defense:  Jamffi  River  lux.  Co. 
Iiix.  Co.,  supra;  Bullde'i  v.  ProtfCtion  In.s.  Co.,  v.  Mfrri't,  40  Ala.  3S7;  Andr.s  Inst.  Co.  v.  Ship- 
2  Paine,  82;  Silloicay  v.  N'ptune  Ins.  Co.,  12  man,  77  111.  ISO;  Roclcford  v.  Ncl.son,  Go  Id. 
Gray,  73.  But  an  intentional,  a  fraudulent,  415;  WiUurM  v.  Maine  Ins.  Co.,  40  Me.  200; 
coiiccalmont  or  repi'esentition  respecting  a  fact  Roberts  v.  Continental  In^.  Co.,  41  Ind.  S21; 
covered  by  a  warranty  avoids  the  policy:  See  uEtna  I)is.  Co.  v.  Olm-sttad,  21  Mich.  24(5;  Con- 
H'llLleij  v.  Protection  Ins.  Co.,  .'tiipra,  and  2  tinental  Ins.  Co.  v.  Ka^ey,  2.5  Gratt.  2G8;  Shcr- 
Duer,  4oJ,  as  to  the  duty  of  the  insured  in  all  man  v.  Madison  Ins.  Co.,  39  AVis.  104. 

2570.  Matters  of  opinion. 

Sec.  257(K  Neither  partj  to  a  contract  of  insui-anco  is  bo^ind  to  coniTQuni- 
cate,  even  upon  inquiry,  information  of  liis  own  judgment  upon  the  matters  in 
question. 

2571.  Rrpreseniation,  what. 

Sec.  2571.     A  representation  may  be  oral  or  written. 

Representations  in  marine  insurance:  sumed  to  embrace  all  that  were  made,  and  will 
Sec.  2(;7G,  po<f.  exclude    evidence    of     jiarol    representations: 

Representations,  if  in  "writing,  are  pre-    Wood  on  Fire  Ins.,  sec.  107. 

2572.  When  vmde. 

Sec.  2572.     A  representation  may  be  made  at  the  same  time  with  issuing  the 

policy,  or  before  it. 

Warranties:   See  sees.  2603,  2604,  post,  ers'  Ins.  and  Loan  Co.,  13  Wend.  92.     It  pro-. 

A  representation  is  not  a  ]iart  of  the  con-     cedes  the  contract. 
tract,  but  is  collateral  thereto:  Snijder  v.  Farm- 

2573.  Ill  no  interpreted. 

Sec.  2573.    The  language  of  a  representation  is  to  be  interpreted  by  the  sama 
rules  as  the  language  of  contracts  in  general. 
Interpretation  of  contracts:   See  ante,  sec.  1035. 

2574.  Bcpresevtation  as  to  future. 

Sec.  2574.  A  representation  as  to  the  future  is  to  be  deemed  a  promise^ 
unless  it  appears  that  it  was  merely  a  statement  of  belief  or  expectation. 

Statement  of  belief.— If  from  all  the  cir-  struction,  notwithstanding  the  form  of  th« 
cunistances  it  appears  that  a  statement  was  statement:  Alston  v.  Meclumioi^  M.  Ins.  Co.,  -k 
made  simjily  as  an  expression  of  a  belief  or  as  Ilili,  320;  Brymit  v.  Ocean  Ins.  Co.,  22  Tick, 
an  expectation,  it  should  receive  such  a  con-     200;  1  Amould  ou  Ins.  510. 

2575.  IToio  may  affect  policy. 

Sec.  2575.  A  representation  cannot  be  allowed  to  qualify  an  express  provis- 
ion in  a  contract  of  insurance;  but  it  may  qualify  an  implied  warranty. 

2576.  Whm  may  he  withdrawn. 

Sec,  257G.  A  representation  may  be  altered  or  withdi'awn  before  the  insur- 
ance is  effected,  but  not  afterwards. 

2577.  Time  intended  by  representation. 

Sec  2577.  The  completion  of  the  contract  of  insurance  is  the  time  to  which- 
a  representation  must  be  presumed  to  refer. 

2578.  Ripresenling  ii  formation. 

Sec.  2578.  "When  a  person  insured  has  no  personal  hnowledge  of  the  fact, 
ho  may  nevertheless  repeat  information  wliich  he  has  upon  the  subject,  and 
which  ho  believes  to  be  true,  with  the  cxphmatiou  that  he  does  so  on  tlio  infor- 
mation of  others,  or  ho  ma}'  submit  the  infonuatiou,  in  its  whole  extent,  to  the 
insurer;  and  in  neither  case  is  he  responsible  for  its  truth,  unless  it  proceeds 
from  an  agent  of  the  insured,  whose  duty  it  is  to  give  the  intelligence. 

Agent  of  insured,  concealment  or  misreprcseutatiou  by:  See  May  on  Ins.,  sec.  122, 
Civ.  Code— 28  433 


Sg  2579-2586 


OBLIGATIONS. 


[Div.  ni,  Part  IV, 


S579.    Falsity. 

Sec.  2579.  A  representation  is  to  be  deemed  false  when  tlie  facts  fail  to  cor- 
respond with  its  assertions  or  stipulations. 

2580.    EfecloJ/aMUj. 

Sec.  2580.  If  a  representation  is  false  in  a  material  point,  whether  affirma- 
tive or  promissory,  the  injured  party  is  entitled  to  rescind  the  contract  from  the 
time  when  the  representation  becomes  false. 

Representation  avoiclins  insurance. — A  Don^dl,  ^"dlW.  \-20;  Collins  v.  Charlpfttmon  Mut. 
teprcscnlatiou  false  in  a  material  particular 
avoids  the  contract  of  insurance:  Jcffe.rAoii  Ins. 
Co.  V.  Cotlical,  7  Wend.  72:  (^ontimnital  Ins.  Co. 
V,  Kasy,  25  Gratt.  2GS;  Clark  v.  Mauu/ac- 
turer.s'  Ins.  Co.,  S  How.  248. 

But  if  tiie  falsity  is  not  on  a  material  point  it 
does  not  avoid  t!ie  policy:  Irvhtrj  v.  Sea  Ins. 
Co.,  22  V/eud.  3S0;  Ins.  Co.  of  N.  A.  v.  Mc- 


F.  Ins.  Co.,  10  Gray,  155;  Wynne  v.  Liv.  L.  <fr 
O.  Im.  Co.,  71  N.  C.  121. 

If  false  in  a  material  point,  the  falsity  does 
not  avoid  the  policy  unless  the  insurer  has  been 
misled  by  it:  Campbell  v.  3Ierr/ianfs'  F.  Ins. 
Co.,  49  ^ie.  200;  Row.'cy  v.  Em/iire  Ins.  Co.,  40 
N.  Y.  557;  and  see  Clason  v.  S77iUh,  3  Wash. 
15G. 


:2531.    Maleriality. 

Sec  2581.     The  materiality  of  a  representation  is  determined  by  the  same 
;Tule  as  the  materiality  of  a  concealment. 

Materiality  of  representation,  how  da- 
•-termr'ned:  See  ante,  sec.  '25G5. 

Tliai  it  is  a  qnestiou  for  the  jury  under  all 
■'*he  facts  and  circumstances,  see  Sexton  v. 
.Moni^omcrj  Ins.  Co.,  9  IJarb.  191;  McLinahrin 
V.  Uulvtrsal  Ins.  Co.,  1  Pet.  170;  Life  Ins.  Co. 


V.  Francisco,  17  Wall.  672;  Boardman  v.  N. 
II.  etc.  Ins.  Co.,  21  N.  H.  551. 

But  where  the  facts  are  not  in  dispute,  tht* 
question  is  for  the  court:  Currij  v.  Com.  hut. 
Co.,  10  Pick.  535;  Fletcher  \.  Com.  Ins.  Co.,  IS 
Id.  419. 


.'2582.    Applicalion  of  provisions  of  this  article. 

Sec.  2582.     The  provision  of  this  article  apply  as  well  to  a  modification  of  a 
•  contract  of  insurance  as  to  its  original  formation. 

;2583.    Illc/ht  to  rescind,  when  e.rerched. 

Sec  2583.     Whenever  a  right  to  rescind  a  contract  of  insurance  is  given  to 

the  insurer  by  any  provision  of  this  chapter,  such  right  may  be  exercised  at  any 

time  previous  to  the  commencement  of  an  action  on  the  contract.     {Ncio  section, 

•approved  Jlarch  30,  1874;  Amendments  1873-4,  255;  took  effect  July  1,  1874.] 

nes-oission  of  contract  of    insurance. —    the  policy  was  issued.     If  it  be  then  ascer- 


*'Thc  object  of  tliis  section,"  say  the  code 
•  examiners,  at  whose  recommendation  it  was 
adopted,  "is  to  lix  a  limit  in  which  the  right 
to  rescind  can  be  exercised.  Usually  the 
ground  for  rescission  is  not  discovered  until 
alter  a  loss,  when  investigation  in  had  respect- 
aug  the  truth  of  the  representatiou  upon  wliich 


tained  tiiat  a  material  fact  was  concealed  from 
the  insurer,  his  right  to  rescind  should  be 
promptly  exercised,  if  at  all.  A  failure  to 
exercise  the  right  cannot  of  course  prejudice 
any  defense  to  the  action  which  the  conceal- 
ment may  furnish." 

See  also  sec.  2G09,  post,  and  note. 


'2583.   Policy,  what. 


AETICLE  VI. 

THE    POLICY, 


Sec  25SG.     The  written  instrument  in  which  a  contract  of  insurance  is  set 


forth  is  called  a  policy  of  insurance. 

Parol  contracts  of  insurance  are  valid,  in 
the  absence  of  a  statute  to  the  contrary:  First 
Baptist  Church  v.  Brooldyn,  19  N.  Y.  304;  EUis 
V.  Albany  City  Fire  Ins.  Co.,  50  Id.  402;  An;;el 
V.  Harford  Fire  Ins.  Co.,  59  Co.  171;  Ileninrj 
V.  United  States  Ins.  Co.,  47  Mo.  425;  Ilelief 
Fire  Ins.  Co.  v.  Shaio.,  94  U.  S.  574;  Sanborn 
V.  Firenuin's  Ins.  Co.,  16  Gray,  44S. 

And  see,  generally.  Wood  on  Ins.,  sees.  4  et 
eeq.,  containing  a  valuable  discussion  of  the 
requisites  of  valid  parol  contracts.  In  the  note 
to  Talyor  v.  Phoenix  Ins.  Co.,  8  In3.  L.  J.  S53, 


will  be  found  some  further  adjudications  upon 
questions  growing  out  of  this  sul)ject. 

Policies  are  to  bs  iuterpretad  by  the  same 
rales  which  apply  to  other  contracts,  and  are 
to  be  enforced  according  to  the  intentions  of 
the  parties:  IF".  F.  <i:  Co.  v.  Pacific  Ins.  Co.,  44 
Cal.  397;  and  are  to  be  construed  liberally  iu 
favor  of  the  insured:  Id.  An  indorsement  on 
the  back  of  the  policy,  of  the  name  and  place 
of  business  of  the  company  by  which  it  is  is- 
sued, forms  no  part  of  the  policy:  Ferrer  v. 
Home  Mat.  Ins.  Co.,  47  Id.  416. 


434 


Title  XI.  Chap,  I.] 


INSURANCE  IN  GENERAL. 


B  2587-2591 


2587.    TT7ta/  must  be  specified  in  a  policy. 

Sec.  2587.     A  policy  of  insurance  must  specify: 

1.  The  parties  between  whom  the  contract  is  made; 

2.  The  rate  of  premium; 

3.  The  property  or  life  insured; 

4.  The  interest  of  the  insured  in  property  insured,  if  he  is  not  the  absolute 
owner  thereof; 

5.  The  risks  insured  against;  and, 

G.  The  i:)eriod  during  which  the  insurance  is  to  continue. 

Subd.  4.  Describing  nature  of  interest 
"This  provision  is  contrary  to  tlie  common 
law:  Whitew  Ihulson  lllver  Ins.  Co.,  7  How.  Pr. 


3-iI;  C'roic.'ii/  v.  Cohen,  .3  Barn.  &  Add.  478;  2 
Parsons  on  Mariviine  Law,  202.  Mr.  Dner 
recommended  its  introduction  from  the  French 
law  into  ours,  and  the  rcconnnendation  being  a 
good  one  (see  2  Duer  on  Ins.  4G3)  was  acted  on. 
This  makes  a  radical  cliaugc  in  the  law  as  it 
existed  previously,  and  should  be  carefully  ob- 
Berved  in  making  or  receiving  a  polii  y,  for  in 
many  cases  it  is  very  ditiiciilt,  and  may  some- 


times be  utterly  impossible,  to  describe  particu- 
larly the  interest  before  the  loss;  and  the  former 
rule  M-assaid  by  Phillips,  i  Phillips  on  Ins.,  sub- 
sec.  438,  to  have  arisen  'from  the  necessit\'  of  tha 
case:'  Hee  the  case  of  Kewleij  v.  Ri/an,  2  II. 
Black.  .S43,  by  Lord  Mansfield  anfl  associates, 
quoted  in  1  Phillips  on  Ins.,  Bubsec.  438, 
supra.  It  is  now  necessary  to  describe  the  in- 
terest insured  in  the  jjolicy:  See  also  sec.  28jj, 
Iiot:t,  and  note,  as  to  what  is  covered  by  certain 
terms  inserted  in  a  policy: "  Commissioners' 
note.    Compare  with  section  25G8. 


2588.    Whose  ivterest  is  covered. 

Sec.  2588.  When  the  name  of  the  person  intended  to  be  insui-ed  is  speci- 
fied in  a  policy,  it  can  be  applied  only  to  his  own  proper  interest. 

Seating  interest  of  insured:  See  ante,  sec.  2jG8. 

Insurable  interest  generally:  See  ante,  sec.  2546. 

2583.    Insurance  by  agent  of  trustee. 

Sec.  2589.  "When  an  insurance  is  made  by  an  agent  or  trustee,  the  fact  that 
his  principal  or  beneficiury  is  the  pei-son  really  insured  may  be  indicated  by 
desciibiug  him  as  agent  or  trustee,  or  by  other  general  words  in  the  policy. 

2590.   Insurance  by  part  owner. 

Sec  2590.  To  render  an  insurance  effected  by  one  partner  or  part  owner 
applicable  to  the  interest  of  his  copartners  or  of  other  part  owners,  it  is  neces- 
sary that  the  terms  of  the  policy  should  be  such  as  are  applicable  to  the  joint 
or  common  interest. 


Insurance    by   partner    of   co-tenant. — 

^Yhero  a  [lartner  or  a  part  owner  insures  in  his 
own  name  only,  in  the  absence  of  any  evidence 
to  the  contrary  the  policy  will  cover  the  lui- 
divided  interest  only  of  the  party  named: 
Peoria  etr.  Ins.  Co.  v,  Ifa/I,  12  ]\iich.  202; 
JJaileij  V.  J/ope  his.  Co.,  50  Me.  474. 

But  if  it  be  known  to  the  insurer  that  it  was 
intended  to  cover  the  interests  of  all,  a  recov- 


ery may  be  had  for  the  whole  interest:  Man- 
hat  tan  Ins.  Co.  v.  Webster,  GO  Pa.  St.  227; 
A'e'Uk  V.  Clohe  Ins.  Co.,  52  111.  518;  Peoria  Ins. 
Co.  v.  lla'l,  .'<iipra.  A  surviving  partner  or 
tenant  in  common  may  enforce  a  policy  issued 
to  ])rotect  tlie  entire  interest  in  the  projierty: 
Oak'im  V.  Dorchestrr  Ins.  Co.,  i;8  Mass.  57. 

Transfer  cf  policy  from  one  partner  to 
another:  See  ante,  sec.  2557. 


2591.    General  terms. 

Sec  2591.  When  the  description  of  the  insured  in  a  policy  is  so  general  that 
it  may  comprehend  any  person  or  any  class  of  persons,  he  only  can  claim  the 
benefit  of  the  policy  who  can  show  that  it  was  intended  to  include  him. 

For  -whora  it  may  concern. — "A  policy     the  subsequent  ratification   of  the   party  for 


made  in  tiie  name  of  a  particular  person  'for 
whom  it  may  concern,'  or  with  any  oiher  equiv- 
alent clause,  will  be  applied  to  tlie  interest  of 
the  party  or  p.irties,  and  only  the  party  or 
parties,  for  whom  it  is  intended  by  the  person 
who  effects  or  orders  it,  if  such  party  has  au- 
thorized its  being  made  l>eforehand,  or  subse- 
quently adopts  it:"  1  Phillips  on  Ins.,  sec.  383. 
When  there  is  no  previous  authorization,  the 
iuteutiou  of  the  parties  to  the   contract  and 


whom  it  was  effected  determine  its  validity 
and  the  right  of  the  latter  to  recover  on  it: 
Duck  \.  Chesapeake  Ins.  Co.,  1  Pet.  151;  Ban- 
ilerji  V.  Union  Ins.  Co. ,  2  Wash.  39 1 ;  iJe 
BoJle  V.  Penn.  Ins.  Co.,  4  U'hart.  68.  Where 
there  is  a  prior  authority,  the  intention  of  the 
party  giving  this  authority  determ'nes  whose 
interests  are  concerned:  Holmes  v.  United  Ins. 
Co.,  2  Johns.  Cas.  329. 
These  clauses,  ' '  for  whom  it  may  concern." 


435 


'U  2593-2597 


OBLIGATIONS. 


[Div.  m,  Part  IV, 


and  thelike,  applyonlyinfavorof  thoscwho  were 
contemplated  at  the  time  the  insurance  was 
made,  and  who  then  had  an  insurable  interest 
in  the  subject-matter:  1  Parsonson  Mar.  Ins.  4G. 
It  is  not  necessary  that  the  aijent  should  know 
Avho  the  parties  concerned  are.  If  he  inten<led 
to  protect  all  interests,  tlien  any  who  at  that 
time  and  at  the  loss  had  an  interest  is  protected 
by  the  policy:  Warinj  v.  Indeniitji  Juh.  Co.,  45 
N.  Y.  606;  Sanders  v.  I lil'.shoroufjh  Inn.  Co.,  44 
N.  H.  238;  Hooper  v.  Robinson,  1)8  U.  S.  528. 


In  "who've  nams  action  to  be  brought.  — A 

recent  case  in  Maine,  S'eeper  v..  Union  In.i.  Co., 
C")  Me.  .385,  liolds  that  either  tlie  party  procuring 
tlie  policy,  or  the  one  for  whose  benefit  it  was 
taken  out,  althougli  not  named  tlierein,  may 
sue  on  the  pf)licy.  Barnes  v.  Union  M.  F.  Ins. 
Co.,  45  N.  H.  21,  is  a  valuable  decision,  the 
court  collecting  many  adjudications  in  which 
an  action  in  the  name  of  the  agent  obtaining 
the  policy  was  upheld. 


2592.   Successive  owners. 

Sec.  2592.  A  policy  may  be  so  framed  that  it  will  inure  to  the  "benefit  of 
"whomsoever,  duringf  the  continuance  of  the  risk,  may  become  the  owner  of  the 
interest  insured. 

"This  provision  is  new,  but  certainly  just,  Sebor,  2  Cai.  203;  lioqem  v.  Traders''  Ins.  Co., 
and  corresponds  with  sections  'Ibbo,  2554,  and  G  Paige,  58.3,  507;  Waring  V.  Indemnily  Ina. 
2556,  ante:"  Commissioners'  note.  Co.,  45  N.  Y.  611. 

See  examples  of  such  policies:  Lawrence  v. 

2533.    Transfer  of  the  thing  insured. 

Sec.  2593.  The  mere  transfer  of  a  thing  insured  does  not  transfer  the  policy, 
but  suspends  it  until  the  same  j^erson  becomes  the  owner  of  both  the  policy 
and  the  thins:  insured. 


property  has  again  come  into  his  hands,  he 
stili  holding  the  policy,  see  Cockerill  v.  Cin. 
Ins.  Co.,  16  Ohio,  148;  Home  Ina.  Co.  v.  Ifaus- 
kin,  GO  111.  521. 


Transfer  of  interest:  See  generally,  on 
alienation  of  interest,  sees.  2533  et  seq. 
"Whether  the  policy  by  expressly  stipulating 
against  transfer  can  prevent  the  revival  of  tlie 
insured's  right  to  recover,  notwithstanding  the 

2594.  Open  and  valued  policies. 

Sec.  259A.     A  policy  is  either  open  or  valued, 

2595.  Open  policy,  what. 

Sec.  2595.     An  open  policy  is  one  in  which  the  value  of  the  thing'  insured  is 
not  agreed  upon,  but  is  left  to  be  ascertained  in  case  of  loss. 

2596.  Valued  2)ol icy,  what. 

Sec.  259G.     A  valued  policy  is  one  which  expresses  on  its  face  an  agreement 
that  the  thing  insured  shall  be  valued  at  a  specified  sum. 


Valuation  in  marine  insurance:  See  jwst, 
8cc.  27.36. 

Valued  policies. — In  the  absence  of  fraud, 
t!ie  sum  agreed  on  in  valued  policies  is  conclu- 
sivc;  in  open  policies,  the  \alue  at  the  time  of 
the  loss  must  Ije  proved:  Alsop  v.  Com.  Ins. 
Co.,  1  Sumn.  451;  Holmes  v.  Charleslown  Ins. 
Co.,  10  Met.  211;  Li/comi/nj  I.is.  Co.  v. 
ilichdl,  43  Pa.  St.  372;  Caskmnn  v.  N.  W. 
Ins.  Co.,  34  Me.  487.  Any  form  of  expression 
defining  the  intention  of  the  parties  may  bo 

2597.    Running  policy,  ichat. 

Sec  2597.  A  running  policy  is  one  which  contemplates  successive  insur- 
ances, and  which  provides  that  the  object  of  the  policy  may  be  from  time  to 
time  defined,  especiall}'^  as  to  the  subjects  of  insurance,  by  additional  statements 
or  indorsements. 


used  to  show  that  a  policy  is  "valued:" 
Laurent  v.  (Jhalham  Ins.  Co.,  1  Hall,  40;  iVal- 
lace  V.  /ns.  Co.,  4  La.  289. 

Over-valuation:  See  a  note  to  Doden  v. 
Iliniihani  lUnt.  /■'.  //;.<t.  Co.,  23  Am.  Dec.  GIG. 
Mere  over-valuation  is  not  evidence  of  frau^lu- 
lent  misstatement,  nor  will  such  fact  throw 
upon  the  insured  the  burden  of  showing  that 
the  st:iteiiientwr.3  innocently  made:  Ilelbing  v. 
Soea  Ins.  Co.,  54  Cal.  156. 


Running  policies. — In  Arnohl  v.  Padjic 
J^IuL  I, IX.  Co.,  78  N.  Y.  7,  12,  tlie  court  t'.ius 
speak  of  running  policies  of  insurance:  "  Tue 
general  rule  i.s  that  t!ie  property  insured  must 
be  spcciiied  in  the  policy.  Udo  open  or  running 
ro'icics  are  an  exception  t;)t'ii3  rule.  Thjy  were 
brought  into  usp  to  enable  merchants  to  insure 
their  goods  shipped  at  distant  ports,  when  it  is 


impossible  for  them  to  know  the  precise  quaa 
tifcy  orchiracter  of  tlio  goods,  or  the  jtarticular 
ship  in  whic!)  thjy  are  shipped,  and  tlius  un- 
able to  djscrihe  accui-ately  or  particularly  the 
subject  of  insurance:  1  Aruould  on  Marine 
Ins.,  4th  ed.,  318.  These  policies  gener- 
ally, if  n'>t  universally,  require  that  the  risk 
shall  be  d«clareJ  or  reported   to   the  uader- 


436 


Title  XI,  Ciiap.  I.] 


INSURANCE  IX  GENERAL. 


§§  259S-2605 


writer  as  soon  as  known  to  tlie  assured."  Tiie 
reason  of  this  requirement  was  statC'l,  in 
Carver  Co.  v.  Maiiuf.  Ins.  Co.,  6  Gray,  "214,  to 
be:  "To  itlentify  the  property  insured;  to 
know  what  was  at  ri-k,  that  they  miglit  protcet 
it;  to  aseeitain  when  tiie  policy  was  exhausted; 
anil  u.s  evidence  of  the  sums  at  risk  and  pre- 
mium earned." 

That  policies  of  this  nature  may  fasten  upon 


the  insurers  a  responsiliility  for  a  loss  known 
befoi-e  indorsement  on  the  policy  of  the  value 
of  the  suhject-matter  is  demanded,  see  IF.  /''. 
<t  Co.  V.  I'ac'Jic  /;is-.  Co.,  41  Cal.  307. 

See  also  Orient  Mut.  Lis.  Co.  v.  Wrhjhi,  C!3 
How.  401;  Kfuiifhi'C  Co.  v.  Awjaxta  lux.  Co.,  0 
Gray,  204,  for  other  decisiouii  in\'olving  the 
rights  of  the  parties  to  running  policies  of  in- 
surance. 


2588.   Effect  of  receipt. 

Sec.  25U8.  An  acknowledgment  in  a  policy  of  the  receipt  of  premium  is 
conclusive  evidence  of  its  payment,  so  far  us  to  make  tlie  policy  "binding,  not- 
\vith8tanding  any  stipulation  therein  that  it  shall  not  be  binding  until  the 
pre] mum  is  actually  paitl. 

Acknov/ledpmeut  of  receipt  of  preiiiiuin  eel  the  policy  for  any  cause  may  notify  the  iu- 
in  a  policy  cf  insurance  delivered  to  the  insured     sured  that  they  will  do  so  if  the  premium  \)a 


not  paid  i)y  a  certain  day;  and  the  ackno\vle<lg- 
ment  in  the  policy  of  tlie  receipt  of  the  pre- 
mium will  not  prevent  the  compajiy  from  set- 
ting up  the  defense  of  cancellation:  Ber(jsoii  v. 
Builders'  Ins.  (Jo.,  38  Cal.  541. 

Fremiunis  in  gsasral:  See  sec.  2U1G  et  seq., 
post. 


cauiiot  be  denied  so  as  to  destroy  the  bind'ng 
effoct  of  th'.;  policy:  BfUicli.  v.  II uvihohlt  Lis.  Co., 
?.')  N.  J.  4-20;  Teulonia  Lis.  Co.  v.  Mueller,  77 
111.  -22;  l)<uiton  Ins.  Co.  v.  A'elli/,  24  Ohio  St. 
345;  Ueatoii  v.  JSIaiihatlan  I  its.  Co. ,7  R.  I.  502; 
Insurance.  Co.  v.  Coll,  20  Wall.  500;  Cons.  Ins. 
Co.  V.  Cdslioio,  41  M<1.  59.  The  insun.nce  com- 
pany reserving  to  themselves  the  right  to  cau- 

2jS9.    Ar/reeme}d  not  lo  tran.fer. 

Sec.  2509.     An  agreement,  made  before  a  loss,  not  to  transfer  the  claim  of  a 
pert:ou  insured  against  the  insurer  after  the  loss  has  happened  is  void. 

ARTICLE  YII. 

WARRANTIES. 

26C3.    Warrant]),  e.rpresf^  or  implied. 

Sec.  2G03.     A  warranty  is  either  express  or  implied. 
Implied  warranties  iu  niariue  insurance:  See  sees.  20S1  et  seq,,  post, 

2604.    Form. 

Hi:c.  2(504.     No  particular  form  of  wor 

TIio  form  of  warranty  is  made  immaterial 
by  the  above  section.  As  is  said  in  \\  ood  on 
Fu'e  Ins.,  sec.  107,  supported  by  many  adjudica- 
tions: •'  No  particular  torni  of  words  is  neces- 
sary. It  is  enough  if  the  language  is  such,  as 
applied  to  the  risk,  to  indicate  that  it  was  the 
intention  of  tlie  parties  that  a  certain  thing 
shoald  be  done,  or  a  certain  state  of  tilings  con- 
tinue, and  the  language  must  be  such  as  to 
leave  no  doubt  that  a  coutiniiing  warranty  is 
intended."  Express  warranties  must  be  em- 
bodied ill  ilie  policy:  See  sec.  2005,  infra;  and  it 
Becms  tliat  warranties  will  not  be  created  by 
construction:  Jejj'erson  Lis.  Co.  v.  Cothral,  7 
Wend.  72.     If  the  provision  in  the  policy  sought 


ds  is  necessary  to  create  a  warranty. 

to  be  enforced  as  a  warranty  is  so  ambiguously 
expressed  as  to  afford  no  dclinite  idea  of  ita 
character,  it  wid  not  be  regarded  as  a  warranty: 
NalioiKil  r>avk  V.  [lis.  Co.,  05  U.  S.  073.  It  is 
the  general  rule  of  constructiun,  recognized  in 
this  decision,  that  warranties  are  to  be  con- 
strued most  strongly  against  the  insurer:  See 
SiniUi  V.  Mechanics'  F.  I.  Co.,  32  N.  V.  300; 
lli,ll,ie  V.  Guardian  M.  L.  Ins.,  53  Id.  G03; 
McCidloch  V.  Norwood.  58  Id.  502;  Dillehi-r  v. 
Home  Ins.  Co.,  CO  Id.  250;  Aurora  F.  I.  Co.  v. 
Eddi/,  55  111.  213;  KvereU  v.  Continental  Lis. 
Co.,  21  Minn.  70;  U.  S.  Ins.  Co.  v.  Kinibirh/, 
31  i\Id.  224;  Wilson  v.  Hampden  Ins.  Co.,  4 
II.  I.  157. 


2605.    Warranty  must  be  in  policy. 

Sec  2G05.  Every  express  warranty,  made  at  or  before  the  execution  of  a  pol- 
icy, must  be  contained  in  the  polic}  itself,  or  in  another  instrument  signed  by 
the  insured,  and  referred  to  in  the  policy,  as  making  a  part  of  it.  [Amend- 
viriil,  appruced  March  30,  1874;  Ameiidmenl,^  1873-4,  255;  look  ejfeci  July  1, 
1874. ] 

of  a  policy  must  bo  contained  in  the  policy  it- 
self, and  another  iustrument,  whetlierupoii  tlie 
same  ))a|i(!r  or  not,  cannot  be  referred  to  as 
making  a  i)art  cf  the  policy  for  this  purpose, 
i)rcbs  warranty  made  at^or  before  the  execution     even  by  agreement  of  the  parties."     la  propoa- 

437 


"Warranty  contained  in  otlior  iastru- 
merjc.'S.  — 'i'lie  above  section  matei'ially  departs 
fruii)  iiiat  originally  framed  by  the  ode  comniis- 
Bionerw.     In  their  draught  it  read:   "  Every  ex- 


^§  2606-2609 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


iiig  the  above  amoiiflmpnt,  the  code  examiners 
■explained:  '"Tlie  amcmlment  restores  the  law 
IS  it  existed  previous  to  the  code:  See  Parsons 
m  MuriLimo  Law,  106,  ami  Phillips  on  Ins., 
Bee.  7">0.  The  law  as  it  now  stands  works 
great  hardship  on  insurers,  without  any  cor- 
les[)onilint;  l>enetit  to  any  one.  Insurers  against 
lire  are  in  tlie  habit  of  talcing  risks  from  a  dis- 
tance, relying  entirely  on  the  written  represen- 
tations oif  the  insured.  These  are  generally 
made  on  printed  bhinks  furnished  by  the  in- 
Burers,  and  sometimes  cover  two  or  three  pages 
of  tlescriptii'U,  with  diagrams  showing  ex- 
posures, construction,  occupation,  and  otlier  ele- 
ments of  risk,  according  to  which  the  premium 
id  graduated.  Ail  this  cannot,  without  great 
inconvenience,  1)6  coined  into  the  policy,  yet  un- 
less this  is  done,  the  present  section  deprives  the 
insurer  of  the  right  to  prove  tlie  conditions  on 
which  he  was  induced  to  fix  the  premium  and  is- 
Kue  the  policy.  So  with  marine  risks;  they  are 
constantly  taken  on  vessels  not  known  to  the 
insurer  persimally,  or  described  in  his  registers 
of  shipping."  The  section  as  it  now  reads  is  in 
iiarniony  with  the  rule  that  a  warranty  may  be 


contained  in  another  instrument  than  the  policy 
when  expressly  referred  to  in  the  policy  as  form- 
ing a  part  thereof:  Le  Roy  v.  Market  F.  Ins. 
Co.,  ;WN.  Y.  90. 

Application  for  insurance  is  part  of  the 
contract  when  expressly  maile  so,  ami  under 
those  circumstances  nmst  bo  set  out  in  an  ac- 
tion on  the  pohcy  for  a  loss:  Gihnore  v.  Lif- 
comhij  Fire  Jus.  Co.,  55  Cal.  P2,3.  But  the  terms 
of  a  mere  verbal  application  need  not  be  al- 
leged: Tis'-JilTW.  Calif oriiki  Fanners'  M lit.  Ins. 
Co. ,  4  West  Coast  Rep.  5<)5. 

For  a  discussion  of  what  statements  in  the 
application  are  warranties  ami  what  mere  mat- 
ters of  description,  see  a  note  to  Fowler  v.  JEtna 
Fire  las.  Co.,  16  Am.  Dec.  462.  Where  the 
policy  refers  to  the  ai)plicatiou  and  makes  it 
part  of  the  policy,  any  Ijreach  of  tlie  conditions 
or  representations  made  warranties  by  the 
terms  of  the  a[)plication  avoids  the  policy: 
lhhpn>i  v.  ^Etna  Iii^.  Co.,  5S  Cal.  S.'i. 

R-apresentations  a3  distinj^ulshed  from 
"warrantias:  See  the  note  to  Fowler  v.  yElnti 
Ins.  Co.,  16  Am.  Dec.  462,  above  referred  to; 
and  sees.  2571,  ante,  et  seq. 


2G06.    r<iiil,  jjresp.nt,  and  fatare  warranlles. 

Sec.  2G0G.     A  warrauty  may  relate  to  the  past,  tbe  present,  tlie  future,  or  to 
any  or  all  of  these. 

Promissory  -wairanties:  See  sec.  2S0S,  and  note. 


2607.    Warranty  as  to  past  or  present. 

Sec.  2G07.  A  statement  in  a  policy 
tliing-  insured,  or  to  tlie  risk,  as  a  fact, 

Statements  of  facts  as  warrant'es. — The 
distinction  probably  souglit  to  l)0  in  ule  here  is 
between  mere  descri[itive  particulars  which 
serve  to  identify  the  property  insured  and 
Btatenicnts  which  go  ral.licr  to  the  nature, 
extent,  and  incidents  of  the  risk.  Thus,  the 
building  insured  was  described  as  a  ''two-siory- 
and-extension  I'rame,  .shing!o-roof  building,  oc- 
cupied as  a  dwelling; "  and  tlic  court,  in  Alex- 


,  of  a  matter  relating  to  the  person  or 
is  an  express  warranty  thereof. 
ander  v.  Germanla  F.  Ins.  Co.,  63  N.  Y.  4G4, 
held  "oocujded  as  a  dwelling"  to  be  a  war- 
ranty. So  the  description  of  the  vessel  as  "tho 
good  American  sliip  called  The  llndinan"  was 
held  a  warranty  that  the  vessel  was  Amei'ican: 
Barker  v.  Phm/iix  Ins.  ('o.,  8  Jolins.  807.  And 
for  many  other  deci>ions  illustrative  of  the  dis- 
tinctiiin  above  suggested,  see  the  note  to  Fowler 
V.  J::tna  F.  Ins.  Co.,  16  Am.  Doc.  46^  460. 


2608.     Wnrranfi/  a.'^  to  tlie  future. 

Sdc.  2G0S.     A  statement  in  a  policj',  which  imports  that  it  is  intended  to  do 

or  nut  to  do  a  thing  which  materially  affects  the  risk,  is  a  warranty  that  such 

act  or  omission  shall  take  place. 

etc.,  wliich  are  making;  shall  not  run  nights 
over  four  months."  It  was  held  that  this 
amounted  to  a  warranty  that  the  factory  .should 
stop  running  at  nights  when  the  cards  then 
making  were  linished,  and  in  no  event  linger 
than  for  four  months.  So  also  in  It'ipleii  v. 
jEt.n.a  Inr,.  Co.,  .3J  N.  Y.  i;]G,  and  in  dteiilalc 
Woolen  Co.  V.  Pro'ertion  Ins.  Co.,  21  Conn.  19, 
the  sta'^enent,  "there  is  a  watchman  nights," 
was  lield  a  warranty  for  the  future. 

See,  further,  Wood  on  Fire  Ins.,  sec.  165  et 
eetj.;  note  in  10  Am.  Dec.  470. 


Promissory  warranties. — For  a  comment 
upon  the  [leculiar  pliraseology  of  this  section, 
pee  Barber  on  Ins.  87.  And  see  also  JMr. 
Duer's  remarks,  2  Ins.  707,  upon  the  eli'ect  of 
the  insured's  declaration  of  ids  intention.  The 
commissioners  refer  to  Bllbronij/i  v.  Heiropoli- 
tnn  /.vs.  Co.,  5  Ducr.  587,  an  I  from  the  princi- 
ple of  that  case  the  above  section  was  probably 
drawn.  There,  in  answer  to  the  in<iuiry, 
"During  what  hours  is  the  factory  workeil  ?" 
it  was  stated  that  the  cards,  picker,  etc.,  were 
run  day  and  nig'.it;  and  further,  "  we  only  in- 
tend running  nights  until  we  get  more  cards, 

2S0D.    Performance  cxcm^i'd. 

Sec.  2GGD.  When,  before  the  time  arrives  for  the  perfoi'mance  of  a  warranty 
relating  to  the  future,  a  I033  insuroLl  against  happens,  or  performance  becomes 
unlawful  at  the  place  of  the  contract,  oc  impossible,  the  omission  to  fuUill  the 
wai'ranty  does  not  avoid  the  policy.  [A:ni'a  lin-'nl,  approved  March  oO,  1874:; 
Amendments  1873-4,  255;  looh  "J'^'cl  JuJij  1,  1874.] 

4C8 


Title  XI,  Cuap.  I.] 


INSURANCE  IN  GENERAL. 


§3  2GI0-2G17 


Resoindin^  contract  of  instirance:  See  section  in  Barber  on  Ins.,  mc.  07,  wh-re  the 
sec.  25S;i,  supra,  as  t;)  the  time  when  the  I'ight  author  consiilers  the  effect  of  construing  war- 
to  roscimi  ma  v  be  ex  .-rcised.  ranties  coiuUtions  precedent,  iu  view  of    thia 

Pel- to -manoe  of  warrauty  excused:   See  provision  uf  the  code. 
an  in '.t resting  and  suggestive  discussion  of  this 

2G10.  What  ads  avoid  the  policy. 

Skc.  2G10.  The  violation  of  a  material  warranty,  or  other  material  provisiou 
of  a  polifY,  on  the  part  of  either  party  thereto,  entitles  the  other  to  rescind. 

Hescinding  policy. — "This  is  simY)ly  the 
ordiii.i'-y  rule  in  the  rescission  of  contracts 
— a  tailnre  to  perform  by  one  is  a  failure  of  con- 
sideration to  the  other  contracting  p.'.rty:  See 
fees.  io8S,  1GS9,  ante,  and  notes:"  Commis- 
eioiif  ns'  note. 

This  section  distinguishes  between  material 


and  immaterial  warranties.  Heretofore  all 
\va!Tan tics  were  deemed  material.  'I'he  insurer 
can,  liowcver,  protect  himself,  under  section 
2G11,  infra,  by  declaring  in  the  policy  that 
viohition  of  an  immaterial  warranty  will  avoid 
the  contract. 


2Gil.    PoUcy  may  provide  for  avoidance. 

Sr,c.  2611.  A  policy  may  declare  that  a  violation  of  specified  provisions 
thereof  shall  avoid  it,  otherwise  the  breach  of  an  iminateriiil  provision  does  nob 
avoid  the  policy. 

2612 .    r>ri  'ach  w  ilJio  u  t  fraud. 

Sec.  2G12.  A  breach  of  warranty,  without  fraud,  mei'ely  exonerates  an  insurer 
from  the  time  that  it  occurs,  or  where  it  is  broken  in  its  inception,  prevents  tha 
policy  from  attaching  to  the  risk. 

Breach  of  warranty  v^^ithout  fraud. — If 

the  Marrauty  was  i)roIien  at  its  iacep  ion  with- 
out any  frautl  on  the  part  of  the  insured,  lie  is 
entitled   to  a  return  of  the  premium:  See  sec. 

2610,  ],nst. 

V/aiver  of  forfsiture.— That  the  insured 


may  waiv-e  a  l)rea'jh  of  tlie  conditions  of  a  pol- 
icy, and  this  wifc!iout  any  further  agreement 
therefor,  see  TUhh  v.  (Hea  FalU  In.-:.  Co.,  81 
N.  Y.  410,  containing  a  concise  summary  of  tho 
law  of  New  York  state. 


ARTICLE  YIII. 

2616.    When  premium  ift  earned. 

Sec.  2G1(j.     An  insurer  is  entitled  to  payment  of  the  premium  as  soon  as  the 
thing-  insured  is  exposed  to  the  peril  insured  agaiu.st. 


Commencement  of  risk.— For  construc- 
tions of  the  words  "  at  and  from  "  in  a  ]iolicy 
of  marini!  insurance,  frce  Patrick  v.  Ludloii\ 
2  Am.  Dec.  \?,{^•,  (larr'njnes  v.  Coxe,  Id.  433; 
Tay'or  v.  Loivrll,  .">  id.  14!;  D''hlniii  v.  Orenu 
/«.-).  Co.,  28  Id.  24',;  Mar/iav.  Fi-^hiu;/  Iii>i.  Co,, 
3-  Id.  2"20.  ^Vllen  vessel  deemed  to  be  at  sea: 
iroor^  V.  X.  E.  Ills.  Co.,  7  LI.  IS-2;  IJowpu  v. 
JIo}>e  fiis.  Co.,  ^2  id.  2i:>.  A  polic}'  which  is 
to  talvc!  effect  from  the  happening  of  a  paniou- 
lar  c\ent,  contemph.tcd  by  the  policy  to  be  at 
a  future  time,  but  wliicli  has  already  happened. 


still  will  hold  the  insurers:  Cobh  v.  N.  E.  M. 
M.  Ills.  Co.,  C>  Uray,  102;  and  compare  Mauly 
V.  United  Murine  etc.  Co.,  G  Am.  Dec.  40.  In- 
surance on  bullion  and  treasure  to  be  la.len  at 
certain  named  poi'ts  includes  treasure  di'livercd 
by  passenger  at  s^■a:  \V.  F.  tt  Co.  v.  Pacific 
Lis.  Co.,44Cal.  ;yJ7. 

Receipt  iu  policy,  liow  far  conclusive  of 
p^.ymcnt:  See  sec.  2",08,  ante. 

in-jtallniont  paymaut  of  premiums  in  life 
jiolicies  under  peculiar  terms  thereof ;  See  i/ow- 
ard  V.  Cont.  L.  Ins.  Co.,  48  Cal.  221). 


2617.    Fit  turn  of  premium. 

Sec.  2017.  A  person  insured  is  entitled  to  a  return  of  premium  paid  aa 
follows: 

1.  To  the  whole  premium,  if  no  part  of  his  interest  in  the  thing  insured  be 
exposed  to  any  of  the  perils  insured  against; 

2.  Where  the  insurance  is  made  for  a  definite  period  of  time,  and  the  insured 
surrenders  his  jwlicy,  to  such  proportion  of  the  premium  as  corresponds  with 
the  unexpired  time,  after  deducting  from  the  whole  premium  any  claim  for  loss 
or  damage  under  the  policy  which  has  previously  accrued.  [AineiHhnent^, 
approved  March  30,  1874;  Amendments  1873-4,  25G;  took  effect  July  1,  1874.] 

439 


§§  2618-2622  OBLIGATION'S.  [Div.  Ill,  Part  IV, 

Return  of  premium. — This  section  as  origi-  law  elsewhere,  and  is  manifestly  unjust.     Un- 

nally  a  loptud  read:   "A  jierson  insured  is  en-  der  it  the  insured,  meeting  with  .a  luss  in  the 

titled  to  a  return  of  premium  paid,  or  a  rata-  first  moiitli  of  a  policy  for  a  year,  con'd  recover 

Lie  proportion  thereof,  if  no  pait  of  ids  interest  not  only  the  loss,  but  eleven  twe'f^hs  of  the 

in  tl'e  tiling  isisured   is  exi)i)seil  to  any  of  the  premium,    thus  depriving   the  insurer  of  tiiat 

perils  insiu'od  against;  or  where  the  iasurance  pro|)ortion  of  the  consideration  for  wliioli   he 

is  ma<le  for  a  definite  period   of  time,  if  it  is  assumed  the  risls." 

not  cxi)0--ed  to  sueii  peril  for  the  whole  of  that  See   the    discussion    of    ibis    suljject    in    2 

time."    la  nroposinj:;  the  above  amendment,  the  Arnould  ou  Ins.  lOOi  et  seq.;  May  on  Ins.,  sec. 

code   examiners    said:    "The    present   section  5G7. 

dues  not  conform  to  the  general  mle  and  the  Rsturn  for  fraud:  See  sec.  2G19,  infra, 

2G18.    Wiien  return  not  allowed. 

Sec.  2G18.  If  a  peril  insured  a^fainst  lias  existecl,  and  the  insurer  has  been 
liable  for  any  period,  however  short,  the  insured  is  not  entitled  to  return  of 
premiums,  so  far  as  that  particular  risk  is  concerned.  [Amcadnv^nt,  approved- 
March  30,  1874;  Amendments  1873-4,  253;  took  effect  July  1,  1874.] 

No  return  of   premium  when   risk   at-  one  never  attaches,  the  premium  on  such  risk, 

taches:  Fulton  w  Lancaster  Ins.  Co.  ,7  Ohio,  if  ascertainable,  may  be  recovered  baclL:  Buu- 

32.5;  Mrrchnnts'  In-i.  Co.  v.  Clapp,  H  Pick.  56.  you  on  Life  Ins,  95. 
If  the  premium  is  applicable  to  two  risks  and 

2319.    Return  for  fraud. 

Sec.  2G19.  A  person  insured  is  entitled  to  a  return  of  the  pi'emium  when  the 
contract  is  voidable,  on  account  of  the  fraud  or  misrepresentation  of  the  insurer, 
or  on  account  of  facts  of  the  existence  of  which  the  insured  vras  ignorant  with- 
out his  fault;  or  when,  by  any  default  of  the  insured  other  than  actual  fraud, 
the  insurer  never  incurred  any  liability  under  the  policy. 

Return  for  fraud. — The  premium  cannot  be  8  Mass.  335.    In  Fl^libfckv.  Phcenix  Insurance 

recovered,  although  the  contract  is  void,  where  Co.,  5i  Cal.  422,  where  the  insured  sou:;ht  to 

the  fraud  was  committed  by  the  insured:  Him-  avoid   the   contract  on  the  ground   of  the  in- 

ely  V.  S.  C.  Inx.  Co.,  12  Am.  Dec.  023;  Waters  surcd's    deception,    the    court    thought     tiiat 

V.Allen,  5  Hill,  421;  Frifsmoatfi  v.  Afiawani  the  whole  premium  ought   to  have    been   re- 

Mut.  Ins.  Co.,  10  Gush.  5S7;  JIo//t  v.   Gilman,  turned. 

2620.  Over-insurance  by  several  insurers. 

Sec.  2G20.  In  case  of  an  over-insurance  by  several  insurers  the  insured  is 
entitled  to  a  ratable  return  of  the  premium,  proportioned  to  the  amount  by 
Avhich  the  aggregate  sum  insured  in  all  the  policies  exceeds  the  insurable  value 
of  the  thing'  at  risk. 

Double  insurance  defined:  See/ios^,  sec.  2G41. 

2621.  Contribution. 

Sec.  2G21.  When  an  over-insurance  is  effected  by  simultaneous  policies,  the 
insurers  contribute  to  the  premium  to  be  returned  in  proportion  to  the  amount 
insured  by  their  respective  policies. 

Contribution  in  cnses  of  double   insur-  in  this  and  in  the  two  subsequent  sections,  was 

anoe:  S>e  pos'^  sec.  2o42,  and  note.  suggested  to  the  commission  rs  by   t!ie   doubt 

Roturn   of   premium. — The  necessity   for  expressed  iu  2  Parsons  on  Maritime  Law,  191, 

«omc  delinite  rules  upon  this    subject  where  192. 
tliere  is  an  over-insurance,  such  as  are  embodied 

2622.  Proportionate  contribution. 

Sec  2G22.  When  an  over-insurance  is  effected  by  successive  policies,  those 
only  contribute  to  a  return  of  the  premium  who  are  exonerated  by  prior  insur- 
ances from  the  liability  assumed  by  them,  and  iu  proportion  as  the  sum  for 
which  the  premium  was  paid  exceeds  the  amount  for  which,  on  account  of 
prior  insurance,  they  could  be  made  liable. 

440 


TlTLir.  XI,   ClIAP.   I.] 


iN^uiiAXc:^  IN  gi:nepu1L- 


g§  -202(5-2028 


ARTICLE  IX. 


LOSS. 


2.G2.G.    Perils,  remote  and  proximate. 

Sec.  2G2G.  An  insurer  is  liable  for  a  loss  of  which  a  peril  insm*ed  a.'T'aiust  wag 
(he  proximate  cause;  althou^-h  a  peril  not  contemplated  by  the  contract  may 
have  been  a  remote  cause  of  the  loss;  but  he  is  not  liable  for  a  lofis  of  which 
the  peril  insured  against  was  onlj'  a  remote  cause. 

Negligeuoe  of  insured:  See  sec.  2029,  infra,     ford  Ins.  Co.,  13  111,  GIG;  Brculij  v.  N.  W.  Ins. 


and  note. 

Perils  of  the  sea,  what  inclnderl  in  this 
expr-cssioii:  See  the  note  to  sec.  2G5.j;  see  an 
enumeratiiin  of  what  are  the  sources  of  "  per- 
ils at  sea,"  in  the  case  of  common  carriers,  sec. 
2199,  nnle. 

Perils,  remote  and  prosimate. — The  rule 
is  general  and  applicable  to  all  kinds  of  insur- 
ance, that  for  lossbs  arising  directly  and  imme- 
diately from  perils  insured  against  the  insurer 
is  lialjle,  wliilo  as  to  losses  to  whicli  such  a 
peril  (inly  remotely  contributed  the  insurer  is 
not  rospnnsiblc:  Brady  v.  North-uyslcrn  /ns. 
Co.,  11  Mich.  425;  Case  v.  Hartford  Ins.  Co., 
13  111.  C7G;  Jlilliery.  Allegheny  JInt.  Ins.  Co., 
3  Pa.  St.  470.  For  illustrations  of  the  rule  in 
cases  of  marine  insurance,  see  the  note,  "Perils 
of  t'.ie  Sea,"  to  sec.  2Co5,  post. 

Fire  insurance,  ivater. — In  lire  insurance  it  is 
a  rule  that  the  policy  covers  losses  by  water 
used  in  extinguishing  the  fire:  Talamon  v. 
I  fame  Ins.  Co.,  16  La.  Ann.  42G;  Gr'isek  v. 
Crescent  Ins.  Co.,  19  Id.  297;  Ind-pnidevt  M.  I. 
Co.  V.  Aijnev),  34  Pa.  St.  96;  Lewis  v.  Sj)rin(j- 
Jield  /ns.  Co.,  10  Gray,  159. 

Thrfl. — It  lias  been  further  held  that  theft  or 
other  loss  wliic'.i  takes  place  while  the  insured 
goods  are  Iv.ing  removed  from  the  tiireatening 
peril  to  a  place  of  safety  is  covered  by  t!ie 
policy:  Willardlv.  Maine  Ins.  Co.,  40  Me.  200; 
White  V.  I'e/nMicIns.  Co.,  57  Me.  91 ;  Xnnnnrl; 
V.  Liverpool  etc.  Ins.  Co.,  30  Mo.  100;  Lelberv. 
Liverpool  etc.  Ins.  Co.,  6  Bush,  G39;  Bnidy  v. 
N.  W.  Ins.  Co.,  1 1  Mich.  425;  Lewis  v.  Sprinj- 
field  etc.  Ins.  Co.,  10  Gray,  154;  and  see  sec. 
2o27,  iifra.  In  such  case,  to  warrant  the  re- 
moval and  to  render  the  insured  liable  for 
damage  resulting  therefrom,  the  danger  must 
be  iuuniuent,  and  such  as  would  cause  an  ordi- 
narily prudent  man  to  adopt  such  means  for 
the  preservation  of  his  property:  Case  v.  1 1  art- 


Co.,  supra. 

]jiijldnin(j  which  occasio;is  combustion,  from 
which  a  loss  ensues,  is  within  the  ordinary  pol- 
icy against  lire;  otherwise  v>!icre  no  ignition 
occurs:  Kuniiston  v.  Merrimar  Ins.  Co. ,40  Am. 
Dec.  193;  Bahccckv.  Mont /o/nrry  /ns.  Co.,  4  N. 
Y.  323;  Scripture  v.  Lowell  Ins.  Co.,  10  Gush. 
360;  Andrews  v.  Union  M.  I.  Co..  37  Me,  256. 

Explosion. — In  fire  policies  the  cli.-stiuclion 
seems  to  be  the  same  in  the  case  of  explosion 
as  of  loss  by  lightning.  If  the  exi'losion  re- 
sults in  fire  which  causes  loss,  tlio  policy  at- 
taclies:  Waters  v.  Merchants'  Louisville  Ins. 
Co.,  II  Pet.  213;  Scripture  v.  Lowll  /ns.  Co., 
10  Gush.  35G;  Imt  it  does  not  attach  where  the 
loss  arises  simply  from  the  concussion  without 
fire:  CidiaUero  v.  Home  ISlat.  Ins.  Co.,  15  La. 
Ann.  217;  or  generally  where  no  ignition  fol- 
lows: Millandon  v.  N.  0.  Ins.  Co.,  4  La.  Ann. 
15:  lifar.yv.  Sun  Ins.  Co.,  14  Id.  2G4;  St.  Jolin 
V.  American  etc.  Ins.  Co.,  11  N.  Y.  516. 

Where  the  policy  provides  that  the  insurer  ia 
not  to  be  liable  for  any  loss  which  occurs 
through  explosion,  it  exem])ts  him  I'rom  respon- 
sibility for  loss  by  fire  occasioned  liy  an  explo- 
sion: Br/t/i/s  V.  ^V.  A.  etc.  Ins  Co.,  53  N.  Y. 
44G;  Union  etc.  Ins.  Co.  v.  Foote,  22  0!'-io  St. 
340;  Ins.  Co.  v.  Tweed,  7  Wall.  44.  Yet  un- 
der such  policy  the  insurer  is  I'abic  if  the  ex- 
plosion was  the  result  of  a  lire  already  burning: 
Briijgs  V.  y.  A.  etc.  /lis.  Co.,  suprn;  Unio7i 
Ijis.  Co.  V.  Foote,  supra;  Waters  v.  Li.  JMer. 
/ns.  Co.,  11  Pet.  255;  S''ri/)ture  v.  /jon-ell  Ins, 
Co.,  10  Gush.  357;  Millandon  v.  y.  O.  Ins.  Co., 
4  La.  Ann.  15. 

IJeslroyiii'i  to  save  o'her  propert;!. — Where 
buddings  are  blown  up  by  order  of  liic  munici- 
pal authorities,  to  prevent  the  siweadiiig  of  a 
eonfiagi'ation,  tiic  insurers  are  liable:  City  Fire 
Ins.  Co.  V.  Corliss,  40  Am  Dec.  258,  and  note; 
Phillips  V.  Protection  /ns.  Co.,  14  51o.  220. 


2G27.   Z/O.s.s  incurred  in  rescue  from  peril. 

Sec.  2()"27.  An  insurer  is  liable  where  the  thing-  insured  is  rescued  from  a 
peril  insured  a^fainst  that  would  otherwise  have  caused  a  loss,  if  in  the  course 
of  such  rescue  the  thing  is  exposed  to  a  peril  not  insured  against,  which  per- 
manently deprives  the  insured  of  its  possession,  in  whole  or  in  part;  or  where  a 
loss  is  caused  by  efforts  to  rescue  the  thing  insured  from  a  jjeril  insured 
against. 

L3S<5  V7h'l3  rescuing;  insured  property. —  of  property  removed  to  prevent  its  being 
For  decisions  bearing  upon  the  subject  of  theft     burned,  see  the  note  to  the  previous  section. 

2028.    Excepted  perils. 

Sec  2(;2o.     Where  a  peril  is  specially  excepted  in  a  contract  of  insurance,  a 

loss  which  would  not  have  occurred  but  for  such  peril  is  thereby  excepted; 

aUiou.-li  the  immediate  cause  of  the  loss  was  a  peril  which  was  not  excepted. 

E^ioe  >ted  perils  contributing  to  lo^";. —  riisu'.ting  in  a  fire  wnicn  occasions  loss,  in  the 
See  the  caae  of  explosion  exceptuil  from  policy     note  to  sec.  2o2o,  ante. 

441 


|§  2629-2034 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


2629.    Exoneration  of  insurer. 

Sec.  2G29.  An  insurer  is  not  liable  for  a  loss  caused  by  tlie  •willful  act  of  the 
insured;  but  lie  is  not  exonerated  bj  the  negligence  of  the  insured,  or  of  hia 
agents,  or  others.  [Amendment,  approved  March  30, 1874;  Amendments  1873-4, 
25G;  took  effect  Jabj  1,  1874.] 


Negligease  cf  insured. — ilere  negligence 
of  tlie  iusiiroil  or  of  his  agents,  not  aniountin-^ 
to  fraud,  will  not  release  the  insurer  from  li- 
ability; loss  occasioned  by  negligence  is  one  of 
the  iiriucipal  risks  insured  against:  Perr'ui,  v. 
Protection  Ins.  Co.,  33  Am.  Dec.  7-S;  67.  Louis 
Inn.  Co.  V.  Glasi/o7v,  41  Id.  CGI;  Ilcudertfoii  v. 
Western  Marine  Ins.  Co.,  43  Id.  170;  Gates  v. 
I/adlsiu  fns.  Co.,  5  N.  Y.  409;  JSlatheius  v. 
Howard  Ins.  Co.,  13  Barb.  234;  Ilipids  v.  Sche- 
liectad;!,  IG  Id.  119;  St.  Jolin  v.  American  Ins. 
■Co.,  1  Duer,  371;  Dulinan  v.  Monmouth  Ins. 
Co.,  35  Me.  227;  Enterprise  Ins.  Co.  v.  Parisoi, 
^.~)  Ohio  St.  35.  For  other  applications  of  the 
rule,  lirst  to  tire  Dolicies,  see  Gates  v.  Madison 


Co.  M.  I.  Co.,  5  N.  Y.  4G9;  Gove  v.  Furm^'.rs' 
Ins.  Co.,  48  N.  H.  41;  Johnson  v.  Berkshire  M. 
F.  I.  Co.,  4  Allen,  3SS;  and  second  to  marne 
policies,  see  American  Ins.  Co.  v.  Bryan,  20 
Wend.  583;  Patapsco  Ins.  Co.  v.  Coulter,  3  Pet. 
222;  Hale  v.  Washington  Ins.  Co.,  2  Story,  17G; 
and  McMillan  v.  Union  Ins.  Co.,  33  Am.  Deo. 
112.  holding  that  loss  immediately  arising  from 
neglect  to  employ  pilot  could  not  be  lecovered 
from  the  insurer;  and  see  the  note  thereto. 

Negligence  so  great  as  to  amount  to  ]iositive 
misconduct  releases  the  insurer  from  liability 
for  loss  resulting  therefrom:  Citizens'  Ins.  Co. 
V.  Marsh,  5  Pa.  St.  387;  May  ou  lus. ,  sees,  407- 
411. 


ARTICLE  X. 

NOTICE     OF    LOSS. 

2633.    Inf^itrer  exonerated  by  failure  to  give  notice  of  loss. 

Sec.  2G33.  In  case  of  loss  upon  an  insurance  against  fire,  an  insurer  is  exon- 
erated, if  notice  thereof  be  not  given  to  him  by  some  person  insured  or  enti- 
tled to  the  benefit  of  the  insurance,  without  unnecessary  delay.  [Amendment, 
approved  April  30,  1874;  Amendments  1873-4,  25G;  took  effect  Julj/  1,  1874.] 

Notice  of  loss. —  The  original  section  applied     conveys  the  necessary  information:  Plx  v.  3Tut. 
to  all  insurances.     By  the  amendment  of  1874 
the  words  "upon  an  insurance  against  fire" 
were  introduced. 

7^i}ne  aul/orm. — If  the  time  is  specified  in  the 
policy  withiu  wliich  notice  muHt  be  given,  the  in- 
sured nmst  comply  therewith:  O'I'eilli/v.  Guar- 
dian Ins.  Co.,  GO  JST.  Y.  109;  Davis  v.  Davis,  40 
Me.  232.  The  expressions  "forthwith,"  "as 
iiooa  as  possible,"  "immediately,"  used  in  pol- 
icy as  indicating  when  notice  of  loss  should  be 
given,  mean  that  it  must  be  given  within  a 
rnasonable  time,  without  unnecessary  delay: 
Kinijstey  v.  N.  E.  Ins.  Co.,  8  Cash.  393;  Peoria 
Ins.  Co.  V.  Lewis,  18  111.  553;  Edwards  v.  Balti- 
more /us.  Co.,  3  Gill,  17G;  Schenck  v.  Mejxer 
Co.  M.  Iiis.  Co  ,  4  Zab.  447;  West  Branch  Ins. 
Co.  V.  11,'lfenstein,  40  Pa.  St.  239.  Tliis  is 
ordinarily  a  (juestion  for  the  jury:  See  the  same 
cases;  O'Brien  v.  Phcenir  Ins.  Co.,  70  N.  Y.  459; 
Continental  Ins.  Co.  v.  Lippold,  3  Neb.  291. 

The  form  of  the  notice  is  immaterial  if   it 


/;^s•.  Co.,  20  N.  II.  198;  Barbr  v.  Phosnix  Ins. 
Co.,  8  Johns.  397.  It  need  not  be  in  writing 
unless  so  stipulated:  Killips  v.  Putnam,!^ ire  Ins. 
Co.,  33  Wis.  472. 

By  wh-tm  given. — Notice  may  be  given  by  an 
agentof  theinsureroninformation  received  I'rotn 
the  insui-ed:  West  Branch  Ins.  Co.  v.  Ilclfenstein, 
40  Pa.  St.  239;  or  by  one  acting  at  the  request 
of  the  insured:  Stimson  v.  Monmouth  Ins.  (Jo., 47 
Me.  379;  or  by  an  assignee  of  tlie  policy:  Cor- 
nell V.  Lero;/,  9  Wend.  103;  or  l)y  the  real  party 
in  interest  in  any  case:  Watertoicn  Ins.  Co.  v. 
Grove r,  41  Mich.  131. 

To  whom  given. — Where  the  policy  designates 
the  person  to  whom  notice  is  to  l>e  given,  that 
requirement  must  be  observed:  Patrick  v. 
Farm-^r.-i'  //iv.  Co.,  43  N.  II.  G21;  Inland  Ins. 
Jj  Dep.  Co.  V.  Staufer,  33  Pa.  St.  397. 

Pa7m3nt  of  loss  may  be  conditioned  upon 
the  giving  of  notice  and  proof  of  loss:  Doyle  v. 
Phoenix  Ins.  Co.,  44  Cal.  204. 


2G34.    Preliminary  proofs. 

Sec  2G:>4.  When  preliminary  proof  of  loss  is  required  by  a  policy,  the 
insured  is  not  bound  to  give  such  proof  as  would  be  necessary  in  a  court  of 
justice;  but  it  is  sufficient  for  him  to  give  the  best  evidence  which  he  has  in  his 
j)ower  at  the  time. 

Preliminary  proof  of  loss. — The  notice  is    proofs  are  admissible  in  an  action  on  the  policy 

not  proof;  and   the  omission  to  notify  the  in-     to  sliow  a  compliance  with  t'le   conilitions  of 


sured  that  such  notice  is  not  proof  is  no  waiver 
of  the  want  of  ]>roof:  C licilly  v.  Guardian  M. 
L.  I.  Co.,  09  N.  Y.  109.  With  respect  to 
what  is  a  sufficient  compliance  with  tlie  terms 
of  the  policy  in  regard  to  proof,  see  a  very 
satisfactory  statement  of  principles  involved 
in  Bum.'i'ead  v.  Dividend  M.  I.  Co.,  12  Id.  81, 
and  a  discussion  of  the  subject  in  extcnso  in 
May  on  Ins.,  sees.  4G5  et  8ec[.     Preliminary 


the  policv:    Williams  v.  Ilart/ord   F.  Ins.  Co., 
54  Cal.  442. 

Waiver  of  preliminary  proofs  of  loss  will 
be  presumed  from  acts  of  the  insurer,  render- 
ing the  production  thereof  useless,  or  wlicre  he 
so  conducts  himself  cas  to  induce  a  belief  on  the 
part  of  t!ie  insured  that  no  proofs  will  I'O  re- 
qu  red:  Williams  v.  Hartford  Ins.  Co.,  54  Cal. 
442. 


442 


Title  XI,  Chap.  I.] 


TXSURxVNCE  IN  GENERAL. 


§§2635-2641' 


2635.     Waivers  of  ijcft'c/s  in  no/ ice,  cfe. 

Sec.  2(joo.  All  uefeci-s  in  a  uotice  of  loss,  or  in  preliminary  proof  tliereof, 
wliicli  the  insured  ujigbt  remedy,  and  which  the  insurer  omits  to  specify  to  him, 
without  unnecessary  delay,  as  grounds  of  objection,  ai'e  Avaived. 

Waiver  of  defects  in  notice. — Decisions     hy  tlie  court  of  appcMls  of  New  York  is  thus 


snppoiting  the  textl'.iat  defects  in  preliminary 
proof  are  waivcil  Ly  Oiuitting  to  olijeet  to  them 
epiciriC'illy  without  unnecessary  dc;hiy  are: 
Mi-Mdster.'i  v.  WeJche^ler  Co.  21.  I.  Co.,  ^5 
\Veua.  .379;  Po.s'/?  v.  /Etna  lun.  Co.,  4;!  Barl). 
3Go;  Owen  V.  Fanners'  etc.  Iiis.  Co.,  57  Id.  ry22; 
JLime  Lis.  Co.  v.  Cohen,  '20  (Iratt.  8J.j;  Fire- 
nien's  [,is.  Co.  v.  CrandaH,  .'53  Ala.  9;  Harris 
V.  P/icenir  I/is.  Co.,  3o  Cum.  310. 

The  insurers  having  pointed  out  some  ob- 
jection canuot  aftcrwa^rJs  raise  otliers:  Phlki- 
delphin  v.  Profc'-tioii  Ins.  Co.,  14  Mo.  '220.     So 


clearly  stated  by  Chief  Jii'^tice  Cliurcli: 
"E/ery  consideration  of  ])ul»lic  ])oliey  de- 
mauds  that  insurance  com;)auies  should  be 
reijuircil  to  deal  with  customers  with  entire 
fairness  and  frankness.  They  may  refuse  to 
pay  witliout  specii'yiMg  any  ground,  and  insist 
upon  any  available  ground,  but  if  lliey  p'ant 
tiiemselvcj  upon  a  spoci.ied  defense,  and  so 
notify  tlie  assured,  tlu.'y  s'lould  not  be  per- 
mitt'.'d  t<j  retract  after  the  latter  has  acted 
upon  their  position  as  announced  an  1  incurred 
expenses  in  consequence  of  it:"  Brink  v.  Ilan- 


also  ul)jection3  to  the  nature  and  kind  of  proof  over  F.  I.  Co.,  SO  N.  Y.  lOS 

are    waived    by    I'efusal    to    pay    upon    other  Defects  in  the  jiroof,  which  could  not  liave 

grounds:  Kt.    Lonis  /.v.s\    Co.  v.  Kj/le,  49  Am.  been  cured  iiad  objection  been  made  to  them, 

l)ec.  74;    Thwin;/  v.  Ol.   W.  /»,.<.  (n.,  1 1 1  Alass.  are  not  waived  by  an  omission  to  specify  them 

110.     A  rcfnsil   to  pay  ija'-ed  on  t!ic  merits  of  as    a   grounil    for   refusal    to   pay:   Pntri'k   v. 

the  claim  is  a  vraiver  of  objections  to  prelin.i-  Farmer-^'  /ii.^.  Co.,  43  N.  II.  o21;  .S7.  Louis  Iii.'i. 

nary  proofs:  Mr.Unsters  v.   WeMchester  Co.  M.  Co.  v.  Kyle,  11  Mo.  '27S 


[.  Co.,  s;ipra;  U'e.it  Uorhiniilcum  Co.  v.  Shc('l>i, 
26  Gratt.  8.)4;  Uathchonc  v.  Cii>i  Fire  Lis.  Co., 
Z\  Conn.  194.  And  a  genei-al  refusal  to  pay, 
without  sratin^;  any  reasons,  dispeu'^es  with 
the  necessity  of  preliminary  proof:  Wi  liaiif- 
hiirij  Lm.  Co.  v.  Cury,  83  111.  433;  Aurora  Li-t. 
C >.  V.  Kninirli,  D-;!  Mich.  239;  Flarrimnn  v. 
Qyenlntf.  Co., 49\Vis.  71 ;  Mayonlns.  4li8,  409. 
The  distinction  made  in  a  late  case  deculed 


Papers  used  iu  ))reliminarv  ]iroof  of  death 
are  prima  facie  evidence  of  all  the  f  icts  stated 
therein,  and  if  the  venlict  of  the  coroner's  jury 
produced  to  prove  death  recites  death  hy 
suicide,  that  recital  must  be  oVL-rconie  by  the 
party  seelcing  to  recover  on  tlio  policy:  Wattker 
v.  Mat.  L.  Ins.  Co.,  3  West  Coast  Ui!p.  3oS. 

See  a  note  in  8  lus,  L.  J.  U.iJ,  upon  tlie  sub- 
ject generally. 


263G.    Waiver  of  dclm/. 

Sec.  2C3G.  Delay  in  the  presentation  to  an  insurer  of  uotice  or  proof  of  loss 
is  waived,  if  caused  by  any  act  of  his,  or  if  he  omits  to  make  objection  promptly 
and  specifically  upon  that  ground. 


iCelay  "waived  if  not  objected  to. — "  If  a 

com]:any  iiitends  to  avail  itseif  of  the  technical 
objection  tiiat  t!ie  proofs  arc  not  filed  in  time, 
oommcn  f.jiness  requires  tiiat  it  should  refuse 
to  leceive  them  on  that  ground,  or  at  least 
prom[)i.ly  notify  the  assured  of  their  determina- 
tion, otherwise  thcfibjection  should  be  legardcd 
as  waived:  "  Brink  v.  Hanover  F.  I.  Co.,  bO  N. 


Y.  108.  See  this  same  case  in  70  Id.  594, 
wlicre  a  different  doctrine  was  a[iparently  an- 
nounced. Consult  decisions  iu  note  to  sec. 
20-')  '>,  ■•'upra. 

Delay  occasioned  by  the  act  of  tlic  insurer 
cannot  be  objected  to  by  him:  Cornell  v.  Z« 
Hoy,  9  Wend.  1G3. 


2637.    Cerfijicalc,  when  dif<penmd  ivilh. 

Sec.  2G37.  If  a  policy  requires,  b}'  way  of  prelimiuarj''  proof  of  loss,  the  cer- 
tiiicate  or  testimony  of  a  person  other  than  the  insured,  it  is  sufficient  for  the 
insured  to  use  reasonable  diligence  to  procure  it,  and  in  case  of  the  refusal  of 
such  person  to  give  it,  then  to  furnish  reasonable  evidence  to  the  insurer  that 
such  refusal  was  not  induced  by  any  just  grounds  of  disbelief  iu  the  facts 
necessary  to  be  certified. 

False  proofs:  See  Pen.  Code,  sec  549. 


ARTICLE  Xr. 

DOUBLE    INSUU.\NCE. 

2641.   Double  insurance. 

Sec.  2(j41.     A  double  insurance  exists  where  the  same  person  is  insured  by 
several  insurers  separately  iu  respect  to  Vai  sime  subject  and  int3rest. 


Double  iii5urau33.— It  has  been  deci  1«  I 
tbatdo  lb  o  insurance  docs  not  rerp.xire  tiiao  Liu 
same  person  should  bo  twiceinsur^d.  Iu  //  i.n- 
Ins.  Co.  v.  Bciitiniore  Lis.  Co.,  lOJ  U.  S.  oli. 


w\\QrQ  ware'i ousamsu  an  1  als  >  otliers  who  had 
m  ide  a  Ivaaces  oa  tiie  g  >o  Is  in  the  waj'ehouso 
i)  J...1  took  out  policies  0.1  tlie  goods,  ir,  was  pro- 
II  >aaoed  acaseuf  doaole  lusaraucc.     JMorigagor 


4  :? 


|§  2642-2647 


OBLIGATIONS. 


[Div.  in,  Part  IV, 


and  mortgagee  insuring  thoir  respective  in- 
terests ilo  not  create  a  double  insurance:  Wood- 
hiini  U'liik  V.  Ckar/.er  Oak  I/i'f.  Go.,  31  C  mn, 
617:  Ifoll>ro>k  v.  Am.  F.  Ins.  Co.,  1  Cart.  19:5. 
Otli3ri;i5uraii:;3.  — Toconstitutesncli  "other 
insurance"  as  an  applicant  is  baund  to  disclose 
on  pain  (»f  forfeiting  his  policy,  tlie  insurance 
must  be  on  the  same  insurable  interest,  and 
must  be  for  tlie  beueiit  of  such  applicant:  ^liia 


F.  T.  Co.  V.  Tjihr,  30  Am.  Dec.  90;  Rowley  v. 
Empire  In.i.  Co.,  3  Keyes,  5'/.);  Mc Mauler  v. 
President  /iis.  Co.  N.  A.,  55  Barb.  23;{;  PU.ney 
V.  (Hen  Fi/li  //IS.  Co.,  Gl  Barb.  312.  If  the 
agsntof  the  eom')any  knew  of  other  insurances 
at  t'le  time  of  the  insurance,  sucli  inforinatiou 
will  be  deemed  within  the  kmwle  Ige  of  the 
company,  and  the  policy  will  be  held  valid: 
Fiahbeck  v.  P/wenix  I  lis.  Co.,  54  Cal.  422. 


2842.    Double  insurance  contribution. 

Seo.  2312.  Ill  case  of  double  insurance,  the  sereral  iusureraare  liable  to  pay 
losses  thereon  as  follows: 

1.  In  fire  insurance,  each  insurer  must  contribute  ratably  towards  the  loss, 
without  regard  to  the  dates  of  the  several  policies; 

2.  In  marine  insurance,  the  liability  of  the  several  insurers  for  a  total  loss, 
■whether  actual  or  constructive,  where  the  policies  are  not  simultaneous,  is  in 
the  order  of  the  dates  of  the  several  policies;  no  liability  attaching  to  a  second 
or  other  subsequent  policy  except  as  to  the  excess  of  the  loss  over  the  amount 
of  all  i^revious  policies  on  the  same  interest.  If  two  or  more  policies  bear  date 
upon  the  same  day,  they  are  deemed  to  be  simultaneous,  and  the  liability  of 
insui'ers  on  simultaneous  policies  is  to  contribute  ratably  with  each  other.  The 
insolvency  of  any  of  the  insurers  does  not  affect  the  proportionate  liability  of 
the  other  insurers.  The  liability  of  all  insurers  on  the  same  marine  interest  for 
a  partial  or  average  loss  is  to  contribute  ratably.  [Amendment,  approved  March 
SO,  1874;  Amendments  1^1^-A,  257;  took  effect  July  1, 1874.] 

Contribution  in  case  of  doubls  insuran  33. 

The  original  suction  read:  "Ii  case  of  dj.iblj 
insurance,  the  insured  may  claim  payment  of  a 
loss  from  any  one  of  the  insurers,  who,  on  i)ay- 
ing  it,  may  require  the  others  to  contribute 
ratably  thereto."  In  proposing  the  above 
amendment,  tiie  coile  examiners  explained: 
"The  present  section  works  unjustly  by  en- 
abling the  insured  to  compel  a  solvent  uu<ler- 
v.'riter  to  insure  an  insolvent  one,  though  lie 
has  received  no  premium  for  that  risk,  and  has 
not  even  been  consulted  as  to  the  selection  of 
the  associates  he  is  thus  obliged  to  indorse.  The 
section  as  amended  is  in  c:mforniity  with  the 
law  as  it  exists  <  Iscwhere." 

Subd.  1.  Ratable  contribution. — In  the 
absence  of  any  stipulations  to  the  cinitrary  in 
the  contract  of  insurance,  it  isa  well-recognizeil 
rule  that  the  insured  may  recover  the  entire 
amount  of  his  loss  from  any  one  of  several  in- 


surers, who  must  seek  proportional  reimburse* 
mjut  fro  n  the  other  insurers:  L  ica^^  v.  Jf'jhr- 
son  Int.  Co.,  G  Cjw.  G;]");  Gronie  v.  K>j.  <fc  La. 
/.w.  Co.,  15  B.  Alon.  432;  MHlrm  'onv.  Weste-rt 
M.  d:  F.  Ins.  Co.,  9  La.  32;  Wrr/in  v.  Stjolb 
Ins.  Co.,  18  Pick.  145;  Rdt.  F.  Ins.  Co.  v. 
Lonei/,  23  Md.  20. 

Sabd.  2.  Suocessive  insurers  succes- 
sively liable. — The  lirst  partof  tliis  subdivisioa 
answers  to  what  is  known  in  mai-iue  policies  as 
t!)e  "  American  clause,"  ami  is  discussed  ia 
American  Ins.  Co.  v.  Oriswold,  14  Wend.  501} 
tSca  nen  v.  Loriwj,  1   Mason,  123. 

Su3C3S3iva  insurers,  th3ir  rig'its  and 
liabilidGS. — See  generally  upon  this  questioa 
the  ni)te  to  Alliawe  Assurance  Co.  v.  La,  Ins^ 
Co.,  2S  Am.  Dec.  121. 

liaturn  of  premium  by  suocessivo  Uw 
surers;  See  sec.  2o22,  aiUe. 


AETICLE  XII. 

EEINSURANCE. 

2S46.    Pi>'insurance,  what. 

Sec.  2G4G.  A  contract  of  reinsurance  is  one  by  which  an  insui-er  procures  a 
third  person  to  insure  him  against  loss  or  liability  by  reason  of  such  original 
insurance. 


Rein3-aran:;e  is  not  double  insurance: 

Perkins  V.  .V.  IJ.  Mar.  Ins.  Co.,  12  Mass.  214. 
See  a  brief  sketch  of  the  history  of  reinsurance 
iu  May  on  Ins..  sjc.  10.     From  the  statement 


of  that  author,  it  seems  that  at  one  time  rein- 
surance was  pro'nibited  in  I'^ngland  on  account 
of  tlie  inducements  it  offered  to  speculating  in 
premiums. 


2647.    Dlscloaurei^  required. 

Seo.  2047.     Where  an  insurer  obtains  reinsurance  he  must  communicate  all 
the  representations  of  the  original  insured,  and  also  all  the  knowledge  and 

444 


Title  XI,  Chap.  TI.]  MARINE  INSURANCE.  §§2048-2655 

infonnation  be  possesses,  wlietber  previously  or  subsequently  acquired,  which 
are  material  to  the  i*isk. 
2  Duer  on  Ins.  420. 

2648.  I!('ini<i(  ranee  presiivied  to  he  ognind  liahUUxj. 

Sec.  2G48.     A  reinsurance  is  presumed  to  be  a  contract  of  indemnity  against 
liability,  and  not  merely  against  damage. 

Liability  of  reiiisursr. — Wlien  the  reinsured  Im.  Co.,  4  Daly,  209;    S.  C,  50  N.   Y.   104; 

is  sucil  he  may  notify  the  reinsurer  to  tlefuml,  Eifj'e  lu'i.  Co.  v.  Ijajajette  Iii-<.  C".,  t)  Ind.  443; 

■wlio  wi.l  thence  lie  li.il)le  to  tlie  reinsured  for  X.   V.  Mar.  ///.>(.   Co.   v.  Protection  Ins.  Co.,  \ 

the  auK)unt  of  ;he  recovery  and  costs  not  un-  IStory,  4oS;  20  Uarb.  408. 
necessarily  incurred:   Blaclcstone  v.  AUtmunia 

2649.  Orkjimd  insured  has  no  interest. 

Sec.  2G4:9.     The  original  insured  has  no  interest  in  a  contract  of  reinsurance. 

"  llerhevrath  v.  Am.  Im^.  Co..  3  Barb.  Ch.  03;  any  one  risk  exceeds  one  tenth  part  of  their  cap- 

CarrinijUm  v.  Com..  Fire  Iiu^.  Co.,  1  Dosw.  152.  ital  stock  actually  paid  in,  to  reinsure  such  ex- 

•     *     *     Here,  in  this  code,  by  section  428,  in-  cess.    This  is  dune  for  the  ujore  ample  security 

Burers  (marine  or  tire)  are  reciuired,  whenever  of  the  insured: "  Commissioners'  note. 


CHAPTER  II. 

IMARIXE  INSURANCE. 

"  Rules  respecting  marine  insurance,  which  in  these  provisions,  as  they  are  not  within  the 
are  br.t  applications  of  the  principles  of  inter-  scope  of  a  municipal  statute:"  Commissiouera' 
national  law  to  this  subject,  are  not  embraced     observation. 

Ai;ticle    I.    Defixition  of  Marine  Ixscraxce ^ ., . 2055 

II.       I  N.SCRAELE   IXTEl'.EST 2050 

III.  Concealment 2000 

IV.  Representations 2070 

V,     Implied  Warranties 2681 

VI.  The  Voyage,  and  Deviation 2092 

VII.  Loss 2701 

VIII.  Ap.andonment 2716 

IX.  Measure  of  Indemnwy 2736 

ARTICLE  I. 

DEFINITION   OP   MAEINE   INSURANCE. 

2G55.  3Iarine  insurance,  ichal. 

Sec  2G55.  Marine  insurance  is  an  insurance  against  risks  connected  with 
navigation,  to  wbich  a  ship,  cargo,  freightage,  profits,  or  other  insurable  interest 
in  movable  property,  may  be  exposed  during  a  certain  voyage  or  a  fixed  period 
of  time. 

Perils  of  the  se  ^  are  defined  in  section  2199,  the  voyage.     The  guns,  ammunition,  etc. ,  of  an 

C7i/''%- and  m  the  note  to  Tan /A'r^i  V.  'J'ciij/or,  41  armed  ship  constitute  a  part  of  its  insurable 

Am.  Dec.  281,  the  cases  are  collected  and  cure-  value:  2  Valin.  55;  1  Einerigon,  277. 
fully  classilied.  "Cargo. — This  term  is  used  to  include  goods, 

Q  he  following  note  is  taken  from  that  of  the  wares,  merchandise,  and  property  generady. 
code  couimissiuneis:  "See  1  Arnould  on  Ins.  2;         " Freislitage. — A   policy  on  freightage,   or 

see  also  f-ec.  20U4,  ;'0s<.     For  delinitious  and  in-  freight   as   it    has   heretofore   been  called — see 

formation  on   this  subject  generally,  see  Phil-  note  to  sec.  2()01, /'0.s<— generally,  for  successive 

lips  on  Ins.    1;   1    Arnoukl  on  Marine  Ins.  15;  passages  or  for  a  certain  period,  usually  applies 

■^larshall  on   Marine  Ins.  2;  Di.xon  on   Marbie  t.)  whatever  amount  of  freightage  may  bo  peud- 

lus.  20;  3  Kent's  Com.  25.3.  lug  at  dillercnt  times  successively:    JJui/j  v. 

"  What  is  covered  by  a  policy  on  ship. —  Aki/iii'''  /"K.  Co.,  7  How.  505. 
The  ship  as  a  subject  vl  insurance  includes  the        ''Othsr  iusuraLlo  interests:  See  sec  2546; 

body,    tackle,    apparel,    ordnance,     furniture,  also  sees.  2547-2557,  inclusive." 
boats,  and  whatever  is  necessary  to  equip  it  for 

445 


§§  2G59-2GG9  OBLIGATIONS.  [Div.  HI,  Part  IV, 

ARTICLE  II. 

INSURABLE    INTEUEST. 

2659.  Inf^nrahlc.  interest  in  a  ship. 

Sec.  2G59.  The  ownei'  of  a  ship  has  in  all  cases  an  insurable  interoat  in  it, 
even  when  it  has  been  chartered  by  one  who  covenants  to  pay  him.  its  value  m 
case  of  loss. 

Bottomry  d^fin'sd:  See  pofit,  sec.  3017. 

Rights  of  bottomry  bolder  and  insurer:  See  sec.  3025,  j)ost,  in  note. 

2660.  Interest  7-educed  h>j  bottomry. 

Sec.  2GG0.     The  insurable  interest  of  the  owner  of  a  ship  hj'pothecated  by 
bottonny  is  only  the  excess  of  its  value  over  the  amount  secured  by  bottomry. 
Insurable  interest  generally:  See  sees.  2.54G  et  seq.,  and  notes  thereto. 

2G61.   Freightage,  what. 

Sec.  2GG1.     Freightagfe,  in  the  sense  of  a  policy  of  marine  insurance,  sij^nilies 

all  the  benefit  derived  by  the  owner,  either  from  the  charteriujiT  of  the  ship  or 

its  employiueut  for  the  carriage  of  his  own  f]foods  or  those  of  others. 

"The  word  'freightags'  is  used  throughout  in  which  it  is  here  used:  See  note  to  sec.  2655:" 

this  coilo  instead  of  'freight,'  to  signify  the  hire  Coinniissionors'  note. 

of  a  carrier,  for  the  obvious  reason  that  the  latter         8;ea  discussion  in  Barber  on  Ins.,  sec.  96, 

word  properly  means  the  thing  carried.     Tiie  who  under  this  section  may  be  considered  not 

word  'freightage'  is  given  in  Weljstcr's,   Wor-  an  "owner:"  See  sec.  2355. 
cester's,  and  Bouvier's  dictionaries  in  the  sense 

2662.  Expected  freightage. 

Sec.  2GG2.  The  owner  of  a  ship  has  an  insurable  interest  in  expected 
freightage  which  he  would  have  certaiuly'earned  but  for  the  intervention  of  a 
peril  insured  against. 

Fxpected  freightage. — From    what    time     12th  ed.,  sees.  270,  311;  1  Arnould  on  Ins.  202; 
freightage  may  be  deemed  expected  for  purpose     and  see  next  section, 
of  insurance,  see  tlie  notes  in  3  Kent's  Com., 

2663.  Interest  in  expected  freightage  ivhat. 

Sec  2GG3.  The  interest  mentioned  in  the  last  section  exists,  in  the  case  of  a 
charter-party,  when  the  ship  has  broken  ground  on  the  chartered  voj'age,  and 
if  a  price  is  to  be  paid  for  the  carriage  of  goods  when  they  are  actually'  on 
board,  or  there  is  some  contract  for  putting  them  on  board,  and  both  ship  and 
goods  are  ready  for  the  specified  voj-age. 

Interest  in  expected  freightage. — See  a  based  for  the  most  part  upon  decisions  of  the 
very  ehiborate  discussion  of  the  principle  em-  courts  of  Great  Britain,  in  Barber  on  Ins.,  sec. 
bodied  in  tliis  section,  and  of  connected  topics     98. 

2664.  Insurable  interest  in  profits. 

Sec  2GG4.  One  who  has  an  interest  in  the  thing  from  whicli  pi'ofits  are  ex- 
pected to  proceed  has  an  insurable  interest  in  the  profits. 

2665.  Insurable  interest  of  charterer. 

Sec.  2GG5.  The  charterer  of  a  ship  has  an  insurable  interest  in  it,  to  the 
extent  that  he  is  liable  to  be  damnified  by  its  loss. 

ARTICLE  III. 

CONCEALMENT. 

2669.    hiformation  must  be  communicated. 

Sec  2GGy.  In  marine  insurance  each  party  is  bound  t6  eom:unnicato,  in 
addition  to  what  is  required  by  section  twenty-five  hundred  and  sixty-three,  all 
the  information  which  he  possesses,  material  to  the  risk,  except  such  as  i3  men- 
tioned in  section  twenty-five  hundred  and  sixty-four,  and  to  i>tatc  the  exact  and 

44G 


3965.  Property  Exempt  From  Effect  of  Mortgage,  When. 
When  personal  property  mortgaged  Is,  thereafter  [removed 
from  the  covmty  in  which  it  is  situated,  the  lien  of  the 
mortgage  shall  not  be  affected  thereby  for  thirty  days  after 
such  removal;  but,  after  the  expiration  of  such  thirty  days, 
the  property  mortgaged  is  exempted  from  the  operation  of 
the  mortgage,  except  as  between  the  parties  thereto,  until  J 
either: 

1.  The  [mortgagee  causes]  the  mortgage  to  be  recorded 
in   the   county  to  which   the  property   has   been   removed;    or 

2.  The  [mortgagee  takes]  possession  of  the  property  as  pre- 
scribed in  the  next  section.  (In  effect  60  days  from  and 
after  February  22,   1909.     Stats.   1909,   Chap.   53.) 

Civ.  Code,   1909. 


Tttle  XI,  CiiAP.  II.]  MATJNE  IXSURxVXCE.  §§  2070-2GSI 

"whole  truth  in  relation  to  all  matters  that  he  represents,  or  upon  inquiiy  assumea 
to  disclose. 

Concealment  in  insurance  generally:  See  and  1  Marshall  on  Marine  Ins.  40.5,  text-writers 

sees.  2jG1  ct  ecc|.,  and  sec.  2G72.  referred  to  by  the  code  comnaissionera  as  clearly 

Concealment  iu  marine  insurance:  See  an  setting  forth  the  principles  embodied  in  thia 

interesting  disciissiou  of  this  Euhject  in  IJarber  article. 
on  Ins.,  sec.  101;  see  also  2  Ducr  on  Ins.  403, 

2670.  Material  information. 

Sec.  2G70.  In  marine  insurance,  information  of  the  belief  or  expectation  of  a 
third  person,  in  reference  to  a  material  fact,  is  material. 

Stated  by  Barber  on  Ins., sec.  102,  to  introduce  Representation  of  Pspectation  avoids  con- 
a  new  rule  into  the  law  of  marine  insurance.  tract,  when:  See  sec.  2077. 

2671.  Presumption  of  knowledge  <  floss. 

Sec.  2G71.  A  person  insured  by  a  contract  of  marine  insurance  is  presumed 
to  have  had  knowledge,  at  the  time  of  insuring,  of  a  prior  loss,  if  the  informa- 
tion might  possibly  have  reached  him  in  the  usual  mode  of  transmission,  and 
at  the  usual  rate  of  communication. 

Knowledge  cf  loss. — "  Heretofore  t!ic  law  tion  is  recommended  by  Mr.  Duer,  Ins.,  voL 
has  been  that  the  knowledge  of  the  assured  or  of  2,  p.  403.  The  presumption  raised  by  the  pro- 
his  agents  of  the  material  facts  alleged  to  have  vision  of  the  text  is  not  absolute;  it  may  be  re- 
been  concealed  is  never  presumed,  but  nnist  be  pelled  by  other  evidence.  Its  only  effect  seema 
establislicd  by  positive  evidence:  Sec  Livi^njston  to  be  to  sliift  the  liurden  of  proof:  See  Stewart  v. 
V.  Di'lafichl,  3  Cai.  49.  The  rule  of  tlie  text  nunlop,  4  Bro.  P.  C,  Tomlin's  ed.,  4S3;  2  Duer 
prevails  in  continental   Europe,  and  its  adop-     on  Ins.  53D-541:"  Commissioners'  note. 

2672.  Concealments  which  only  affect  the  risk  in  question. 

Sec.  2G72.  A  concealment  in  a  marine  insurance,  in  respect  to  any  of  the 
following-  matters,  does  not  vitiate  the  entire  contract,  but  merely  exonerates 
the  insurer  from  a  loss  resulting  from  the  risk  concealed: 

1.  The  national  character  of  the  insured; 

2.  The  liability  of  the  thing  insured  to  capture  and  detention;" 

3.  Tlie  liability  to  seizure  from  breach  of  foi-eign  laws  of  trade;; 

4.  The  want  of  necessary  documents;  and, 

5.  The  use  of  false  and  simulated  papers. 

ARTICLE  IT. 

representations. 
2S7G.    Effect  of  intentional  falsity. 

Sec.  2GT().  If  a  representation,  by  a  person  insured  by  a  contract  of  marine 
insurance,  is  intentionally  false  in  any  respect,  whether  material  or  immaterial, 
the  insurer  may  rescind  the  entire  contract. 

lispresentations  generally:  See  ante,  sees.  2571  et  seq. 

2677.    licpresentadon  of  expectation. 

Sec.  2G77.  The  eventual  falsity  of  a  representation  as  to  expectation  does 
not,  in  the  absence  of  fraud,  avoid  a  contract  of  insurance. 

Ezrpectation  of  a  third  person  material:  Sec.  2371.  See  Mr.  Barber's  valuable  expoaitiou 
of  the  subject  of  this  section:  Ins.,  see.  106. 

ARTICLE  V. 

IMPLIED    WARRANTIES. 

2631.    Warranty  of  seaworthiness. 

Siic.  2G81.  In  every  marine  insurance  upon  a  ship  or  freight,  or  freightage, 
or  upon  anything  which  is  the  subject  of  marine  insurance,  a  warranty  is 
implied  that  the  ship  is  seaworthy.  [Amendment,  approved  March  30,  1874;, 
Amendments  1873-4,  257;  took  effect  July  1,  1874.] 

447 


§3  26S2-2BS5  OBLIGATIONS.  [Drv.  Ill,  Part  IV, 

The  origln^il  330tion  confined  the  implied  That   the  fact  of  cPTccting   an  insurance  is  an 

warranty  ot  seaworthiness  to  i;i3iirauccs  on  the  iuipliei  warranty  of  the  seaworthiuesa  of  the 

property  of  tiio  ship-owner,   for  tlie  reason,  as  vcsncl  is  laid  down  in  Pliillips  on  Ins  ,  see.  09.'); 

the  commissioners  state,  tliat   the   former  la'.v  V/ldtucy  v.  Orean  fn^.  Co.,  30  Am.  Doc.   50!), 

implying  such  a  warranty  in  every  case — the  i:i  note;    Warren  v.  UiiiU-d  Inn.  Co.,  1    Id.  1G4; 

law  as  re-enacted  liy  the  a!!iend:nent  of  1S74 —  Barnewall  v.  Church,  2  Id.  ISO,   and  iiDtes  to 

"  is  not  founded  upon  ri-ason.    Insurers knowthe  t'.iosa    cases;    Jligijie   v.  American    Lloijds,    14 

quality  of  vessels  much  better  t!i:ui shippers."  Fc.'.  Rep.  143. 

Inipliod  v/arranty  of   ssawortliiaasa. —  Geav7ortliiia333  dsfined:   See  next  section. 

Sj632.    ScaioorlliuiPHii,  \oliat. 

Sec.  2G82.  A  ship  i.s  seaworthy  when  reasonably  fit  to  perform  the  services, 
and  to  encounter  the  ordinar}'-  perils  of  the  voyage,  contemplated  b}'  the  parties 
to  the  policy. 

Ssawortliiness  defined:  Consult  sees,  2fiS.'t-26S5> 

2683.  Sen  worthiness,  xolien  must  exist. 

Sec.  2G83,  An  implied  warranty  of  seaworthiness  is  complied  with  if  the  ship 
be  seaworth}'  at  the  time  of  the  commencement  of  the  risk,  except  in  the  follow- 
ing cases: 

1.  "U'hen  the  insurance  is  made  for  a  specified  length  of  time,  the  implied 
warranty  is  not  complied  with  unless  the  ship  be  seaworthy  at  the  commence- 
ment of  eveiy  voyage  she  may  undertake  during  that  time;  and, 

2.  "When  the  insurance  is  upon  the  cargo,  which,  by  the  terms  of  the  policy 

or  the  description  of  the  voyage,  or  the  established  custom  of  the  trade,  is  to  be 

transshipped  at  an  intermediate  port,  the  implied  Avarranty  is  not  complied  with, 

unless  each  vessel  upon  which  the  cargo  is  shipped  or  transshipped  be  seaworthy 

at  the  commencement  of  its  particular  voyage.     [Amendment,  approved  March 

30,  1874;  Amendments  1873-4,  237;  took  effect  Jtdi/  1,  1874.] 

In  time  policies   the  vessel  must  be  sea-  32  Conn.  21.     And  with  respect  to  the  continn- 

worthy  at  the  commencement  of  the  risk:  Am.  auce  of  seaworthiness  during  the  voyage,  coin- 

I)is.  Co.  V.  Ofden,  20  Weud.  2S7;  Jionse  v.  l/is.  pare  sections  iJSo,  2GSG;  and  see  llarbcr  on  Ins., 

Co.,   3  Wall.   jun.  3G7;  Capen  v.    Washin-jtoa  sec.  109.     This  same  author  shov/s  tlie  ilifTcr- 

Im.  Co..  12Cus'n.  517;  Iloxie  v.  Pacijic  M.  fns.  encc  between  the  American  and  English  rule  ia 

Co.,  7  Allen,  211;  lloxie  v.  Home  M.  Ins.  Co.,  this  particular. 

2684.  What  things  are  required  to  constitute  seaworthiness. 

Sec.  2G84.  A  warranty  of  seaworthiness  extends  not  only  to  the  condition  of 
the  structure  of  the  ship  itself,  but  requires  that  it  be  properly  laden,  and  pro- 
vided with  a  competent  master,  a  sufficient  number  of  competent  officers  and 
seamen,  and  the  requisite  appurtenauces  and  equipments,  such  as  ballast, 
cables  and  anchors,  cordage  and  sales,  food,  water,  fuel  and  lights,  and  other 
necessary  or  proper  stores  and  implements  for  the  voyage. 

Requisites  of  seaworthiness.— To  comply  Co.,  12  Johns.  1.13;  with  competent  ofSccrs  anrl 

witli  t!ie  warranty  of  seaworthiness,  tlie  vessel  seamen:  S'dca  v.  Low,  1  Johns.  Cas.  1S4,  108; 

must  be  not  only  properly  constructed,  that  is,  Draper  v.  Comvi.  Ins.  Co.,  2  Met.  231;  21  N. 

have  a  proper  caistruction  for  vessels  of  tlie  Y.  37S;whic!i  will  include  takin  ,' a  pilot  M-!icre 

class  insured,  and  t!ie  service  in  which  tliey  are  suoli  is  the  custom  of  the  place  to  do  so:    Vrhit- 

engaged:  Afnorfs  v.  Louisville  Undennriters,  It  nen  v.  Ocean  fns.  Co.,  33  Am.  Dec.  .50;),  in  note; 

Fed.  Hep.  223;  but  she  must  b  ;  properly  laden:  and  having  t!ie  requisite  equipments  and  appur- 

Cltane  V.  La;ile  Ijls.  Co.,  .'>  Pick.  51;  Dhiait  v.  tenanccs-.Moses  v.  Sim  Mutual  Inx.Co..  I  Duer, 

Ocean  Ins.  (Jo  ,  10  Id.  303;  be  provided  wit!i  a  159;  Fonlaine  v.  Phoenix  Ins.  Co.,  10  Jo'nns.  58; 

competent  master:    Walden  v.  Fireman's  Ins.  Mijers  v.  Girard  Ins.  Co.,  2G  Pa.  St.  102. 

2635.    Diffcreut  degrees  of  seaworthiness  at  different  stages  of  the  voyage. 

Sec.  2G85.  Where  different  portions  of  the  voyage  contemplated  by  a  policy 
differ  in  respect  to  the  things  requisite  to  make  the  ship  seaworthy  therefor,  a 
■warranty  of  seaworthiness  is  complied  with  if,  at  the  commencement  of  each 
portion,  the  ship  is  seaworthy  with  reference  to  that  portion. 

448. 


Title  XI,  Chap.  II.]  MARINE  INSURANCE.  §1 26S6-2C94 

2686.  Unseaworthiness  during  the  voyage. 

Sec.  2G86.  When  a  ship  becomes  unseaworthy  during  the  TOjage  to  which 
an  insurance  relates,  an  unreasonable  delay  in  repairing  the  defect  exonerates 
the  insurer  from  liability  from  any  loss  arising  therefrom. 

Unseawortliiness  during  the  voyage.—  7,  1&-19.  As  to  the  duty  of  the  master  to  ex- 
The  rule  as  above  announced  is  in  harmony  ercise  due  diai^ence  to  restore  the  vessel  to  a 
with  Ami-rlcaii  Ins.  C>.  v.  Ogden,  20  Wend,  seaworthy  condition  during  the  voyage,  seo 
287;  Arnod  v.  Pacific  M.  Ins.  Co.,  7S  N.  Y.     Barber  ou  Ins..  sec.  109,  p.  234. 

2687.  Seaworthiness  for  purposes  of  insurance  on  cargo. 

Sec.  2G87.  A  ship  which  is  seaworthy  for  the  jHirpose  of  an  insurance  upon 
the  ship  may  nevertheless,  by  reason  of  being  unfitted  to  receive  the  cargo,  be 
unseaworthy  for  the  purpose  of  iusumnce  upon  the  cargo. 

2688.  Neutral  papers. 

Sec.  2688.   Where  the  nationality  or  neutrality  of  a  ship  or  cargo  is  expressly 

warranted,  it  is  implied  that  the  ship  will  cany  the  requisite  documents  to  show 

such  nationality  or  neutrality,  and  that  it  will  not  carry  any  documents  which 

oast  reasonable  suspicion  thereon.  , 

Neutral  papers. — Tiie  owner  shoukl  provide  v.  Livermore,  14  Mass.  108.    That  the  vessel 

the  master  with  the  requisite  documents  to  ])re-  should  not  carry  documents  that  wouKl  subject 

vent  the  capture  of  a  neutral  vessel:  See  Coo^  her  to  capture:    Ulajye  v.  X.    i\   /jis.   (Jo,,  I 

id(je  V.  X.  y.  Firemeri's  Ins.  Co.,  14  Johns.  308;  Cai.  549. 
Majge  v.  N.  Y.  Ins.  Co.,  1  Cai.  549;  llifjij'au 

ARTICLE  VI. 

THK   VOYAGE   AND   DEVUTIOK. 

i2692.   Vorjage  insured,  how  determined. 

Sec.  2G92.     When  the  voyage  contemplated  by  a  policy  is  described  by  the 

places  of  beginning  and  ending,  the  voyage  insured  is  one  which  conforms  to 

the  course  of  sailing  fixed  by  mercantile  usage  between  those  places. 

Course  of  sailing.— Mercantile  usage  will  so  tlie  mention  in  the  policy  of  the  ^erTntHi  of  the 

justify  a  vessel  stopping  at  customary  imme-  voyage,  ami  of  some  intermediate  ports,  does 

diato  ports  out  of  the  direct  course  between  not   proliib't  touching  at   other  intermediate 

the  placfs  of  beginning  and  ending  the  voyage:  ports  which,  in  making  the  voyage,  it  is  usual 

Folsom  v.  ilaniij'acturprs'  Ins.  Co.,   10  Urav,  for  vessels  to  enter:  McCall  v.  Hull  Mut.  Ins. 

46.];  Folsom  v.  merchants'  Ins.  Co.,  33  Me.  414;  Co.,  GO  N.  Y.  506. 
Locked  v.  Merchants'  Ins.  Co.,  10  Rob.  (La.)  339; 

2693.  Course  of  sailing,  how  determined. 

Sec.  2G93,  If  the  course  of  sailing  is  not  fixed  by  mercantile  usage,  the 
Toyage  insured  by  a  policy  is  the  way  between  the  places  specified  which,  to  a 
master  of  ordinaiy  skill  and  discretion,  would  seem  the  most  natural,  direct, 
and  advantageous. 

2694.  Deviation,  what. 

Sec.  2094,     Deviation  is  a  departure  from  the  course  of  the  voyage  insured, 

mentioned  in  the  last  two  sections,  or  an  unreasonable  delay  in  pursuing  the 

voyage,  or  the  commencement  of  an  entirely  different  voyage. 

Deviation.— The  voyage  insured.— For  il-  Unreasonable  delay  in  pursuing  the  voy. 

lustiatiun  of  a  lilieral  construction  given  to  the  age  is  a  deviation:  Arnold  v.  Pac'ijir  M.  Im. 

description  <  f  the  voyage  for  wliicli  the  insur-  Co.,  78  N.  Y.  1;  Up'on  v.  Salem  Ins.   Co,  8 

ance  was  given,  see  Dlrley  v.  Dallhnore  Iiu^.  Met.  GO.');  Srtlle  v.  .S7.  Lovis  P.  Ins.  Co..  7  Mo. 

Co.,   7  Cranch,  .S27;   Maxwell  v.   UohhiHon,    I  379;  Martinv.  Dehiw^ire  Ins.  CQ.,2\\i\ii\\.2:A\ 

Johns.  333;  /)e  P'-ysterv.  Sun  Mutual  I uj*.  Co.,  Hermann  v.  Western  F.  <t  M.  Ins.  Co.,  15  La. 

19  N.  Y.  272;  Houston  v.  W.  E.   Ins.  Co.,   5  Ann.  517. 

Pick.  89.     For  euforccment  of   a   strict  cou-  As  to  what  is  an  unreasonable  delay,  sea 

Btruction,  and  tlie  imposing  upon  tiie  insurer  Olirr   v.  Mari/laml  Ins.  Co.,  G   Cranch,  274; 

liability  for  loss  for  the  specified  voyage  only,  Unhhard  v.  CooUd  ',e,  2  Oall.  35.3. 

eee  3  Kent's  Com.  *3I2;  Stevens  v.  Com.  M.  Commenoement  of  a  diilerent  voyage. 

Ins.  Co.,  2G  N.  Y.  397.  See  Mr.  Darber's  comment  ou  this  language  of 

Civ.  Code— 29  449 


§§  2695-2704  OBLIGATIONS.  [Div.  HI,  Part  IV, 

the  section,  companns;  it  with  the  generality  of  That  a  mere  intention  to  deviate,  without 

the  decisions,  which  liold  that  such  an  abandon-  some  overt  act,  does  not  constitute  a  deviation, 

ment  ah  initio  would  be  not  a  deviation,  init  see  Snoio  v.  Columbian  /n.t.  Co.,  48  N.  Y.  624; 

would  be  simply  a  case  in  which  the  policy  never  /^a7vrenre   v.  Ocean  Ins.   Co.,  11    Johns.    241; 

attached,  thereby  entitling  the  insured  to  a  re-  Henxhaw  v.  Marine  fnn.  Co.,  2  Cai.  274;  Winter 

turn  of  the  premium.  v.  Delaware  M.  Ins.  Co.,  30  Pa.  St.  334. 

2695.     When  proper. 

Sec.  2C95.     A  deviation  is  proper: 

1.  When  caused  by  circumstances  over  which  neither  the  master  nor  the 
owner  of  the  ship  has  any  control; 

2.  When  necessary  to  comply  with  a  warranty,  or  to  avoid  a  peril,  whether 
insured  against  or  not; 

3.  When  made  in  good  faith,  and  upon  reasonable  grounds  of  belief  in  its 
necessity  to  avoid  a  peril ;  or, 

4.  When  made  in  good  faith,  for  the  purpose  of  saving  human  life,  or  reliev- 
ing another  vessel  in  distress. 

Deviation — Subd.    1.     Prom   necessity:  The  section  settles  the  mooted  question  as  to 

Bohiuson  v.  Marine  Ins.  Co.,  2  Johns.  89;  Tar-  deviation  to  avoid  a  peril  not  insured  against: 

tier  V.  Protection  I»x.  Co.,  2.5  Me.  515.  1  Phillips  on  Ins.,  sees.  1023-1025;  1  Arnould 

Subd.  2.     To  avoid  a  peril.— It  must  have  on  Ins.  *407. 

been  necessary,  or  reasonably  believed  to  have  Subd.  4.     To  save  life:  Petemon  v.  Chan- 

fceen  necesL^ary,  to  depart  from  the  voyage  to  don,  6  Saw.  514;  Kettel  v.  Wigi/in,  13  Mass.  68; 

ravoid  the  peril,  otherwise  the  deviation  is  not  Perkins  v.  Attgusta  Banking  Co.,  9  Gray,  317. 

proper:  Readc  v.  Com.  Ins.  Co.,  3  Johns.  352;  Relieving  vessel   in  distress:    The  Henry 

Whitney   v.   Ilaven,   13   Mass.    172;   Oliver  v.  Ewhank,  I  Sumn.  400;    The  Schooner  Boston, 

Mai-ijland  Ins.  Co.,  7   Crancb,  493;  and  see  Id.  328. 
subdivision  3. 

"2696.    Wheji  improper. 

Sec.  2G96.    Every  deviation  not  specified  in  the  last  section  is  improper. 

:  2697.    Deviation  exonerates  the  insurer. 

Sec  2G97.     An  insurer  is  not  liable  for  any  loss  happening  to  a  thing  insured 
:  subsequently  to  an  improper  deviation. 

AETICLE  Vn. 

LOSS. 

2701.  Total  and  partial  loss. 

Sec.  2701.     A  loss  may  be  either  total  or  partial. 
Total  loss  eitJier  actual  or  constructive:        Constructive  total  loss  defined:  See  sec. 

See  sec.  2703.  2705. 

Actual  total  loss  defined:  See  2704. 

2702.  Partial  loss. 

Sec  2702.     Every  loss  which  is  not  total  is  partial. 
Liability  on  partial  loss:  Sec.  2737. 
One  tliird  new  for  old:  Sec.  2746. 

2703.  Actual  and  constructive  total  loss. 

Sec  2703.     A  total  loss  may  be  either  actual  or  constructive. 
Actual  total  loss  defined:  Sec.  2704.  Constructive  loss  defined:  Soa.  2705, 

Actual  loss,  when  presiuned:  Sec.  2706. 

:  2704.   Actual  total  loss,  what. 

Sec.  2704.     An  actual  total  loss  is  caused  by: 

1.  A  total  destruction  of  the  thing  insured; 

2.  The  loss  of  the  thing  by  sinking,  or  by  being  broTcen  up; 

3.  Any  damage  to  the  thing  which  renders  it  valueless  to  the  owner  for  the 
purposes  for  which  he  held  it;  or, 

4.  Any  other  event  which  entirely  deprives  the  owner  of  the  possession,  at 
the  port  of  destination,  of  the  thing  insured. 

450 


Title  XI,  Chap.  II.] 


MARINE  INSURANCE. 


2705-2709 


Actual  total  loss. — The  mere  sinking  of 
the  vessel  does  not  constitute  an  actual  total 
loss;  it  must  be  lost  to  the  owner:  I'cde  v.  ^I'f- 
folk  Ins.  Co.,  7  Pick.  90;  SeiralL  v.  U.  S.  //ly. 
Co.,  11  Kl.  00.  Nor  is  there  an  actual  total 
loss  where,  after  a  disaster,  the  vessel  still  re- 
mains a  vessel,  and  aa  sucli  rcaehos  her  port  of 
destination:  Burt  v.  Brewers^  etc.  //»->'.  Co.,  73 
N   Y.  4(>0,  affinring  the  same  case,  9  Hun,  38.3. 

To'al  loss  of  "memorandum"  artiolea. 
It  is  said  ill  Be  Peyster  v.  Sun  Mat.  /ns.  Co.,  10 
N.  Y.  27"2,  to  be  tiie  "settled  law  in  this  state 
that  there  can  be  no  recovery  in  case  of  loss  of 
memorandum  articles  when  any  portion  thereof 
arrives  in  specie  at  the  port  of  destination,  al- 
though possessing  no  value  tiiere."     So  Burt 


V.  Brewers'  etc.  Ins.  Co.,  9  Hun,  38.^,  approved 
in  78  N.  Y.  400;  Globe  Ins.  Co.  v.  Sherlock,  25 
Ohio  St.  50;  2  Parsons  on  Mar.  Ins.,  68-91; 
Phillips  on  Ins.,  sees.  1485,  1487.  Compara 
sees.  2711,  2712. 

Y'^et  there  may  be  a  total  loss  of  a  cargo 
which,  damaged  by  perils  of  the  sea,  un- 
dergoes a  change  which  renders  it  valueless, 
and  makes  it  such  a  nuisance  as  to  render  its 
transportation  wholly  impracticable:  Wdliama 
v.  Cole,  10  Mo.  207;  Williams  v.  Kennebec  Mat. 
Ins.  Co.,  31  Id.  433;  De  Pei/ster  v.  Sun  Mat. 
Ins.  Co.,  19  N.  Y.  272;  Wallemtein  v.  Colum- 
bian Ins.  Co. ,  44  Id.  204;  Poole  v.  Protectiov 
Ins,  Co.,  14  Couu.  47. 


2705.  Consfructive  total  loss. 

Sec.  2705.     A  constructive  total  loss  is  one  "which  gives  to  a  person  insured 
a  riglit  to  abandon,  under  section  twenty-seven  hundred  and  seventeen. 
Abandomneat  for  construotive  total  loss:  Sees.  2716  et  seq. 

2706.  Presumed  actual  loss. 

Sec.  2706.  An  actual  loss  may  be  presumed  from  the  continned  absence  of  a 
ship  without  being  heard  of;  and  the  length  of  time  which  ia  sufficient  to  raise 
this  presumption  depends  on  the  circumstances  of  the  case. 

2707.  Insurance  on  cargo  when  voyage  broken  up. 

Sec.  2707.  "When  a  ship  is  prevented,  at  an  intermediate  port,  from  complet- 
ing the  voyage,  by  the  perils  insui'ed  against,  the  master  must  make  every  exer- 
tion to  procure,  in  the  same  or  a  contiguous  port,  another  ship,  for  the  purpose 
of  conveying  the  cargo  to  its  destination;  and  the  liability  of  a  marine  insurer 
thereon  continues  after  they  are  thus  reshipped.  {Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  258;  look  effect  July  1,  1874.  j 


Insurance  on  cargo,  voyage  broken  up. — 

The  original  section  did  not  contain  tlie  clause 
"by  the  perils  insured  against,"  and  it  was 
therein  inserted  by  the  ainendnient  of  1874,  in 
accordance  with  the  suggestion  of  the  code  ex- 
aminers, who  gave  as  their  reason:  "Tliis 
limitation  of  the  circumstances  under  which 
the  insurer  must  remain  liable  on  transshipped 
cargo  is  necessary  for  his  protection.  The 
present  section  would  bin<l  the  insurer  for 
every  cause  of  detention,  including  such  as 
might  not  be  due  to  any  peril  insured  against, 
Buch,  for  instance,  as  the  seizure  of  the  vessel 
for  engaging  in  illicit  trade,  or  violating  the 
revenue  law,  or  running  a  blockade." 

That  it  is  the  duty  of  the  master,  in  case  of 
the  loss  of  his  own  ship,  to  use  every  exertion 
to  procure  another  vessel  in  which  to  forward 


the  goods  to  their  destination,  see  Searle  v, 
Scovell,  4  Johns.  Ch.  218;  Saltus  v.  Ocean  Ins. 
Co.,  12  Johns.  107;  S.  C,  7  Am.  Dec.  290 
Schleffelln  v.  N.  Y.  Ins.  Co.,  9  Johns.  21;  Br;/ 
ant  V.  Commonwealth  Ins.  Co.,  6  Pick.  13v)j 
llwjrf  V.  Awjasia  Ins.  Co.,  7  How.  o9.>. 

If  freightage  is  lost  as  a  direct  consequencfl 
of  the  omission  of  the  master  to  forward  tht 
cargo  from  an  intermediate  port  to  its  destina 
tion,  the  insurer  on  freightage  is  not  liable  od 
such  loss:  Grisicold  v.  N.  Y.  Ins,  Co.,  1  Johns. 
205;  S.  C,  3  Id.  321;  Schleffelln  v.  N.  Y.  Ins 
Co.,  9  Id.  21;  American  /ns,  Co,  v.  Center,  4 
Weml.  45;  Clark  v.  il/asx.  F.  «(.•  M,  Co.,  2  Pick. 
104;  Lord  v.  Neptune  Ins.  Co.,  10  Gray,  109. 

Constructive  total  loss  of  cargo:  See  seo. 
21\1,  post.  subd.  4. 


2708.  Cost  of  reshipment,  etc. 

Sec.  2708.     In  additiv-n  to  the  liability  mentioned  in  the  last  section,  a  marine 

insurer  is  bound  for  damages,  expenses  of  discharging,  storage,   reshipment, 

extra  freightage,  and  all  other  expenses  incurred   in  saving  cargo  reshipped 

pursuant  to  the  last  section,  up  to  the  amount  insured. 

Cost  of  reshipment. — This  section  follows    drawn  from  the  French  law:  Code  de  Com., 
the  rule  generally  adopted  iu  this  country  and    sec.  393;  3  Kent's  Com.,  sec.  338. 

2709.  When  insured  is  entitled  to  payment. 

Sec.  2709.     Upon  an  actual  total  loss,  a  person  insured  is  entitled  to  payment 
without  notice  of  abandonment. 


451 


§§  2710-2717  OBLIGATIONS.  [Div.  ni,  Pabt  IV, 

2710.  Abnndonment  of  goods  on  insurance  on  profits. 

Section  2710  was  repealed  by  act  approvcil  a  recovery  for  a  constructive  total  loss.  The 
March  30,  1874;  Amendments  1873-4,  258;  code  examiners  recommended  the  repeal,  say- 
took  effect  July  1,  1874.  ing,  "The  section  repealed  is  inconsistent  with 

Tliis  section  provided  tliaton  an  insurance  on  section  2738,  which  expresses  the  true  rule." 
profits  the  goods  must  be  abandoned  to  entitle  to 

2711.  Average  loss. 

Sec.  2711.  Where  it  has  been  agreed  that  an  insurance  upon  a  particular 
thing  or  class  of  things  shall  be  free  from  particular  average,  a  nxarine  insurer 
is  not  liable  for  any  particular  average  loss  not  depriving  the  insured  cf  the 
possession,  at  the  port  of  destination,  of  the  whole  of  such  thing,  or  class  of 
things,  even  though  it  become  entirely  worthless,  but  he  is  liable  for  his  pro- 
portion of  all  general-average  loss  assessed  upon  the  thing  insured.  [Amerid- 
meid,  approved  March  30,  1874;  Amendments  1873-4,  258;  took  effect  July  1, 
1874.] 

Free  from   average   unless   general. — In  parts  of  a  machine  without  all  the  other  parts, 

Barber  on  Ins.,  sec.  130,  p.  279,  is  given  an  audit  would  cost  as  much  to  supply  the  missing 

explanation  cf  the  origin  and  meaning  of  this  portions  as   the  entire   machine    would   cost, 

phrase,  showing  that  it  was  first  introduced  into  The  court  said,  therefore:  "  There  was  no  part 

policies  of  insurances  about  the  middle  of  the  of  the  )nachinery  saved,  however  much  of  rusty 

last  century,  with  a  view  to  exempt  the  under-  iron   may  have  been  taken  from  the  wreck." 

writer  from  liability  for  a  partial  loss  of  per-  There  was  a  total  loss  of  the  article  insured,  a 

ishal)le  articles.     That  author's  entire  section  machine. 

130  will  be  found  to  contain  a  very  satisfactory         Where  goods  are  shipped  in  bulk  and  insured 

discussion  of  the  question  sug'jested.  American  in  bulk,  the  principles  above  stated,  and  sup- 

and  English  cases  are  there  collected  and  com-  ported  by   references  in   the  note    to   section 

mented  upon.  2704,  apply.    Where  the  articles  are  separately 

Memorandum  articles  are  not  totally  lost  if  shipped,  but  are  insured  in  bulk  and  valued  in 
they  arrive  in  specie  at  port  of  destination:  See  bulk,  the  loss  of  a  particular  package  or  pack- 
note,  sec.  2704,  ante.  As  to  what  is  a  destruc-  ages  will  not  entitle  to  a  recovery  under  the 
tion  in  specie,  Wallerstein  v.  Columbian  lax.  memorandum:  llumphreys  v.  Union  Ins.  Co., 
Co.,  44  N.  Y.  201,  presents  .1  very  interesting  3  Mason,  421);  Moreaa  v.  LT.  S.  Ins.  Co.,  1 
state  of  facts,  and  gives  rise  to  a  valuable  ex-  Wheat.  210,  227.  But  were  articles  are  sop- 
amination  of  the  principles  involvetl.  There  arately  shipped  and  separately  insured.,  a  h).>j 
certain  portions  only  of  a  piece  of  macliinery  of  any  article  is  a  total  loss  to  that  cxtcui: 
were  saved.     The  portions  were  of  no  use  as  Ketldl  v.  Alliance  Int.  Co.,  10  Gray,  144. 

2712.  Insurance  against  total  loss. 

Sec  2712.     An  insurance  confined  in  terms  to  an  actual  total  loss  does  not 

cover  a  constructive  total  loss,  but  covers  any  loss  which  necessarily  results  in 

depriving  the  insured  of  the  possession,  at  the  port  of  destination,  of  the  entire 

thing  insured.     [Am('ndme)it,  approved  March  30,  1874;  Amendments  1873-4, 

259;  took  effect  July  1,  1874.] 

Bur:  v.  Brewerx'  etc.  Irn*.  Co.,  78  N".  Y.  400;  in  an  opinion  approved  by  the  court  of  last 
S.  C,  9  Hun,  333,  where  the  cases  are  collected    resort. 

ARTICLE  yill. 

AliANDONMENT, 

2716.  Abandonment,  what. 

Sec  271G.     Abandonment  is  the  act  by  which,  after  a  constractiTe  total  loss, 

a  person  insured  by  contract  of  marine  insurance  declares  to  the  insurer  that  he 

relinquishes  to  him  his  interest  in  the  thing  insured. 

Abandonment,  reqnisitss  of:  See  sees.  2718-2723. 
Constructive  total  1d33  deanod:  Sec.  2703. 

2717.  When  insured  may  abandon. 

Sec  2717.  A  pensou  insured  by  a  contract  of  marine  insurance  may  abandon 
the  thing  insulted,  or  any  particular  portion  thereof  separately  valued  by  the 
policy,  or  otherwise  separatel}'  insured,  and  recover  for  a  total  loss  thereof, 
when  the  cause  of  the  loss  is  a  peril  insured  against: 

4r)2 


TiTLK  XI,  Chap.  II.] 


MARINE  INSURANCE. 


§2717 


1.  If  more  tban  half  thereof  in  value  is  actually  lost,  or  would  ha^e  to  be 
expended  to  recover  it  from  the  i^eril; 

2.  If  it  is  injured  to  such  an  extent  as  to  reduce  its  value  more  than  one  half; 

3.  If  the  things  insured,  bein^  a  ship,  the  contemijlated  vo3'age  cannot  be 
lawfully  performed  without  incumng  an  expense  to  the  insured  of  more  than 
half  the  value  of  the  thing  abandoned,  or  without  incumug  a  risk  which  a  pru- 
dent man  would  not  take  under  the  circumstances;  or, 

4.  If  the  thing  insured,  being  cargo  or  freightage,  the  voj'age  cannot  be  per- 
formed nor  another  ship  procured  by  the  master,  within  a  reasonable  time  and 
with  reasonable  diligence,  to  forward  the  cargo,  without  incurring  the  like 
expense  or  risk.  But  freightage  cannot  in  any  case  be  abandoned,  unless  the 
bhip  is  also  abandoned. 


Constructive  total  loss. — This  provision, 
in  ikck.rini,'  when  the  insm-ed  may  ahandou, 
makes  twogeneial  classes  (if  cases,  thcoueinchul- 
iu^  iiiMuances  of  art'cles  in  bulk,  and  tlie  other 
eiabnicin;^'  insurances  of  articles  separately 
valued  or  insured.  As  illustrations  of  con- 
ctnietive  total  loss  of  articles  separately  valued 
or  insured,  see  Deidi'rick  v.  (Jomnnrcial  Iim. 
Co.,  10  Jolins.  1.34;  Ocean  Ins.  Co.  v.  Carriii;/- 
ton,  3  Conn.  357;  h'etlill  v.  Allicvire  Iiis.  Co.,  10 
Gray,  144,  154;  hilloway  v.  Ni'ptune  Ins.  Co., 
12  Id.  7;i. 

Subd.  1,  2.  Loss  to  one  half  value. — In 
the  following;  extract  from  the  opinion  of  tlie 
court  in  Bradlie  v.  Mar'iand  /im.  Co.,  12  I'et. 
378,  niany  of  the  questions  suf];gested  l)y  tliis 
section  are  answered,  and  they  thei'e  approve 
the  docLiine  as  declared  in  3  Kent's  C'lUi.  3:29, 
S30:  "It  is  understoot!  to  be  a  (ixed  rule 
that  if  the  ship  require  repairs  to  the  extent 
of  mo!e  liuin  half  her  value  at  the  time  of 
the  loss,  tlio  insured  may  abandon;  for  if  ship 
or  cargo  he  damaged  so  as  to  diminisli  their 
value  aljove  half,  they  ai-e  said  to  be  construc- 
tively lost.  *  *  *  The  meaning  of  the  words 
in  the  lule,  'one  half  of  the  value,'  has  been 
licldtobcthc  half  of  thegeneral  market  value  of 
the  vessel  at  *iie  time  of  the  disaster,  and  not  her 
va.lue  for  any  1  articular  voyage  or  purpose.  The 
expense  of  tfie  repairs  at  the  j  ort  of  necessity, 
includiii ,'  tiie  expense  of  getting  tlie  siii])  ailoat 
if  stranded,  is  tlie  true  test  for  determining  the 
amount  of  the  injury;  an<l  such  sum  is  to  be 
taken  as  will  fully  reinstate  the  vessel,  and  in 


22;  14  Id.  320,  and  a  reasonable  allowance  for 
custody  of  the  vessel  while  there,  and  for  :ni- 
peiintendence,  IJali  v.  Ocean  //w.  Co.,  21  Pick. 
472,  are  to  be  considered  in  arriving  at  the 
"one  half"  loss. 

Subd.  3.     Voyage    interrupted Cannot 

lair/ifl'i/  be  per/orincd. — Under  this  clause 
would  fall  the  case  of  interruption  of  the  voyage 
bv  an  embargo:  O'jilen  v.  Neic  York  Fire  Inn.  Co., 
10  Johns.  177;  12  Id.  25;  McUride  v.  Marine 
Ills.  Co.,  5  Id.  299;  W'ald  n  v.  Ph(EnJxIns.  Co., 
310;  (hllin  v.  Washin'/ton  Ii"-:  Co.,  2  Wash.  312; 
Lorent  V.  .9.  C.  In--<.  Co.,  1  Nott  &  M.  505. 

Wdhoitt  inrurrinrj  vis/:,  i-tc. — It  is  the  opinion 
of  Mr.  Barber,  lus.  319,  that  this  clause  of 
the  a'oove  section  \\as  "designed  for  the  pur- 
pose of  covering  the  case  where  the  insured 
vessel  cannot  enter  her  jiort  of  destination 
without  incurring  the  risk  of  capture."  Upon 
the  general  question  of  right  of  abaudonuienb 
arising  from  fear  of  capture  for  breacli  of  a 
blockade  or  entry  into  hostile  ports,  that  author, 
jiointing  out  the  difference  in  the  decisions  in 
our  state  courts,  shows  that  New  Yoik,  from 
whose  [irojiosed  code  our  section  was  taken, 
recognizes  the  existence  of  this  rigiit:  ('ralj  v. 
Untied  IiiJi.  Co.,  G  Johns.  220;  Sid/us  v.  Uniled 
I  111.  Co.,  15  III.  523;  Schmidt  v.  United  Ins. 
Co.,  1  Id.  245. 

Subd.  4.  Constructive  total  loss  of 
cargo  or  fi'eightags. — A  constructive  total 
loss  of  cargo  wi.l  arise  from  a  destruction  of 
more  than  half  the  value  tliereof  by  any  of  tlie 
perils   insured    against:  Marcardicr   v.   Chesa- 


general  of  tlie  same  kind  of  materials  of  which    peake  IiiJi.  Co.,  8  t'rnnch,  47;  3  Kent's  Com., 


she  was  composed  at  the  time  of  tlie  disaster. 
It  has  been  considered,  also,  that  the  tin-ee  ob- 
jects of  insurance — vessel,  cargo,  and  freight — 
btand  on  the  same  ground  as  to  a  total  loss  Ijy 
a  deterioration  of  more  than  one  half  in  value." 

Th.it  the  vahie  of  the  vessel  at  the  time  of 
the  accident  is  the  value  to  be  considered  in 
determining  the  natui'e  of  tiie  loss,  see  Bradlie 
v.  Md.  ///,.-.-.  Co.,  Kiipra;  Patapsco  Ins.  Co.  v. 
Sovfh'jate,  5  Pet.  004;  3  Kent's  Com.  *331. 

That  one  third  new  is  not  to  be  deducted 
from  the  cost  of  repairs  in  estimating  the 
amount  of  tlie  loss,  see  J>ujiia/  v.  U.  Ins.  Co., 
3  Johns.  Cas.  182;  Cooliihje  v.  (llonce.ster  fiis.  Co. 


sec.  329.  This  must  be  taken  with  the  qualiti- 
cation  expressed  in  section  2712,  wliere  tlie 
insurance  stipulates  for  liability  only  in  cases 
of  actual  total  loss;  and  see  note  to  section 
2704.  Other  decisions  of  American  courts  recog- 
nizing tlie  iusuied  to  abandon  to  the  insurer 
cargo  damaged  by  the  perils  of  the  sea  to  more 
than  one  half  its  value  arc:  Lvdlow  v.  Cohnnli'd 
Ins.  Co.,  1  Johns.  335;  Vandinhcnvlv.  United 
Ins.  Co.,  Id.  400;  Mo<es  v.  Colnmhian  Ins.  Co., 
G  Id.  219;  Clarkson  v.  Pluenix  Ins.  Co.,  0  Id.  1; 
Wadded  V.  Colnmhian  Ins.  Co.,  10  Id.  01. 

Widi   resjicct   to  the  last  sentence  in  .sub- 
division 4,   Mr.  Barber,  Ins.  .352,   says:   "The 


15  Mass.  31 1 ;  Pi-fle  v.  Marine  Ins.  Co.  3  Mason,     provi  don  that  freightage  cannot  in  any  case  be 


76,  77;  Wdliunis  v.  Snjfolk  Ins.  Co.,  3  Sumn. 
270;  Plidli/).-<  V.  St.  Louis  Perpetual  Int.  C>.. 
]  1  La.  Ann.  459.  For  the  rule  as  to  one  third 
new  for  old  in  cases  of  partial  loss,  see  sec. 
2740,  jiosf. 

The  cost  of  taking  a  damaged  vessel  into  port 


for  repairs,  Lincoln  v.  Hope  Ins.  Co.,  8  Gray,     rasnt:  See  sec. 


abandoned  unless  the  sliip  is  abandoned  is  new 
to  the  law  of  insurance.  It  seems  to  ignore 
the  fact  that  the  abiindonment  of  frcigiit  or 
'freightage'  may  be  tiie  result  of  loss  of  cargo, 
though  the  sliip  remains  uninjured." 
Frsigh'age,  how  aifeotod  by  abandon* 
2730. 


§§  2718-2723 


OBLIGATIONS. 


[Div.  Ill,  Part  TV, 


2718.    Hind  be  vnqualifird. 

Sec.  2718.     An  abandonment  must  be  neither  partial  nor  conditional. 

good:     where  articles  are  separately  sliippeil  and  sep- 


not 
Dec. 


Conditional   abandonmant  is 

PiiTie  V.   Uc-an  Jiu.   Co.,   2'J  Am 
Uhl'i'infion  V.  Da'l,  II)  ?vIa3S.  00. 
Paitial  abandonment  not  permiasible,  but 


5G7; 


arately  insured  the  loss  is  to  be  viewed  with 
respect  to  the  separate  articles:  See  the  note 
to  sec.  2711. 


2719.   Wlien  may  he  made. 

S!::c.  2719.  An  abandonment  must  be  made  within  a  reasonable  time  after 
the  information  of  the  loss,  and  after  the  commencement  of  the  voyage,  and 
before  the  party  abandoning  has  information  of  its  completion. 


Abandomnsnt  -witliin  reasonable  time. — 

As  to  what  is  a  reasonable  time  in  marine  iu- 
Bnrance,  see  the  discussions  in  2  Arnould's  Ins. 
*11G4  et  seq.;  2  Phillips  on  Ins.,  sec.  1069. 
The  insured  has  no  right  to  wait  to  ascertain 
the  extent  of  loss  on  the  sale  of  the  damaged 
jiroperty:  Teasdale  v.  Chirleston  Ins.  Co.,  3 
Am.  Dec.  70,").  Nor  can  he  abandon  after  tiie 
vessel  has  been  repaired  and  is  successfully 
pursuing  her  voyage:  Depau  v.  Ocean  Ins.  Co., 
13  Id.  431. 

Having  taken  a  reasonable  time  to  ascertain 
the  loss,  and  that  he  is  entitled  to  abandon,  the 
insured,  while  not  bmind  to  exercise  his  right, 
l^arl  V.  Shaw,  1  Am.  Dec.  117;  Bosley  v.  Chesa- 
jieake  Ins.  Co.,  22  Id.  337,  must,  if  he  intends 
to  do  so,  give  notice  of  aband  jiimeiit  promptly: 
lleijnolds  v.  Ocean  Ins.  Co.,  22  Pick.  190;  Mary- 

2720.    Abandonment  may  he  dcffated. 

Sec.  2720.  Where  the  information  upon  which  an  abandonment  has  been 
made  proves  incorrect,  or  the  thing  insured  was  so  far  restored  when  the  aban- 
donment was  made  that  there  was  then  in  fact  no  total  loss,  the  abandonment 
becomes  ineffectual. 


land  Ins  Co.  v.  Ruden,  6  Cranch,  338;  Duncan 
V.  Kork,  Wall.  45. 

Completion  of  the  voyage,  within  the  mean- 
ing of  policies  of  insurance,  is  not  until  th« 
vessel  has  been  moored  twenty-four  hours  in 
safety  in  her  port  of  destination:  Burt  v.  BretO' 
ers"  etc.  Ins.  Co.,  78  N.  Y.  400;  S.  C,  9  Hun, 
383;  Pezant  v.  Ndtional  Ins.  Co.,  1.5  Wend. 
433;  Parage  v.  Dale,  3  Johns.  Cas.  156.  The 
insured  cannot  abandon  on  the  ground  that  the 
voyage  has  been  defeated  by  capture  after  he 
has  received  intelligence  that  the  vessel  has 
been  released  and  has  arrived  in  safety  at  her 
destined  port:  De  Peau  v.  Russell,  2  Am.  Dec. 
676. 

Omitting  to  abandon,  insured  may  still  re- 
cover for  his  actual  loss:  Sec.  2732,  post. 


Right  to  abandon  depends  on  the  state 
of  facts  at  the  time  of  abandonment,  not 
upon  the  facts  which  had  previously  existed, 
or  which  were  supposed  to  exist:  Dickey  v. 
American  Ins.  Co.,  20  Am.  Dec.  763.  ilore- 
over,  subsequent  facts  coming  to  the  knowledge 
of  the  insured  cannot  be  made  to  relate  so  as  to 
strengthen  a  case  for  abandonment  which  did 
not  exist  when  the  notice  was  given:  Bosley  v. 
Chesapeake  Ins.  Co. ,  22  Id.  337. 


If  the  vessel  is  lost  at  the  time  of  the  aban- 
donment, her  subsequent  recovery  by  salvors, 
her  master  never  being  able  to  recover  posses- 
sion of  her  so  as  to  prosecute  the  voyage,  "  will 
not  cut  down  the  total  loss  to  a  partial  one:" 
S710W  V.  Union  Ins.  Co.,  119  Mass.  502. 

It  seems  that  in  England  the  right  to  recover 
on  abandonment  depends  upon  the  state  of  facta 
existing  when  the  action  is  brought:  Barber 
on  Ins.  355. 


2721.  IIoiv  made. 

Sec.  2721.  Abandonment  is  made  by  giving  notice  thereof  to  the  insurer, 
which  may  be  done  orally,  or  in  writing. 

2722.  Requisites  of  notice. 

Sec.  2722.  A  notice  of  abandonment  must  be  explicit,  and  must  specify  the 
particular  cause  of  the  abandonment,  but  need  state  only  enough  to  show  that 
there  is  probable  cause  therefor,  and  need  not  be  accompanied  with  proof  of 
interest  or  of  loss. 


If  he  assigns  an  insufficient  cause  he  is  bound 
by  it,  and  cannot  take  advantage  of  a  subse- 
quent event  without  a  newabamlonment:  Sny- 
dam  V.  Marinf  Im.  Co.,  3  Am.  Dec.  307;  Ileeb- 
nerv.  Ea/le  Ins.  Co  ,  10  Gray,  139;  McConochie 
V.  San  M.  I.  Co.,  26  N.  Y.  477. 


Notice    must    be    explicit    and    state 

grounds  of  abandonment:  Boxleyx.  Chetapi^ake 
Inx.  Co.,  22  Am.  Dec.  337;  Pier  e  v.  Ocean  Ins. 
Co. ,  29  Id.  5G7.  The  insured  cannot  avail  him- 
self of  any  other  grounds:  Sinjdam  v.  }farine 
Ins.  Co.,  3  Id.  307;  Pierce  v.  Ocean  Ins.  Co.,  29 
Id.  567;  and  sec.  2723. 

2723.    No  other  catme  can  he  relied  on. 

Sec  2723.     An  abandonment  can  be  sustained  only  upon  the  cause  specified 
in  the  notice  thereof. 

See  note  to  last  section. 

454 


Title  XI,  Chap.  II.] 


MAEINE  IKSURAlsCE 


2724-2728 


2724.   Effect. 

Sec.  2724.     An  abandonment  is  equivalent  to  a  transfer,  by  the  insured,  of 
his  interest,  to  the  insurer,  with  all  the  chances  of  recovery  and  indemnity. 

freightage  pro  rata  itlncrU  on  goods  transported 


Effect  of  abandonment. — The  insurers  be- 
come substituted,  by  reason  of  the  abandon- 
ment, to  the  interests  of  the  insured  in  the  thing 
insured:  Rorjtrs  v.  hosack'a  Ex'rs,  18  Wend. 
319;  Atlantic  lux.  Co.  v.  Storrow,  5  Paige,  2So; 
Sun  Ins.  Co.  v.  Ilail,  104  Mass.  507;  Come(jy3 
V.  Vasse,  1  Pet.  213;  so  that  the  insurers  be- 
come entitled  to  an  indemnity  from  a  foreign 
government  for  the  loss  occasioned:  I'of/ers  v. 
Hosack's  Ex'rs,  18  Wend.  332;  Grade  v. 
Palmer,  8  Johns.  24G;  or  to  damages  awarded 
for  such  loss:  Atlantic  Ins.  Co.  v.  Storrow,  5 
Paige,  285.  A  suit  iu  equity  or  admiralty,  in- 
Btituted  to  recover  from  one  owing  compensa- 
tion to  the  insured,  may  be  brought  in  the 
name  of  the  insurer  alter  abandonment:  Hall 
V.  Ilaifroad  Co.,  13  Wall.  372;  Hart  v.  IVestern 
I}.  R.  Co.,  13  Met.  90;  The  Liberty.  7  Fed.  Rep. 
226;  The.  Frank  G.  Fowler,  8  Id.  3G4.  The  in- 
surers become  liable  after  abandonment  for 


from  the  scene  of  the  loss  to  a  port  of  safety: 
Teasdale  v.  Charleston  Ins.  Co.,  3  Am.  Dec. 
705. 

After  abandonment  and  payment  by  the  in- 
surer, the  insured,  having  parted  with  his  inter- 
est, can  assert  no  rights  based  ou  the  idea  of 
continuing  interest  in  the  insured  property: 
The  Ocean  Wave,  5  Diss.  378;  The  Flanter,  2 
Woods,  490;  Home  Ins.  Co.  v.  Western  T.  Co., 
33  How.  Pr.  107;  RadcVffx.  Coster,  Hofifm.  Ch. 
93. 

See  also  late  decisions  discussing  the  rights 
of  the  insurers  by  virtue  of  subrogaiion:  Merc. 
M.  Ins.  Co.  V.  Clark,  118  IMass.  2S8;  r.'onn.  F. 
Ins.  Co.  V.  Erie  R.  R.  Co.,  73  N.  Y.  399. 

Non-waiver  of  abandonment  by  insured  while 
acting  r.s  agent  of  insurer:  See  note  to  sec.  2726. 

Subrogation  of  insurer :  fcjee  sujjiu  iu  this 
note,  and  sec.  2745. 


2725.  Waiver  of  former  abandonment. 

Sec.  2725.  If  a  marine  insurer  pays  for  a  loss  as  if  it  were  an  actual  total 
loss,  he  is  entitled  to  whatever  may  remain  of  the  thing  insui'ed,  or  its  proceeds 
or  salvage,  as  if  there  had  been  a  formal  abandonment. 

See  note  to  last  section,  the  principle  governing  the  two  cases  being  the  same, 

2726.  Agents  of  the  insured  become  agents  of  the  insurer. 

Sec  272G.  Upon  an  abandonment,  acts  done  in  good  faith  by  those  who  were 
agents  of  the  insured  in  respect  to  the  thing  insured,  subsequent  to  the  loss, 
are  at  the  risk  of  the  insurer,  and  for  his  benefit. 


Abandonment  as  affecting  acts  of  agents. 
After  a  valid  abandonment,  the  acts  of  agents 
of  the  insured  become  tlie  acts  of  the  insurer: 
Dickey  v.  American  Ins.  Co.,  20  Am.  Dec.  763. 
And  such  change  of  agency  relates  Ijack  to  the 
time  of  loss:  See  the  express  language  of  the 
code,  and  2  Parsons  on  Maritime  Law,  421. 
Some  cases  draw  a  di.stiuction  between  bona 
fde  and  other  acts  of  the  agents  of  the  insurer, 
holding  that  as  to  the  former  class  only  does 
this  transfer  of  agency  relate:  See  2  Parsons  on 
Maritime  Law,  421;  Barljer  on  Ins.  300. 

After  an  abandonment,  which  is  not  ac- 
cepted, the  insured  remains  the  quasi  agent  or 
trustee  of  the  insurer,  and  must  do  what  he 


thinks  most  for  the  good  of  those  concerned. 
If  he  acts  in  good  faith  and  sells  the  property 
or  the  vessel  insured,  iu  the  usual  manner,  it  ia 
no  waiver  of  tiie  abandonment,  nor  will  it  preju- 
dice his  claim  for  a  total  loss:  Walden  v.  Plimnix 
Ins.  Co. ,  4  Am.  Dec.  359. 

Generally,  acts  of  the  master  after  the  aban- 
donment, consistent  with  the  theory  of  ids 
agency  for  the  insurers,  will  not  invalidate  the 
abandonment:  Walden  v.  Plicenix  In.-i.  Co.,  4 
Am.  Dec.  3o9;  Waddell  v.  Columbia  Ins.  Co.,  10 
Johns.  61;  Columbian  his.  Co.  v.  A.-^hby,  4  Pet. 
1:!9;  Curcier  v.  Philadelphia  Ins.  Co.,  5  Serg. 
&  E.  113. 


2727.    Acceptance  not  necessary. 

Sec  2727.  An  acceptance  of  an  abandonment  is  not  necessary  to  the  rights 
of  the  insured,  and  is  not  to  be  presumed  from  the  mere  silence  of  the  insurer, 
upon  his  receiving  notice  of  abandonment. 


Acceptance  of  abandonment  is  not  neces- 
sary, as  the  rights  of  the  jiarties  are  determined 
by  the  circumstances  existing  when  the  notice 
of  abandonment  is  made.  Therefore  the  non- 
acceptance  dues  not  deprive  the  insured  uf  his 
rights  iu  the  premises,  nor  will  the  insurer's 


silence  prevent  his  showing  that  no  case  for 
abandonment  existed:  Peile  v.  Merchants'  Ins. 
Co.,  3  Mason,  27,  81;  Badijer  v.  Ocean  Ins. 
Co. ,  23  I'ick.  347. 

Compare  with  sec.  2731,  infrcu 


2728.    Acceptance  conclusive. 

Sec  2728.  The  acceptance  of  an  abandonment,  whether  expressed  or  implied, 
is  conclusive  upon  the  parlies,  and  admits  the  loss  and  the  sufficiency  of  the 
abandonment. 

455 


i§ '2729-2733  OBLIGATIONS.  [Di v.  Ill,  Part  IV, 

Acceptance  admits   the  losa   and   su'fi-  Ac3ept:iiice  vrill  be  implisd  from  acts  of 

eieticy  (if  the  ;i,l);ui(loiiment:  OhnccMer  In,>^.  Co.  the  iiistiret-  inconsislciit  with  any  ol.liei-  poM'tiyn 

V.    Yoiin<ie)\   2  Curt.   322;    Rachnaii   v.   Mar.  than  that  of  an  alian.lo.ioe:  G'oiiro^l.cr  hi'<.  Co. 

LouMvilie  /nn.   Co.,  5  Duer,  342;    Fulton  Inn.  v.  Yoiimfr,  2  Cnvt. 'S2-2;  Pede  v.  Mercfianln'  Ina. 

Co.  V.  Goodman,  32  Ala.  103.  Co.,  3  Maaoii,  27. 

2129.    Accepted  abandonment,  irrevocable. 

Sec.  2729.  An  abandonment  once  made  and  accepted  is  irrevocable,  unless 
the  ground  upon  which  it  was  made  proves  to  be  unfounded. 

2730.  Freightage,  how  affected  b>j  abandonment  of  ship. 

Sec.  2730.  On  an  accepted  abandonment  of  a  ship,  freightage  earned  pre- 
vious to  the  loss  belongs  to  the  insurer  thereof;  but  freightage  subsequently- 
earned  belongs  to  the  insurer  of  the  ship. 

Freiglitnge  how  affected  by  abandon-  307;  a  very  complete  discussion  of  the  effect  of 
ment. — This  section  is  drawn  from  the  early  de-  abandonment  iqjon  t!ie  right  to  freiglita  ,'e  is 
cisionof  United  Im.  Go.  v.  Lenox;  1  Johns.  Cas.  given  in  2  Phillips  on  Ins.,  5th  ed.,  sees.  1737 
377,  2  Id.  443,  which  is  now  generally  adopted  et  seq.,  where  the  English  view,  not  approvinj^ 
as  the  rule  to  be  applied  in  tins  country:  the  apportionment  rule  of  this  country,  is  ex- 
Bvffalo  City  Bank  v.  N.  W.  /i»f.  Co.,  30  N.  Y.     amined. 

251;  Leavenworth  v.  Delafield,  1  Cai.  573;   Si-        Abandonmeatof  freightage :  See  sec.  2017, 
rnondts    v.     Union    Ins.     Co.,    1    Wash.    443;    subd.  4,  and  note, 
Kejintdy  v.  Baltimore  Ins.  Co.,  3  Har.  &  J. 

2731.  liifiiHol  to  accept. 

Sec.  2731.  If  an  insurer  refuses  to  accept  a  valid  abandonment,  he  is  liable 
as  upon  an  actual  total  loss,  deducting  from  the  amount  any  proceeds  of  the 
thing  insured  which  may  have  come  to  the  hands  of  the  iusui'ed. 

Acceptance  not  presumed  from  silence:  Sec.  2727. 

2732.  Omission  to  abandon. 

Sec.  2732.    If  a  person  insured  omits  to  abandon,  lie  may  nevertheless  recover 

his  actual  loss. 

AETICLE  IX. 

MEASURE    OF   INDEMNTTr. 

2736.  Valuation,  when  conclusive. 

Sec.  2736.  A  valuation  in  a  policy  of  marine  insurance  is  conclusive  between 
the  parties  thereto  in  the  adjustment  of  either  a  partial  or  total  loss,  if  the 
insured  has  some  interest  at  risk,  and  there  is  no  fraud  on  his  part;  except  that 
when  a  thing  has  been  hypothecated  by  bottomry  or  respondentia,  befoi-e  its 
insurance,  and  without  the  knowledge  of  the  person  actually  i^rocuring  the 
insurance,  he  may  show  the  real  value.  But  a  valuation  fraudulent  in  fact 
entitles  the  insurer  to  rescind  the  contract. 

Valued  policies:  See  ante,  sec.  2593.  As  Sumn.  451;  TToiuland  v.  7«s.  Co.,  2  Cranoh 
a  general  proposition,  it  is  true  that  the  value  C.  0.  471;  Akin  v.  Mi'fs.  M.  it  I''.  Int.  Co.,  i 
agreed  upon  in  policies  of  insurance  is  conclu-  Mart.,  N.  S.,  6G1;  Griswold  v.  Union  etc.  Ins. 
Bive  upon  the  parties  if  there   be   no   fraud,     Co.,  3  B'ttchf.  2.-5I. 

actual  or  presumptive,  and   tliis  although  it        Valued  policy  on  freightage  or  cargo: 
may  greatly  exceed  the  real  value :    Phanix    See  sec.  27-il),  infra. 
Jns.  Co.  V.  McLoon,  100  Mass.  475;  Sturm  v.         Valuation  of  profi':s:  See  see.  2740. 
Atlantic  etc.  Inn.  Co.,  G  Jones  &  8.  281;  S.  C,         Valued  policy  of  fire  insurance:  See  sec 
63  N.  Y.  77;  Alsop  v.  Commercial  Im.  Co.,  1     275l>,  2'Oiit. 

2737.  Partial  loss. 

Sec  2737.  A  marine  insurer  is  liable  upon  a  p.artial  loss,  only  for  such  pro- 
portion of  the  amount  insured  by  him  as  the  loss  bears  to  the  value  of  the 
whole  interest  of  the  insured  in  the  property  insured. 

Compare  with  section  2756,  stating  the  measure  of  indemnity  in  case  of  lire  insurance. 

2733.  Profits. 

Sec  2738.  "Where  profits  are  separately  insui-ed  in  a  contmct  of  luarine 
insurance,  the  insured  is  entitled  to  recover,  in  case  of  loss,  a  proportion  of 

45G 


Title  XI,  Cuap.  tl.]  MARINE  INSURANCE.  §§  2739-2742 

8uch  profits  equivalent  to  the  proportion  which  the  value  of  the  property  lost 
bears  to  the  value  of  the  whole. 

Profite:  Loomis  v.  Shaw,  2  Johns.  Cas.  30;  see  iit/ra,  sec.  2740;  see  note  to  repealed  section 
2710. 

2739.  Valuation  apportioned. 

Sec.  2739.  In  case  of  a  valued  polic}'  of  marine  insurance  on  freightage  or 
cargo,  if  a  part  only  of  the  subject  is  exposed  to  risk,  the  valuation  apjjlies  only 
in  proportion  to  such  part. 

2740.  Vrlualion  applied  to  profits. 

Sec  2740.  "When  profits  are  valued  and  insured  by  a  contract  of  marine 
insurance,  a  loss  of  them  is  conclusively  presumed  from  a  loss  of  the  property 
out  of  which  they  were  expected  to  arise,  and  the  valuation  fixes  their  amount. 

Harmonizes  with  section  2738. 

2741.  £sfimaling  loss  under  an  open  policy. 

Sec  2741.  In  estimating  a  loss  under  an  open  policy  of  marine  insurance, 
the  following  rules  are  to  be  observed: 

1.  The  value  of  a  ship  is  its  value  at  the  beginning  of  the  risk,  including  all 
articles  or  charges  which  add  to  its  permanent  value,  or  which  are  necessary  to 
prepare  it  for  the  voyage  insured; 

2.  The  value  of  cargo  is  its  actual  cost  to  the  insured,  when  laden  on  board, 
or  where  tbat  cost  cannot  be  ascertained,  its  market  value  at  the  time  and  place 
of  lading,  adding  the  charges  incurred  in  pux'chasing  and  placing  it  on  board, 
but  without  reference  to  any  losses  incurred  in  i*aising  money  for  its  purchase, 
or  to  any  drawback  on  its  exportation,  or  to  the  fluctuations  of  the  market  at 
the  port  of  destination,  or  to  expenses  incurred  on  the  way  or  on  arrival; 

3.  The  value  of  freightage  is  the  gross  freightage,  exclusive  of  primage, 
without  reference  to  the  cost  of  earning  it;  and, 

4.  The  cost  of  insurance  is  in  each  case  to  be  added  to  the  value  thus  estimated. 
Est'.mating  loss  under  open  policy. — The    purchase:'    0<jden  v.   Colmnlnaii  /«<.   Co.,  10 

follow  iiig  ii  taken  for  the  most  part  from  the  Johns.  273.      '  Or  to  any  drawback  on   its  ex- 

aunotaiions  cf  the  commissioners  of  the  pro-  portation:'  Ga/in  v.  Broome,  1  .Johns.  Cas.  120; 

posed  Civil  C(jdo  <i  New  York,  from  which  the  Suydam  v.  Marine  lii-s.  Co.,  1  Johns.  181 ;  il/ui- 

ahovo  section  is  drawn:  turn  v.  Columbian  Ins.  Co.,  10  Id.  73.     'Or  the 

"Subd.  1.  Value  of  the  ship :  2  Parsons  on  fluctuations  of  the  market  at  port  of  dcstina- 

Maritimu  Law,   70;    Kemble   \.  Boicne,  I   Cai.  tion,  or  expenses  incurred  on  tlie  way  or  on  ar- 

75;  and  SCO  "J  Ai uould  on  Ins.  1339;  Slaveus  v.  rival:'  Lawrence  v.  N.  Y.  Ins.  Co.,  3  Johns. 

Cotniihiftn  Ii<.s.  Co.,  3  Cai.  43.  Cas.  217. 

"Subd.  2.  Value  of  the  cargo.— 'Actual  "Subd.  3.  Value  of  freightage:  Stevens  r, 

cost  to  tiie  insured,  or  its  market  value  at  time  Columbian  Ins.  Co.,  3  Cai.  4.{. 

and  place  of  lading:'  3  Kent's  Com.,  ;«.'),  .330;  "Subd.  4.  Cost  of  insurance  added:  Og- 

Ga'mv.  llroomi',  I   Johns.  Cas.   120;  Slor;/  v.  den  v.  Col^unJlian  Iiu^.Co.,  10  Jolins.  273;  J/i/i- 

Undcd  Iim.  Co.,  7  Johns.  343.     If  this  rule  had  tu)vi  v.  Columbian  /;(<.  Co.,  Id.  73." 

not  l>eon  .'!0  long  cstablisiied,  its  justice  might  P^^rtial  loss  of  ship,  one  third  new  for  old: 

be  fjm  stioiicd:  See  Cojfin  v.  Neicburi/porl  ///s.  Sec.  274G. 

Co.,  9  Mass.   43.;.     'Adding  charges  incurred  Mr.   Barber,  Ins.,  see.   134,  comments  upon 

in  placing  it  on  board:'  See  Leroy  v.    Lfuit'd  some  of  the  clauses  of  this  section,  and  com- 

Ins.   C>>.,  7  .loans.  343;   Stevens  v.  Columbian  pares  them  with  the  Code  dc  Commerce  and 

Ins.  Co.,  .'i  Cai.  '1.).     '  But  without  reference  to  with  the  law  of  England, 
any  losses  incurred  in  raising  money  for  its 

2742.  Arrival  of  thing  damaged. 

Sec.  2742.  If  cargo  insured  against  partial  loss  arrives  at  the  port  of  destina- 
tion in  a  damaged  condition,  the  loss  of  the  insured  is  deemed  to  be  the  same 
p'-jportion  of  the  value  which  the  njarkct  price  at  that  port,  of  the  thing  so 
damaged,  boars  to  the  market  price  it  would  have  brought  if  sound. 

Pai-tiol  los.s  of  cargo,  insurer's  liability  is  damaged  condition  bears  to  the  value  of  the 
Bueh  proportion  of  the  valuation  of  the  cargo  cargo  not  dainagetl:  Law  re  we  \.  N.  Y.  Ins.  Co., 
named  in  the  policy,  or  estimated  as  spceiiietl  3  Johns.  Cas.  217;  Lamar  Ins.  Co.  v.  Ale- 
in  section  2741,  as  the  value  of  the  cargo  in  its     GUi'ihen,  54  111.  513. 

437 


§§  2743-2746  OBLIGATIONS.  [Div.  Ill,  Tart  IV, 

2743.  Labor  and  expenaes. 

Sec.  2743.     A  marine  insurer  is  liable  for  all  the  expense  attendant  upon  a 

loss  which  forces  the  ship  into  port  to  be  repaired;  and  where  it  is  agreed  that 

the  insured  may  labor  for  the  recovery  of  the  property,  the  insurer  is  liable  for 

the  expense  incurred  thereby,  such  expense,  iu  either  case,  being  in  addition 

to  a  total  loss,  if  that  afterwards  occurs. 

Suing  and  laboring  clause. — Expenses  re-  insured  against;  in  such  case  the  loss  was  pay- 

coverable    umler   tliis   clause:   See  Watnon   v.  able  under  tlie  insuring  clause  only.     This  de- 

ilariue   Iiut.    Co.,    7   Johns.    .'37;   Mn'jrat/i    v.  cision   is   criticised,  and  not  foUoweil,  hy  the 

Church,  1  Cai.  21G;  Cory  v.  BoyUlon  In-'^.  Co.,  Massachusetts   supreme   court  in  McUhexoJi  v. 

107  Mass.  140.     In  Alexander  v.  Sim  Matud  E'lnUa'de  Marine  Ins.  Co.,  IIS  Mass.  20d.    See, 

Ins.  Co.,  51   N.  Y.  233,  the   court  would   not  further,  3  Kent's  Com.,  12th  ed.,  *3t0,  note  1; 

allow,  under  tiiis  clause,  a  recovery  of  expenses  Barher  on  Ins.,  sec.  15G;  and  Lowndes'  General 

incurred  in  repairing  the  vessel  at  an  inter-  Average,  230  et  seq. 
mediate  port  for  damage  occasioned  by  perils 

2744.  General  average. 

Sec.  2744.     A  marine  insurer  is  liable  for  a  loss  falling  upon  the  insured, 

through  a  contribution  in  respect  to  the  thing  insured,  required  to  be  made  by 

him  towards  a  general-average  loss  called  for  by  a  peril  insured  against. 

Insurer's  liability  for  general  average:  See  thi?,  the  American  doctrine,  in  his  work  on  gen- 

Jutnel  V.  Marine  Ins.  Co.,  7  Johns.  412;    ]Vrtt-  eral  average,  233  et  seq. 

son  V.  2Inrine  Ins.  Co.,  Id.  .57;  Maj:/ratk  v.  Gaaaral  average  generally:  See  sees.  2152 

Church,  1  CaL  19G;  and  Lowndes's  discussion  of  et  seq. 

2745.  Contribution,  subrogation  of  insurer. 

Sec.  2745.  Where  a  person  insured  by  a  contract  of  marine  insurance  has  a 
demand  against  others  for  contribution,  he  may  claim  the  whole  loss  from  the 
insurer,  subrogating  him  to  his  own  right  to  contribution.  But  no  such  claim 
can  be  made  upon  the  insurer  after  the  separation  of  the  interests  liable  to  con- 
tribution, nor  when  the  insured,  having  the  right  and  opportunity  to  enforce 
contribution  from  others,  has  neglected  or  waived  the  exercise  of  that  right. 
[Amendme^il,  approved  March  30, 1874;  Amendments  1873-4,  259;  took  ejfect  July 
1,  1874.] 

Subrogation  of  insurer:  See  sec.  272 1.  "Without  the  qualification  contained  in   the 

Seethe  note  to  last  section.     The  last  sen-  amendment  the  subrogation  would  be  worthless, 

tence  in  the  above  was  added  at  the  racom-  and  serijus  injury  would  be  inHicted  upon  the 

mendatioa  of  tlie  code  examiners,  who   said:  insurer." 

2746.  One  third  new  for  old. 

Sec.  2746.     In  the  case  of  a  partial  loss  of  a  ship  or  its  equipments,  the  old 

materials  are  to  be  applied  towards  payment  for  the  new,  and  whether  the  ship 

is  new  or  old,  a  marine  insurer  is  liable  for  only  two  thirds  of  the  remaining  cost 

of  the  repairs,  except  that  he  must  pay  for  anchors  and  cannon  in  full,  and  for 

sheathing  metal  at  a  depreciation  of  only  two  and  one  half  per  cent  for  each 

month  that  it  has  been  fastened  to  the  ship. 

One  third  ne'wr  for  old.  The  following  plain  cordingly  the  assured  must  himself  bear  one 
reason  for  tliis  rule  is  given  in  2  Phillips  on  Ins.  third  part  of  the  expense  of  the  labor  and 
1431,  at  which  place  and  in  the  succeeding  materials  for  the  repairs,  and  this  deduction  ia 
pages  the  sul)jcct  of  the  aljove  section  is  fully  said  to  l)e  on  account  of  '  new  for  o'd,'  the  in- 
discussed:  "  Where  timbers  or  other  materials  surers  being  liable  for  only  two  thirds  of  the 
are  replaced  by  new,  the  vessel  when  repaired  cost  of  the  labor  and  materials." 
is  considered  to  be  better  than  before,  and  ac- 

45a 


2T56.  Measure  of  Indemnity.  If  there  is  no  valuation 
in  the  policy,  the  measure  of  indemnity  in  an  insurance 
against  flre  is  the  expense  [it  would  be  to  the  insured  at 
the  time  of  the  commencement  of  the  fire  to  replace]  the 
thing  lost  or  injured  in  the  condition  in  which  it  was  at  the 
time  of  the  injury;  but  the  effect  of  a  valuation  in  a  policy 
of  fire  insurance  is  the  same  as  in  a  policy  of  marine  msur- 
ance  (In  effect  from  and  after  April  15,  1909.  Stats.  1909. 
Chap.   604.)  Civ.    code,    1909. 


Title  XI,  Cu^r.  III.] 


FIRE  IXSURAXCE. 


§§  2753-2756 


CHAPTEIi  III. 
FIRE  INSURANCE. 


Section  2752  was  repealed  by  act  approved 
Marcli  liO,  1S74;  aiiieiulaieuts  1873-4,  239;  tuok 
effect  July  1,  1S74. 

The  original  section,  which   read  as  follows: 
"An  iiisiir;'nce  against  tire  is   not  affected  hy 
concealment,   nor  by  the   falaity   of  a   repre 
eentation  not  inserted  in  the  policy*,  thougii  in 


a  material  particular,  unless  made  with  a 
fraudulent  intent,"  was  re[jealed  at  the  sug- 
gestion of  the  code  examiners,  who  passed  this 
severe  criticism  upon  it:  "  Tlie  section  re- 
pealed is  unjust,  oppressive,  and  contrary  to 
public  policy.  It  is  alsD  inconsistent  with  the 
provisions  of  Sections  25G2  and  2oG3." 


2753.    Alteration  increasing  rit;k. 

Sec.  2753.  An  alteration  in  the  use  or  condition  of  a  thing  insured  from  that 
to  which  it  is  limited  by  the  policy,  made  without  the  consent  of  the  insurer, 
by  means  wi'chin  the  control  of  the  insured,  and  increasing'  the  risk,  entitles  an 
insurer  to  rescind  a  contract  of  fire  insurance. 


Alteration  iucreasiug  risk. — Wliere  the 
policy  is  silent  upon  the  subject,  an  alteration 
in  tiie  use  or  condition  of  the  premises  insured 
must,  as  a  general  rule,  materially  increase  the 
risk  in  order  to  render  the  contract  voidable: 
JoHfs  Mfg.  Co.  V.  Manufacturers'  Mut.  Ins. 
Co.,  8  Cush.  83;  Wood  v.  ilartjord  F.  Ins.  Co., 
13  Conn.  5.")3;  SewlcaU  v.  Union  etc.  Ins.  Co., 
.52  Me.  ISO.  But  as  the  rights  of  the  parties 
are  controlled  by  the  terms  of  their  con- 
tract, if  that  stipulates  against  the  use  of 
the  premises  for  certain  purposes,  or  tiie 
keeping  of  stipulated  articles  thereon,  the 
violation  of  this  agreement  is  not  tested  by 
the  effect  U[ion  the  risk.  It  makes  no  difierence 
wlicthcr  the  risk  is  increased  or  not:  Appleby 
V.  Fireman's  Ins.  Co.,  43  Barb.  454;  Appleby  w. 
Asior  F.  Inr..  Co.,  54  N.  Y.  253;  U'eHtfall  v. 
Hudson  River  F.  Lis.  Co.,  12  Id.  2S9;  U'ash- 
in'j'on  F.  Ins.  Co.  v.  Davidson,  30  Md.  01; 
McK  ombcr  v.  Howard  F.  Ins.  Co.,  7  Gray,  237. 
The  insurer  has  made  this  change  material,  and 
the  fact  that  the  loss  was  not  occasioned  by 
such  breack  of  the  contract  makes  no  difference: 


Jones  Mfrj.  Co.  v.  Manvfactnrers'  Mut.  Inn.  Co., 
supra;  Grant  v.  Howard  Ins.  Co.,  5  Hill,  10; 
Jffevson  Ins.  Co.  v.  Cotlieal,  7  Wend.  72.  See 
next  section;  compare  with  sec.  2011,  ante; 
and  for  a  complete  discussion  of  tlie  subject, 
see  Wood  on  Fire  Ins.,  sees.  220  et  seq. 

The  clause  in  the  policy  providing  that  a 
change  increasing  the  risk  shall  avoid  the  same  if 
made  without  tlie  consent  of  the  insurer  refers 
to  a  change  produced  by  the  act  of  the  insured, 
and  not  to  one  occasioned  by  accident,  or  by  a 
cause  over  which  the  insured  liad  no  control: 
Urenner  v.  Insurance  Co.,  51  Cal.  101. 

See  late  California  cases  in  regard  to  the 
alteration  or  increasing  the  risk  vitiating  the 
policy:  Glidding  v.  Inn.  Ass'n,  4  West  Coast 
Rep.  lOG;  Tischler  v.  Cal.  Farmers'  Mut.  Ins. 
Co.,  Id.  535. 

Keeping  hazardous  artdoles:  See  a  collec- 
tion of  decisions  by  the  editors  of  the  Insurance 
Law  Journal,  vol.  8,  p.  437;  see  also  Dennery 
v.  Home  Ins.  Co.,  44  Cal.  320,  for  a  breach  of 
the  condition  against  permitting  the  use  of 
kerosene  oiL 


2754.    Alteration  not  increasing  risk. 

Sec.  2754.  An  alteration  in  the  use  or  condition  of  a  thing  insured  from  that 
to  which  it  is  limited  by  the  policy,  which  does  not  increase  the  risk,  does  not 
affect  a  contract  of  fire  insurance. 


Alteration  not  inoreasing  risk.— The 
phraseology  of  this  section  is  somewhat  ambig- 
uous. "  Limited  "  cannot  mean  "stipulated," 
in  the  sense  that  if  the  policy  sti[)ulate3  for  tiio 
use  of  tlie  premises  in  a  particular  way  and 
against  any  other  use,  a  violation  of  this  stipu- 


lation will  not  affect  the  contract  unless  the 
violation  increases  the  lisk.  The  extent  of  the 
alteration  in  such  case  is  not  material,  as  it  is 
sliown  in  the  note  to  the  preceding  section. 
Probably  "limited  "  is  to  be  taken  as  a  term  of 
description  merely. 


2755.   Act.'i  of  the  insured. 

Sec.  2755.  A  contract  of  fire  insurance  is  not  affected  by  any  act  of  the  insured 
subsequent  to  the  execution  of  the  polic}',  which  does  not  violate  its  provisions, 
even  though  it  increases  the  risk  and  is  the  cause  of  a  loss. 


2756.    Measure  of  indemnity . 

Sec  275G.  If  there  is  no  valuation  in  the  policy,  the  measure  of  indemnity 
in  an  insurance  against  fire  is  the  expense,  at  the  time  that  the  loss  is  payable, 
of  replacing  the  thing  lost  or  injured  in  the  condition  in  which  it  was  at  the 
time  of  the  injury;  but  the  effect  of  a  valuation  in  a  policy  of  fire  iusuruuce  ia 
the  same  as  in  a  policy  of  maiine  insurance. 

459 


§§  2762,  2703 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


Measure  of  indemnity.— "When  there  is 
no  valuation,  llie  loss  is  estimated  to  be  the  ex- 
pense of  placing  the  thing  injured  in  the  con- 
dition it  was  at  the  time  of  the  injury:  .See 
Nihlo  V.  KorLli  Am.  Ins.  Co.,  1  Sandf.  551; 
but  a  valuation  has  the  like  effect  as  in  a  marine 
iusurance;  tliat  is  to  say,  a  valuation  in  a  lire 
policj',  as  well  as  in  a  marine  insurance,  is  con- 
clusive: llarr'ix  v.  Enjle  Ins.  Co.,  5  Jolms.  :^j8; 
llolmts  V.  Cliurlesloujii  Ina.  Co.,  10  Met.  211. 


Though  this  rule  has  been  sometimes  disap- 
proved, no  change  has  been  made  in  it.  It  ia 
deemed  just  and  reasonable  to  let  it  stand:" 
Commissioners'  note. 

Valued  policy  in  marine  insuranoe:  See 
ante.  sec.  '2~?,Q. 

For  a  d3finltion  of  total  lo33  of  a  building 
by  lire,  see  IViUiams  v.  II<trfj'or<l  Lih.  Co.,  54 
Cal.  412;  and  a  questioning  of  the  correctness 
of  that  decision  in  Barber  on  Ins.  41G. 


CHAPTER  IV. 

LIFE  AND  HEALTH  INSURANCE. 

2762.  Jii^nrance  upon  life,  when  payable;. 

Sec.  27G2.  An  insurance  upon  life  ma}''  ba  made  payable  on  the  death  of  the 
person  or  on  his  survivin^f  a  spacified  period,  or  pariodically  so  long  as  he  shall 
live,  or  otherwise  contingently  on  the  continuance  or  determination  of  life. 

Mutual  Iff 3,  li3:di!i,  and  aooidoiit  insur-  C.  L.  J.  4S1,  considering  some  of  the  (pies- 
ance  corpora :io:ij:  See  ante,  sec.  41)7.  tinns  connected  with  tliese  societies  as  iusur- 

Mutual  b3a3.ii  sojieiies:  See  decision  by  anc-' co.npanies;  sec  also  a  valuable  monograph, 
the  superior  court  of  San  Francisco,  11  Pac.     Hirschl  on  Fraternities,    isaa  aide,  sec.  45L 

2763.  Iiii^urable  intered. 

Sec  27G3.     Every  person  has  an  insurable  interest  in  the  life  and  health: 

1.  Of  himself; 

2.  Of  any  person  on  whom  he  depends  wholly  or  in  part  for  education  or 
support; 

3.  Of  any  person  under  a  legal  obligation  to  him  for  the  payment  of  money, 
or  respecting  property  or  services,  of  which  death  or  illness  might  delay  or  pre- 
vent the  performance;  and, 

4.  Of  any  person  upon  whose  life  any  estate  or  interest  vested  in  him  de- 
pends. 


Insurable  intsrest  on  life.— The  various 
subdivisions  of  this  section  indicate  tliat  it  was 
the  design  of  the  commissioners  to  make  t'le 
jiecuniary  interest  in  the  life  of  another  t!io 
ground  for  allowing  an  insurance  upon  such 
other's  hfc.  On  the  otiier  hand,  that  t!ie  inter- 
est need  not  be  capable  of  pecuniary  estima- 
tion. See  Wantoi-k  v.  JJaris,  104  U.  S.  775. 

Subd.  2.  Intsre  ^t  in  life  of  ons  furnish- 
ing support. — As  examples  of  the  interests 
insura'dc  uikIlt  this  subdivision,  see  tliat  of  a 
wifespiiughig  from  tlie  husband's  duty  to  main- 
tain: Bilker  v.  lluioji  Mat.  Ins.  Co.,  4."]  N.  Y. 
82.'>;  TIiomp:<oii  v.  .1/;;.  elc.  Iiix.  Co.,  4j  Id.  071; 
Garnht  v.  ( 'ovcnant  Mat.  L.  I.  Co.,  50  Mo.  43; 
Uqidiahle  L.  I.  Co.  v.  Paterwn,  41  Ga.  3;]S. 
And  t'.ii.-;,  althougli  tlie  marriage  may  have  been 
illegal,  if  tlie  man  treats  tlie  woman  as  his  wifj, 
supports  licr,  and  slie  is  dependent  on  him  for 
support:  E'luitalile  L.  /;(s.  Go.  v.  Paler^on, 
eupra.  A  uonian  engaged  to  be  married  has 
an  insurable  interest  ia  the  life  of  her  betrothed; 
as,  "had  lie  lived  an  1  violated  the  contract, 
she  would  h  ive  lia  I  her  action  for  damages; 
had  he  observed  and  kept  the  same,  then  as 
Ids  wife  .s!ie  W)uld  have  been  entitled  to  sup- 
port:" Chliholm  V.  J\'cU.  Capilol  L.  Ins.  Co.,  52 
Mo.  21  :i. 

A  child  mu'^t  liave  a  "  well-founded  or  reason- 
able expect.ition  of  some  pecuniary  advania'^o 
to  Ije  derived  from  tlie  contmuancc  of  the  life 
of  the  fatlier,"  to  'jive  insurable  interest  in  the 
life  of  tliefathcr;  Oaardiaa  M.  L.  Iiin.  Co.  v.  JIo- 


fjaii,  SD  111.  .35.  That  a  father  has  an  insurable 
interest  in  a  son's  life,  wliei-e  llie  death  of  the 
SD.i  wdl  work  some  pecuniary  loss  to  the  father, 
s '0  lil'd'-heH  V.  Union  L.  Li^.  Co.,  4j  Mc.  104; 
Looinii  V.  Eaih  L.  tfc  J/eid'h  Ins.  Co.,  0  Gray, 
.313;  f/oyt  v.  IV.  Y.  Life  /,rs'.  Co.,  .3  Bosw.  440; 
lie-ierre  Life  Ins.  Co.  v.  Kanr,  81  I'a.  St.  154. 
AJl  of  tiiese  cases,  it  is  observable,  seem  to  ad- 
mit tliat  the  mere  relationsliip  is  sulhcient  to 
support  the  policy. 

A  ^ister  has  an  insurable  interest  in  the  life 
of  a  b;-otlicr  on  whom  she  \i  dependent  for  sup- 
p  >rt:  Lird  V.  Da'l,  12  Mass.  I  15;  S.  C,  7  Am. 
Uej.  3S,  in  the  note  to  wlach  this  subject  is 
di-icussel.  Buta  brother,  assiicli,  in  the  life  of 
a  brother:  Lewis  v.  Phcenix  JIni.  Life  Ins.  Co., 
.3D  Conn.  103;  or  an  ur.cle  in  the  life  of  his 
nephew:  Siixjleton  v.  Si.  Lonis  JIut.  Ins.  Co., 
G.j  Ml.  (53 — lias  no  insurable  interest. 

GTod.  3.  Debtor  and  creditor,  et3. — A 
creditor  has  an  insurable  interest  ia  the  life  of 
his  <lebtor  to  tlie  amount  of  the  debt:  Brock' 
n-i/  V.  Mnt.  Benefit  Ins.  Co.,  9  Fed.  Hop.  249; 
liana's  V.  Am.  Mitt.  L.  In.<.  Co.,  27  N.  V.  2S2; 
Marred  v.  Trenton  Mat.  L.  Ins.  Co.,  10  Gush. 
232;  Ij'iss  on  Life  Ins.,  sec.  27;  May  on  Ins.  108. 

.\3  illustrating  the  second  hr.uieh  of  tliissub- 
diviiion  of  the  above  section,  ib  has  been  de- 
cided t  lab  one  who  advances  to  anotlier  money 
or  out  it  for  a  venture  of  whicli  botii  are  to 
sli.ini  tlyj  profits,  the  former  has  an  insurable 
interest  in  tlie  life  of  the  litter:  Morrell  v. 
Trenttn  Mat.   L.  ds  F.  I.  Co.,  10  Gush.   282; 


4G0 


Title  XI,  Chap.  IV/  LIFE  AND  HEALTH  INSURANCE.  §§  2764-2766 

IToyt  V.  New  York  Life  Tns.  Co.,  3  Cosw.  410;         See  a  note  in  22  Am.  L.  Reg.  ."jSO,  upon  this 

Mu!.('rv.  EcKjle  L.  &  Health  Ins.  Co.,  'J  K.   I),  sulijcct. 

Smitli,  2G8;  />»'i,v  v.   Co7m.   Mid.    J..   /.   Co.,        Insurable    interest    generally:  See  sees. 

2,]  Conn.  2U;   Trenton  Mut.  L.  cfc  F.  I.  Co.  v.  2340  et  SL(i. 

John><on,  24  N.  J.  L,  576. 

2.164:.    A^ngnee,  etc.,  of  life  policy  need  have  no  interest. 

Sec.  27G4.  A  policy  of  iusurauce  upon  life  or  health  may  pass  by  transfer, 
will,  or  succession  to  any  person,  whether  he  has  an  insurable  interest  or  not, 
and  such  person  may  recover  upon  it  whatever  the  insured  mi^ht  have 
recovered. 

Assigning  policy  to  one  having  no  interest  fore  it  is  contrary  to  public  policy  to  validate 

in  thu  lifo  insuicil.     Decisions  suiiportii'g  tlie  sucli    assignments:    See    Larher   on    Jus.    417; 

view  expresbcd  in  this  section  arc:  Si.  John  v  and  note  in  22  Am.  L.  lie  '.  ;]02.     The  above 

Americnn  Mut.  L.  Ins.  Co.,  13  N.  Y.  .'il;  I'al-  section,    however,    is   consistent   with   section 

ton  w  NatioiKil  Fluid  Life  Ass^n  Co.,  20  Id.  32;  2ooo,  aiilc. 

Fairchild  v.  N.  E.  Mut.  Ass'n,  51  Vt.  023.  Assignment  as  collateral  security. — On 

Tlierc  is,  however,  some  diversity  of  opinion  an  assignment  of  tlie  policy  us  collateral  security 

upon  the  right  of  a  man  to  assign  to  one  having  for  advances  made  by  the  assignee,  he  ac^iuirea 

no  interest  in  tlie  continuance  of  the  life  insured,  tlie  legal  title  in  the  policy,  and  cannot  be  made 

some  of  the  cases  holding  that  in  the  absence  to  surrender  it  until  repayment  of  his  ad  v;ince3: 

of  such  interest  the  assignee's  position  is  Iiostile  Gllman  v.  Curtis,  4  West  Coast  Rep.  42'J;  S.  C, 

to  the  coutiuuauce  of  the  life,  and  that  there-  2  Id.  135. 

2765.  Notice  of  transfer. 

Sec.  27G5.  Notice  to  an  insurer  of  a  transfer  or  bequest  thereof  is  not  neces- 
Bary  to  preserve  the  validity  of  a  policy  of  insurance  upon  life  or  health,  unless 
thereby  expressly  required. 

2766.  Pleasure  of  indemnity. 

Sec.  27CG.     Unless  the  interest  of  a  person  insured  is  susceptible  of  exact 

pecuniary  measurement,  the  measure  of  indemnity  under  a  policy  of  insurance 

upon  life  or  health  is  the  sum  fixed  in  the  policy. 

Measure  cf  indemnity.— Is  this  section  ex-  Miller  v.  Eagle  Life  and  Health  Tna.  Co.,  2  E. 

elusive,  so  as  to  limit  the  recovery  to  tlic  amount  D.  Smith,  2G8,  302,  303;  Cammackv.  Leivix,  17 

of  the  policy,  only  where  the  interest  is  not  Wall.    043;    Connecticut   M.    L.    Iiu,    Co,    V. 

capable  of  estimation,  quaere:  Consult  St.  John  Schaejcr,  104  U.  S.  457. 
V.  American  Mut.  L.  lua.  Co.,  13  N.  Y.  31; 

An  Act  to  regulafe  the  forfeiture  of  policies  of  life  insurance, 

[Approved  February  2,  1872;  1871-2,  59.] 
Life  policies  not  to  become  forfeited  except  to  (i  certain  extent. 

Sr.CTiuN  I.  No  policy  of  insurraice  im  life  hereafter  issued  by  any  company  incorporated 
Tinder  tlie  laws  of  this  state  shall  be  forfeited  or  become  void  by  the  non-payment  of  premium 
thereon,  any  further  than  regards  the  right  of  the  party  insured  therein  to  have  it  continued  in 
force  buyonil  a  ceitain  period,  to  be  determined  as  follows,  to  wit:  the  net  value  of  the  policy 
•when  the  premium  becomes  due  and  is  not  paid  shall  be  ascertained  according  to  the  American 
experience  life-table  rate  of  mortality,  with  interest  at  four  and  a  half  per  centum  per  annum, 
or  the  same  interest  which  has  been  assumed  in  linding  the  net  value  of  the  policy,  after  deduct- 
ing from  such  net  value  any  indebtedness  to  the  com|)any,  or  notes  held  by  the  company  against 
the  insured,  which  notes,  if  given  for  premium,  shall  then  be  canceled.  Four  hlths  of  whafe 
rem;. ins  shall  be  considoi'ed  as  a  net  single  premium  of  temporaiy  insurance,  and  the  term  for 
v/liich  it  will  insure  shall  bo  determined  according  to  the  age  of  the  party  at  the  time  of  the 
lapse  of  piemiuu)  and  the  assumption  of  mortality  and  interest  aforesaid. 
Insnraiice  due  on  diath  of  insured. 

Skc.  2.  If  the  death  of  the  party  occur  within  the  term  of  the  temporary  insurance  covered 
by  the  value  of  tlie  i^olicy,  as  determined  in  the  previous  section,  and  if  no  condition  of  the 
insurance  other  than  the  payment  of  the  premium  shall  have  been  violated  by  tlie  iusui-cd,  the 
company  shad  be  iiound  to  pay  the  amount  of  the  policy  the  same  as  if  there  had  been  no  lapse 
of  preniium,  anything  in  the  policy  to  the  contrary  notwithstanding;  jiruvided,  hoivinr,  that 
notice  of  the  claim  and  proofs  of  tleath  shall  be  submitted  to  the  company  within  six  months  of 
the  decease;  and  juovided  also,  that  the  com  [lany  shall  have  the  right  to  deduct  from  the  amount 
insured  in  the  policy  the  amount,  at  ten  per  centum  per  annum,  of  the  premium  that  has  been 
iorbome  at  the  time  of  the  death. 

Skc.  3.     This  act  shall  take  effect  immediately. 

461 


§§  2772,  2773 


OBLIGATIONS. 


[Div.  Ill,  Pakt  IV, 


TITLE   XII. 

INDEMNITY. 
2772.    Indemnity,  what. 

Sec.  2772.  Indemnity  is  a  contract  by  which  one  engages  to  save  another 
from  a  legal  consequence  of  the  conduct  of  one  of  the  parties,  or  of  some  other 
person. 

Indemnity "Bsfore  the  adoption  of  tli9 

codes,  it  was  decided  by  the  supreme  court  of 
this  state  that  indemnity  must  be  given  in  the 
following  cases:  In  an  action  on  a  certificate  of 
deposit  lost,  the  complaint  must  be  accompanied 
with  a  bond  of  idemnity  against  future  claims 
for  its  payment:  Wellon  v.  Adams,  4  Cal.  39. 
So  must  the  complaint  be  accompanied  by  in- 
demnity bond  filed  for  a  recovery  of  judgment 
upon  any  lost  instrument:  Id.  So  on  a  lost  or 
destroyed  negotiable  instrument:  Price  v.  Dun- 
lap,  b  Id.  483.  Tliis  case  is  affirmed  in  Castro 
V.  Wetmo7-e,  16  Id.  379;  as  to  averment,  and  as 
to  identity,  before  action:  Randolph  v.  Harris, 
28  Id.  5G4.  Indemnity  must  be  given  sheriff 
to  levy  on  and  sell  property  claimed  by  third 
party,  and  found  to  be  his  by  sheriff's  jury,  be- 
fore he  sells  it  under  execution  as  the  defend- 
ant's property:  Strong  v.  Patterson,  6  Id.  157. 
In  such  case  of  levy  sheriff's  right  to  notice 
and  demand  by  third  party  is  not  waived  by 
indemnity  bond:  Taylor  v,  Seymour,  Id.  514. 
Indemnity  to  witness  to  divest  iiim  of  interest 
affecting  his  competency:  Peraltav.  Castro,  Id. 
357.  These  cases  arc  no  longer  in  point,  since 
'  interest '  does  not  render  a  witness  incompe- 
tent: See  Code  Civ.  Proc,  sec.  1879;  old  Prac- 
tice Act,  sec.  391.  See  also,  as  to  indemnity  to 
sheriff  to  sell  property  under  execution  claimed 
by  third  party,  Davidson  v,  Dallas,  8  Cal.  251. 
Doubted  in  same  case:  15  Id.  80.  Administra- 
tor takes  indemnity  bond  to  make  premature 
sale,  and  the  bond  held  to  be  legal  and  binding: 
Comstock  v.  Breed,  1 2  Id.  289.  lieceiver's  bond: 
Adams  v.  iJasfcell  d'  Wood,  6  Id.  475.  Bond 
to  idemnify  sheriff  against  any  judgment  for 
levying  upon  and  selling  wrong  property  is  in- 
dependent of  his  official  bond:  Fratt  v.  iVhite, 
13  Id.  521.  Agreement  so  to  indemnify  sheriff 
is  valid,  if  in  good  faith,  to  enforce  a  legal 
right:  Stark  v.  Ilaneij,  18  Id.  622;  but  if  it  is 
to  indemnify  for  committing  a  trespass,  it  is 
not  valid:  Id.;  see  also  Dennis  v.  Goddnrd,  23 
Id.  101;  lioussin  v.  Stewart,  33  Id.  208.  To 
recover  on,  must  have  paid  the  judgment;  it  is 
not  sufficient  that  judgment  is  rendered:  Lott 
V.  Mitchell,  32  Id.  23.  Indemnifying  sheriff- 
specifying  if  certain  stock  did  not  bring  a  cer- 
tain amount  obligors  would  make  up  deficiency 
is  binding:  llcdleck  v.  Moss,  22  Id.  2o6.  Joint 
obligors  jointly  liable  as  trespassers  with  sher- 
iff: Lewis  V.  Johns,  34  Id.  629.  Costs  by  way 
of  indemnity  ought  not  to  be  taxed  in  nonsuit: 
Rice  V.  Leonard,  5  Id.  61.  Landlord  not  bound 
to  indemnify  a  tenant  evicted  by  a  wrong-doer: 
Schillinj  V.  Holmes,  23  Id.  227.     When  a  writ 


of  possession  is  delivered  to  sheriff  to  be  exe- 
cuted, and  ho  finds  other  persons  than  those 
named  therein  in  possession,  he  may  require 
indemnity  bond  if  he  has  a  reasonable  doubt  of 
his  official  rights:  Long  v.  Neville,  36  Id.  455:" 
Commissioners'  note. 

WTien  promise  to  indemnify  -witliin  the 
statute  of  frauds. — When  the  promise  is  not 
collateral  to  any  liability  on  the  part  of  another, 
either  express  or  implied,  it  is  not  witiiin  the 
statute;  but  when  the  promise  of  indemnity  is 
in  fact  a  promise  to  pay  the  debt  of  another, 
then  clearly  such  promise  is  within  the  statute, 
and  the  fact  that  it  is  in  form  a  promise  to  in- 
demnify will  make  no  difference.  Thus  a  prom- 
ise by  one  person  to  indemnify  another  against 
loss  or  damage,  in  becoming  surety  for  a  third 
person  on  an  undertaking  in  replevin,  has  been 
lield  to  be  within  the  statute:  Easter  v.  White, 
12  Ohio  St.  219;  Kingslexj  v.  Bilcombe,  4  Barb. 
131.  For  further  examples  where  tlie  circum- 
stances were  held  to  bring  the  pro.mise  within 
the  statute,  see  Brown  v.  Adams,  1  Stew.  51; 
Dranghan  v.  Bunting,  9  Ired.  L.  10;  Simpson 
v.  Nance,  I  Spears,  4;  Martin  v.  Blnck.  20  Ala. 
309;  Brush  v.  Carpenter  6  Ind.  78;  Macey  v. 
Childress,  2  Tenn.  Ch.  433. 

Where,  however,  there  is  no  collateral  obliga^ 
tion,  as  where  one  party  promises  to  indenmify 
another  if  he  will  commit  a  trespass  in  order  to 
raise  a  question  of  title,  the  court  said:  "The 
promise  was  not  to  indemnify  for  the  default  of 
another,  but  was  made  to  the  plaintiff  himself 
for  an  act  to  be  done  by  him  as  the  servant  of 
the  defendant:"  Per  lladcliff,  in  Allaire  v. 
Ouland,  2  Johns.  Cas.  52;  and  see  Marcy  v. 
Crawford,  16  Conn.  549;  Wild  v.  Nichols,  17 
Pick.  538;  Chaj/man  v.  Boss,  12  Leigh,  563. 
For  cases  holding  or  tending  to  establish  that 
under  various  circumstances  a  promise  to  in- 
demnify need  not  be  in  writing,  see  Barry  v. 
Hansom,  10  N.  Y.  462;  Jlendrick  v.  Whitte- 
more,  105  Mass.  23;  Whitehouse  v.  Hanson,  42 
N.  H.49;  Keith  v.  Goodwin,  31  Vt.  268;  Byera 
V.  McClanahan,  6  Gill  &  J.  250;  Lucas  v.  Cham- 
berlain, 8  B.  Mon.  276;  Marsh  v.  Consolidation 
Bank,  48  Pa.  St.  510;  Jones  v.  Shorter,  1  Ga. 
294;  Shook  v.  Vanma'er,  22  Wis.  507;  Townsley 
V.  Sumrall,  2  Pet.  170;  Emerson  v.  Slater,  22 
How.  28;  Hojm  v.  Bray,  51  Ind.  555;  Goodsj)eed 
V.  Fuller,  46  Me.  141;  Tirrell  v.  Maxwdl,  23 
Oliio  St.  383;  Pianlett  v.  Bfodgpft,  43  Am.  Dec. 
603.  In  the  last  case,  held,  an  implied  promise 
of  indemnity  arises  on  directing  a  sheriff  to 
serve  writ  in  a  particular  manner. 


2773.   Indemnify  against  future  wronqful  act  void. 

Sec.  2773.  An  agreement  to  indemnify  a  person  against  an  act  thereafter  to 
be  done  is  void,  if  the  act  be  known  by  such  person  at  the  time  of  doing  it  to 
be  unlawful.  [Amendment,  approved  March  30, 1874;  Amendmeiii-^  1873—1,  259; 
took  effect  July  1,  1874.] 

462 


Title  XII.] 


INDEMNITY. 


§§  2774-2776 


Void  agreement  to  indemnify  act  appar- 
ently lawful. — Where  the  person  to  be  in- 
demuitied  did  not  know  the  act  to  be  unlawful, 
its  illegality  not  being  apparent,  the  person  in- 
demnifying will  be  held  liable  on  his  contract 
whether  be  knew  of  the  illegality  of  the  act  or 
not:  Couentry  v.  Barton,  8  Am.  Dec.  376;  Howe 
V.  Biiffah  etc.  R.  Co.,  37  N.  Y.  209;  Stone  v. 
Hooker,  d  Cow.  154;  Allaire  v.  Oiiland,  2  Johns. 
Cas.  52;  Moore  v.  Appleton,  26  Ala.  G3.3;  Avert/ 
V.  Haheif,  14  Pick.  174;  Davis  v.  Arledge,  30 
Am.  Dec.  360;  Ives  v.  Jones,  40  Id.  421,  and 
note  425;  Marqi  v,  Crawford,  41  Am.  Dec.  158. 

Testing  a  legal  right. — Where,  however,  the 
parties  are  acting  in  good  faith,  with  the  bona 
fide  intention  of  enforcing  or  testing  what  they 
honestly  consider  a  legal  right,  the  contract  of 
indemnity  will  not  he  held  void,  although  a 
trespass  is  in  fact  committed:  Stark  v,  Raney,  18 
Cal.  622;  Roussinv.  Stewart,  33  Id.  208;  Moore 
V.  Appleton,  26  Ala.  633;  Anderson  v.  Farns,  7 
Blackf.  343;  Jacobs  v.  Pollard,  10  Cush.  288; 
Forniquet  v.  Tegarden,  24  Miss.  96;  Pierson  v. 
Thompson,  1  Edw.  Ch.  212. 

Apparently  unlawful — Where  the  indem- 
nified act  is  evidently  an  illegal  one,  as  where  it 
is  criminal  in  its  nature,  it  can  hardly  be  pre- 
sumed that  the  indemnified  party  is  ignorant  of 
its  character,  and  the  contract  falls:  Shackfll  v. 
i?os/>r,  3  Scott,  59  (libel);  Pierson  v.  Thompson, 
1  Edw.  Ch.  212  (assault  and  battery);  Ilayden 
V.  Davis,  3  McLean,  276  (void  bank  note).  In 
Cumpston  v.  Lambert,  the  court  said,  referring 
to  the  case  of  Coventry  v.  Barton,  17  Johns, 
144,  S.  C,  8  Am.  Dec.  376:  "That  case  differs 
from  the  present  one  in  this,  that  it  was  a  tres- 
pass to  property,  whereas  this  was  a  direct 
assault  on  the  person;  that  was  a  case  where 


the  person  committing  it,  at  the  time,  was  en- 
gaged in  doing  what  he  was  told  to  do,  to  wit, 
work  on  the  road  under  tlie  ('irection  of  the 
overseer,  who  was  supposed  to  know  what  was 
to  be  done,  and  who  for  the  time  being  had  the 
right  to  control  his  labor.  •  »  *  We  have 
seen  no  case  where  it  has  been  held  that  a  con- 
tract to  do[)rive  a  person  of  his  liberty,  in  the 
first  instance,  or  to  commit  an  actual  assault 
on  the  person,  where  such  arrest  or  assault  was 
illegal,  has  been  held  to  be  binding."  And 
see  Columbia  Bank  etc.  v.  Haldcrman,  42  Am. 
Dec.  229.  and  note  (conUary  to  statute). 

In  violation  of  sheriff^s  diify,  if  the  act  in- 
demnified against  is,  the  bond  is  void:  Ilodsdon 
v.lVilkins.j  Greenl.  I \S  (precipe);  Collier  v. 
Windham,  27  Ala.  291  (execution);  Greemoood 
V.  Colcock,  2  Bay,  67  (execution);  Renfro  v. 
Heard,  Id.  23  (selling  exempt  property); 
Chapman  v.  Douglas,  5  Daly,  244  (seizing 
goods  conceded  to  belong  to  third  person); 
Biiffendeau  v.  Brooks,  20  Cal.  691  (selling  in 
violation  of  injunction  ordered);  Ayer  v.  Hutch- 
ins,  4  Mass.  370  (escape);  Churchill  v.  Perkins, 
5  Id.  54  (discharge  of  prisoner);  Webbers  v. 
Blount,  19  Wend.  188  (Id). 

Levy  execution — Title  doubtfuL — It  ia 
settled  beyond  question  that  when  a  sheriff, 
being  about  to  levy  on  goods  the  title  to  which 
is  doubtful,  takes  a  bond  from  the  execution 
debtor  to  indemnify  him  from  the  consequences 
of  the  act,  the  bond  is  valid:  Wolfe  v.  McClure, 
79  111.  504;  Anderson  v.  Farns,  7  Blackf.  343; 
Moore  v.  Allen,  25  Miss.  363;  Flint  v.  Yoimg, 
70  Mo.  221;  Heinmidler  v.  Gray,  44  How.  Pr. 
260;  Preston  v.  Yates,  24  Hun,  534;  Miller  v. 
Rhoades,  20  Ohio  St,  494;  Loew  v.  Stocker,  68 
Pa.  St.  226;  Dabney  v.  Catletl,  12  Leigh,  385. 


2774.    Indemnity  for  a  past  wrongful  act  valid. 

Sec.  2774.  An  agreement  to  indemnify  a  person  against  an  act  already  done 
is  valid,  even  though  the  act  was  known  to  be  wrongful,  unless  it  was  a 
felony. 


Employer  and  employee — The   implied 

contract  or  liability  of  the  employer  to  answer 
for  injuries  to  his  employee,  occurring  in  his 
service  from  extraordinary  and  unusual  causes 
of  which  the  employer  was  cognizant,  and  of 
which,  nevertheless,  he  neglected  to  inform  his 
employee,  is  not  affected  by  the  fact  that  the 
danger  known  to  the  employer  arises  from  the 
felonious  or  tortious  designs  of  third  persons, 
acting  ill  hostility  to  the  employer:  Baxter  v. 
Roberts,  44  Cal.  188. 

Negligence  of  sheriff. — If  in  an  action  by 
A.  against  B.  the  officer,  although  directed  to 
attach  only  specific  property  of  B.,  attaches 
goods  of  C,  and  A.,  then  knowing  tliat  C. 
claimed  somo  of  the  goods,  gives  the  officer  a 


bond  of  indemnity  against  all  suits,  etc., 
"by  reason  of  the  said  attachment,"  A.  becomes 
liable  for  a  subsequent  conversion  of  the  goods 
by  a  sale  by  the  officer:  Knight  v.  Nelson,  117 
Mass.  4.J8;  see  Hall  v.  Iluntoon,  17  Vt.  244 
(sheriff's  past  neglect);  Griffiths  v.  Harden- 
bergh,  41  N.  Y.  464  (levy);  Given  v.  Driggs,  1 
Cai.  (Kent,  J.)  450  (escape);  Doty  v.  Wilson,  14 
Johns.  378;  Id, 

Undertaking  illegally  exacted — An  un- 
dertaking exacted  by  a  sheriff  before  releasing 
property  which  he  has  ascertained  to  be  exempt 
from  execution  is  illegal,  as  beyond  tlie  author- 
ity of  the  sheriff,  and  void  for  want  of  considera- 
tion: Servanti  v.  Lusk,  43  Cal,  238. 


2775.  Indemnity  extends  to  acts  of  agents. 

Sec.  2775.  An  agreement  to  indemnify  against  the  acts  of  a  certain  person 
applies  not  only  to  his  acts  and  their  consequences,  but  also  to  those  of  hia 
agents. 

2776.  Indemnity  to  several. 

Sec.  277G.  An  agreement  to  indemnify  several  i)ersons  applies  to  each .  unless 
a  contrary  intention  appears. 

463 


§§  2777,  2773  OBLIGATIONS.  [Div.  Ill,  Part  IV, 

2777.  Prn^ons;  indcmnif\jmg  liahh'  joi»fhj  or  sr-vcrnVy  with  p.'.rson  iiidi'mnififid. 
Sec.  2777.     One  who  indemnities  anolber  af;-ainst  au  act  to  bo  done  by  tlie 

latter  is  liable  jointly''  with  the  persou  indemuiiied,  and  separately  to  every 
person  injnred  by  such  act. 

Sec  note  to  sec.  1I77-,  awte,  and  Lewis  v.  Joh'is,  31  Cal.  G20. 

2778.  Unit's  for  interpreting  agreement  of  indemnity. 

Sec.  2778.  In  the  interpretation  of  a  contract  of  indemnity,  the  folloTvii  g 
rules  are  to  be  aj? plied,  unless  a  contrary  intention  appears: 

1.  Uj)ou  an  indemnity  against  liability,  expressly,  or  in  other  equivalent 
terns,  the  porson  indemuiiied  is  entitled  to  recover  upon  becoming  liable; 

2.  Uj^on  an  indemnity  against  claims,  or  demands,  or  damages,  or  costs, 
expressly',  or  in  other  equivalent  terms,  the  person  indemnified  is  not  entitled 
to  recover  without  payment  thereof; 

3.  An  indemnity  against  claims,  or  demands,  or  liability,  expressly,  or  in  other 
equivalent  terms,  embraces  the  costs  of  defense  against  such  claims,  demands, 
or  liability  incurred  in  good  faith  and  in  the  exercise  of  a  reasonable  discretion; 

4.  The  person  indemnifj-ing  is  bound,  on  request  of  the  person  indemnified, 
to  defend  actions  or  proceedings  brought  against  the  latter  in  respect  to  the 
matters  embraced  by  the  indemnity;  but  the  persou  indemnified  has  the  right 
to  conduct  such  defenses  if  he  chooses  to  do  so; 

5.  If,  after  request,  the  person  indemnifying  neglects  to  defend  the  person 
indemnified,  a  recovery  against  the  latter,  suffered  by  him  in  good  faith,  is  con- 
clusive in  his  favor  against  the  former; 

6.  If  the  person  indemnifying,  whether  he  is  a  principal  or  a  surety  in  the 
agreement,  has  not  reasonable  notice  of  the  action  or  proceeding  against  the 
person  indemnified,  or  is  not  allowed  to  control  its  defense,  judgment  against 
the  latter  is  only  presumptive  evidence  against  the  former; 

7.  A  stipulation  that  a  judgment  against  the  ])erson  indemnified  shall  be  con- 
clusive upon  the  person  indemnif^-ing  is  inapplicable  if  he  had  a  gooil  defense 
upon  the  merits,  which,  by  want  of  ordinary  care,  he  failed  to  establish  in  the 
action. 

Subd.  1.    Indemnity  against  liability.—  for  the  breach  thereof.     Thits,  for  example,  a 

When  a  covenant  is  m  ule  to  indemnify  ai^amst  contract  to  pay  a  debt,  or  to  disuliarje  a  liabil- 

a  debt  or  duty  wiiich  may  accrue  in  the  future,  ity  then  exi.-sting,  no  tune  being  specified,  is  a 

a  liability  to  suit  is  a  bre.ich,  and  recovery  may  promise  to  pay  it  when  due;  or  if  a'leady  ilue, 

be  had  to  t'le  extent  of  the  debt  or  duty  to  then  to  i)ay  it  immediately,  or  wilirn  reasoa- 

which  tlie  indemnitv  applies;  /?<6''r/.s'0/<  V.  J/o;--  able  time:   Furiiafi  v.  Duijia,    W.)  Miss.    500; 

gnu's  Ad  in' r,;'}  L>.  Mo:i.  307;  Chare  v.  //hunan,  La/hrop   v.  A/wood,  21   Conn.    117;    ir/Y.-o/t  v. 

8  Wend.  4r,l;  nor'jrfrllrr  v.  Cono  hj,  S  Cow.  GJ;J.  Slilhc'll,  9  Ohio  St.  4GS;  GUbi-rl  v.  Wnnuii,  1  N. 
Sam3  %vb3u  judsmant  is  rea:;h3d. — Dam-  Y.  .T/O. 

ages  may  be  recovered  as  ascertained  l)y  a  judg-         I)riinaje.<t. — And  if  the  discharge  of  such  debt 

ment,  thougli  no  part  of  it  has  been  pai  I.  nor  would  liavc  been  beneficial  to  the  promisee,  the 

any  actual  injury  .'iufTcred:  Carman  v.  N 'h'c,  damages  for  the  breach  of  such  a  con ti'act  would 

9  I'a.  St.  3.;:!;  /'V.-tA  v.  Dana,  10  Mass.  43;  Wibb  include  t!ie  amount  of  the  debt,  witli  interest, 
V.  Pojul,  10  Wend.  42:\;  Oilbcrt  v.  Wlniaa,  I  ali.hoagli  the  promisee  had  not  paid  the  dei)t  or 
N.  Y.  0.10;  Joni-s  V.  Cliihlt,  8  Nev.  121;  In  re  any  [lart  tiiercof:  See  cases  last  cited,  and  Jef- 
Xe'jus,  7  Wend.  400;  Kirk'^ey  v.  Frienl,  43  /ns  v.  ./o/tn-son^  21  N.  J.  L.  7'i;  C/mrchUl  v. 
Ala.  27(i:  Conb'i/  v.  Ilopk'in.'t,  17  Jolms.  113;  'llant,  3  Denio,  321;  Gilbert  v.  Wimin,  \  X.  Y. 
Jarvif  v.  Seniall,  40  Barb.  440.  A  cause  of  aj-  550;  Dtujtnn  v.  GunniiO'i,  9  Pa.  St.  ;>t7;  Xntt 
tion  arose  tlie  monient  judgment  was  entered:  v.  Merr'i/I,  40  Mo.  237;  //«'/  v.  AVwA,  10  Mich. 
Mr/lefhv.  .lA7;//;//r,  57  Cai.  40.  303;  Krlcham  v.  Jnuneei/,  111  Conn.  123;   Mer- 

■WIier3  tli3  coii:Ta:;t  is  more  thaa  for  riun  v.  Pine  City  L.  Co.,  23  .Minn.  311;  Gage 
indemnity  ajaiiist  damagsa,  or  even  lial.il-  v.  Lowl't,  03  III.  G04;  Gonkey  v.  Ilnphin^,  17 
ity  for  damages,  as  wliere  a  party  stipulates,  Jolun.  113.  The  amount  of  the  debt  agrectl  to 
not  only  agaiu.it  tile  ii  d)ility  of  the  obligee,  but  be  paid  is  not  the  measure  of  damages  if  the 
also  to  pay  tlie  d  jbt.  Chun-hili  v.  Una',  3  Deuio,  promisee  is  not  liable  for  the  debt  assnmt;d,  and 
321,  then  actual  damages  are  not  the  gist  of  the  will  neither  be  benelited  by  the  pivment  nor  in- 
action, and  the  value  of  performance  of  t!ie  con-  j  ire  1  i)y  tlie  non-payment  of  it:  //a.'.s"//  v.  Heed, 
ix&G'i  will  constitute  the  measure  of  damages  0  Pai^e,  44J;  Trotter  v.  Uajkes,  12  N,  Y.  7'4. 

404 


Title  XII.] 


INDEMNITY. 


§§  2779,  2780 


Subd.  2,  Agreement  to  save  harmlsss. 
In  other  words,  actual  damages  incurred  arc 
the  gist  of  au  actiDU  ou  an  express  contract  of 
indemiirty  against,  or  to  "  save  liarmless  fi-oin," 
da.in;ig«s;  but  a  t^covery  may  be  had  for  the 
actual  damages  sustaineil  at  a^y  time  before 
the  trial,  anil  the  total  ilaniages  increased 
thereby:  O.-i/ood  v.  O-^jood,  '^d  N.  11.  209?  An- 
thovy  V.  Pi'rcif(d,  8  Ark.  491;  Bcynlon  v. 
Twitty,  53  Ca.  214;  Daij  v.  Slkknen,  14  Allt'ii, 
2o»;  ii'itkerbi/  v,  Mann,  11  Johns.  5iS;  ChUd 
V.  Eiirehu,  Poirdir  Worhs^  44  N.  H.  854.  See 
next  note;  aud  see  WIUaou  v.  McEv'iy,  2.j  Cal. 
109;  an.l  Lott  v.  MitdioU,  32  Id.  2.3. 

Subd.  3.  Costs  of  groundleis  suit. — 
Wlrea  tlie  indemnity  is  general  against  the 
costs  and  expenses  of  a  certain  act,  it  extends 
to  the  costs  of  defending  a  grouuilless  suit  for 
tlie  act,  in  which  the  indenmitied  party  suc- 
ceeded: Trtistfcs  of  Ncic!>ur(jh  v.  Galitian.  4 
Cow.  340;  Ci'iamb^rlaiiiv.  Bcller,  18N.  Y.  115;. 
Chil'On  V.  Doiviifr,  27  Vt.  53G. 

Expenses  v^ithia  scope  of  asreemeat. — 
And  when  the  indemnified  party,  for  the  caase 
indemnified  against,  is  subjected  to  service  or 
trouMe,  or  incurs  any  expense  within  the  scope 
of  the  agreement,  lie  may  recover  damages  for 
the  same:  Xult  v.  Merrill,  40  Me.  237;  Jnrvi.'! 
V.  Scwall,  40  Barb.  449;  French  v.  Parish,  14 
N.  H.  407;  Mott  v.  nklc^,  1  Cow.  513; 
Trustees  vf  Newhtir'jh  v.  Galatian,  4  Cow.  IMO. 
But  see  .Scott  v.  Tijir,  14  Barb.  202;  seel  Suth- 
erhind  on  Damages,  134;  2  Id.  003. 

Lo3S  of  property. — When,  by  breach  of  the 
agreement  to  iudenuiify,  the  p'art}-  indemniiicd 
loses  i>roiierty,  its  value  will  form  a  portion  of 
the  recos'erabic  damages:  Sander,^  y.  J/cimilton, 
21iay\v.  (N.C.)45S;  Acl:''r7iiauv.  /w/;,7,  29Tex. 
291;  Cramp  v.  Pirkliii,  1  Putt.  &  H.  201. 

Counsel  fees. — "  Upon  statutory  bonds  and 
undertakings  to  pay  damages  and  costs,  the  re- 
covery <lepends  mainly  on  the  terms  of  the  un- 
dertaking; but  'damages  and  costs'  include, 
among  oilier  tilings,  the  costs  incident  to  the 
particular  writ,  and  of  the  proceedings  to  pro- 
cure  its  discharge,  and  include  counsel  fees,  ex- 
cept iiithefederaloourts:"  1  Sutherland  on  Dam- 
ages, 141,  with  numerous  citations;  IVill^on  v. 
McEvoii,  2.")  Cal.  170;  Praedrrv.  d'remm,  13  Id. 
5S5.  Not  allowed  in  action  for  infringement  of 
patent:  YV-e-e  v.  JInnlin(jd<n,  23  How.  2.  A 
ehcrifl"  ii  allowed  to  recover  counsel  fees  paid 
for  selling  property  under  an  indemnity  bond: 
Oraiu'j*  V.  Moore,  .'iS  Cal.  437. 

Needless  e:^peiise. — A  man  lias  no  right, 
merely  because  he  has  au  indemnity,  to  defend 
a  hopeless  action,  and  put  the  person  guaran- 
teeing to  useless  expense:  1  Sutherland  on  Dam- 


ages, 13G;  Dnx.iury  v.  Vermont  etc.  Co.,  23 
Vt.  751;  Wynne  v.  Brooke,  5  Kawle,  106; 
Bonny  v.  Seeley,  2  Wend.  431;  N.  Jj'avtn  etc. 
Co-.  V.  Uayden,  117  Mass.  433. 

Subd.  5.  Written  uotise  given  by  sheriff 
to  sureties  on  indemnity  bond  renders  iudg- 
ment  conclusive  against  them:  Code  Civ.  Proc, 
sec.  10.i>5.  Strict  compliance  with  the  terms  of 
this  section  (Code  Civ.  Proc.,  sec.  1055),  is  nec- 
essary in  order  that  tlie  slicriff  may  have  judg-. 
ment  entered  against  such  sureties  upon  tlv'** 
days'  notice,  as  in  this  section  pi-ovided;  ^vn- 
iih  V.  Packard,  28  Cal.  101;  and  see  Mu(U  v. 
Parheco,  21  Id.  4.38. 

Subd.  6.  ilf  the  sberiU  nsglects^.to.  gJ7«; 
written  notice,  as  prescribed  in  Sct-tiba  1055 
of  tlie  Code  of  Civil  Proceciare^'hc  is  left  to  Ida 
action  upon  the  iu'do^niiity  bond:  JJenitis  y. 
Packord,  28  Cal,  102.'  ** 

Want  of  aotiDe-doesnot?.ff3Ctthe  caus9 
of  action;    it  affects  only  the  value  of  the 
judgment  as  evidence.      Thus  where  the  iu- 
deninified  party  has  paid  the  damages  result- 
ing from  a  suit,  wiih  regard  to  which  he  has 
conveyed  no  notice  to  deiend  to  his  indemnitor^' 
and  then  brings  suit  on  the  contract  of  itulfm-/ 
nity,  the  question  of  tlie  liability  of  the  ijidem-! 
nitied   party   to   make  such  payment   is   .slil^, 
open  in   the   latter   suit.     In   the   a,bs!nce   of 
notice,  the  judgment  is  prima  fct^ie  evi  lence. 
only   against    the    indemnitor,   jvjd    he    is  at 
liberty  to  defend  against  the  deniiiiid  on  which 
it  is  founded:  Doii'/iiss  v.  /lowland,  21  Wend. ' 
35;  Aberdeeiiv.  Blackmar,G  HiW,  S-24;  Bridc/e- 
porl  In^.  Co.   V.   Wilson,  34  N.  Y.  275;  Ur-iiqio 
V.  Bragjiotti,  '  Cnsh.  IGG;  Mariab't  v.  CI  ry, 
20  Ark.  251;  CoUimjK-ood  v.   Irwin,  3  Watts, 
300;    Pitkin  v.  Lrarltt,  13  \^t.  S7U;   Tnylor  v. 
Barnes,  09  N.  Y.  4.30. 

Subd.  7.  Agreement  that  judgment 
against  party  indemnified  shall  be  con- 
clusive.—Tiiat  witliout  collusion  such  con- 
tract is  bimling,  see  PaHon  v.  Ciddwnll.  1  DalL 
419;  Thomns  v.  IJublx-Il,  15  N,  Y.  405;  Cham- 
berlain v.  Godfrey,  3G  Yt.  380. 

In  all  covenants  to  indemnify  against  tho 
consequences  of  a  suit,  "the  indemiiitor  is  of 
course  understood  as  saving  the  rigiit  widch 
the  law  gives  in  every  case  where  the  suit  is 
betwten  third  persons,  of  contesting  tlio  pro- 
ceeding on  the  ground  of  collusion  for  tht-  pur- 
pose of  charging  him:"  per  Smitii,  .J.,  in 
Bridiieport  Ins.  Co.  v.  Wibon,  34  N.  Y.  2S1„ 
citing  opinion  of  Co  wen,  J.,  in  Douyltss  v. 
I/oir/and,  24  Wend.  35, 

Surety. — The  sauie  rulea  in  respect  to  no- 
tice which  apply  to  the  indemnitor  are  ap- 
plicable to  his  surety  in  like  cases:  Id. 


2779.  Wh''ii  person  indemnifying  is  a  surety. 

Sec.  2770.  Where  one,  at  the  request  of  another,  eng-ages  to  an.swcr  in 
damages,  whether  liquidated  or  unliquidated,  for  any  violation  of  duty  ou  tho 
part  of  the  latter,  he  is  entitled  to  be  reimbursed  in  the  same  manner  as  a 
surety  for  whatever  he  may  pay. 

"Manifestly  just,  and  arises  from  the  nature  of  the  agreement  an<I^  the  general  rule  govern* 

ing  sucli  contracts:"  Commissioners' note. 

2780.  nail,  what. 

Sec.  2780.     Upon  those  contracts  of  indemnity  which  are  taken  in  legal  pro- 
ceedings as  security  for  the  performance  of  an  obligation  imposed  or  declared 
Civ.  CoDK— 30  4G5 


§§2781-2788  OBLIGATIONS.  [Div.  Ill,  Past  IV, 

by  the  tribunals,  and  known  as  undertakings  or  recognizances,  the  sureties  are 
called  bail, 

"By  the  terms  'undertakings'  or  <recog-  the  Code  of  Civil  Trocedure,  and  bail,  recog- 
nizances,' this  section  means  attachment,  in-  nizance,  peace,  and  other  bonds  of  like  charac- 
ianction,  receiver's,  api)eal,  and  other  similar  ter.  most,  if  not  all,  of  which  are  found  in  the 
boudd,  most  of  which,  if  not  all,  are  found  in  Penal  Code:"  Commissiouers'  note. 

2731.    How  regulated. 

Sec.  2781,  The  obligations  of  bail  are  governed  by  the  statutes  -specially 
upplicable  thereto. 


i  TITLE  XIIL 

GUARANTY. 

Chapter  L     Guaranty  in  General ► . . . .  2787 

II.    Suretyship . . 2831 

CHAPTER  I 

GUARANTY  IN  GENERAL. 

.^Article  I,  Definition  of-  Guaranty « .-, 2787 

II,  Creation  of  Guaranty 2792 

III.  Interpretation  of  Guaranty 2799 

JV.  Liability  of  Gcarantors 2806 

>y.  CoNTiNtJiNQ  Guaranty 2814 

lYL  Exoneration  of  Guarantors^.  .^ ., ».^ 2819 

ARTICLE  I. 

DEFINITION   OF   O0AKANTT. 

12787.    Guaranty,  what. 

Sec.  2787.     A  guaranty  is  a  promise  to  answer  for  the  debt,  default,  or  mis- 

^  carriage  of  another  person. 

Stats.  1850,  266,  sec.  12.  come  a  surety.     The  intention  was,  by  such 
Says  Parsons,  Parsons  on  Cont.,  vol.  2,  p.  3:  statutes,  to  remove  her  disabilities  for  her  in- 
"Origiually  the  words  'warranty'and  'guaranty'  terest,  and  not  to  enable  her  to  contract  oner- 
were  the  same;  the  letter  'g'of  the  Norman  ous  obligations    fron\   which   she   derived   no 
'French  bt-ing  convertible  with  the  '  w  '  of  the  benefit." 

■  German  and  English,  as  in  the  names  William  Infants  may  ratify  such  a  contract  in  the 
'  or  Guillaume.     They  are  now  sometimes  used  usual  way:  Owen  v.  Lomj,  112  Mass.  403;  Hin- 

indiscriminately;   but  in  general,  warranty  is  ely  v.   Marqaritz,   3   Pa.    St.   42S;    Fetrow  v. 

applied  to  a  contract  as  to  the  title,  quality,  or  Wiseman,  40  Ind.  LiS. 

'  quantity  of  a  thing  sold,  and  guaranty  is  held  Railroad  company. — Where,  under  the  laws 

to  be  a  contract  by  which  one  person  is  bound  of  Iowa,  a  railroad  company  iiad  power  to  is- 

to  another  for  the  due  fulfillment  of  a  promise  sue  its  own  bonds  to  pay  for  the  construction 

or  entragemeut  of  a  third  party:"   See  Brown  of  its  road,  it  was  held  it  might  guarantee  the 

■  on  the  Statute  of  Frauds,  sec.  155.  bonds  of  cities  and  counties  which  had  been 

"Who   may   make  a  guaranty. — Married  lawfully  issued,  and  were  the  means  of  accom- 

wom£n. — Upon  the  authority  of  Alhol  Machine,  plishiug  the  same  eud:  R'tilroad  Oo.  v.  /{award, 

-  Co.  V.  Fuller,  107  Mass.  437;  West  v.  Laraway,  7  Wall.  392;  and  see  Arnot  v.  Erie  R.  R.  Co., 

28  Mich.   464;  DeVries  v.   Conklin,  22  Mich.  5  Hun,  608.     A  railroad  corporation  or  manu- 

255,  Mr.   Brandt,   Suretyship  ami   Guaranty,  facturing  company,    in  Massachusetts,  cannot 

sec.  4,  says:    "In  many  states,  by  statute,  a  give  a  guaranty  of  payment  of  expenses  of  a 

married  woman  may  hold,  manage,  and  con-  proposed  musical  festival:  Davis  v.  Old  Colony 

tract  with  reference  to  her  separate  property  R.  Co.,  131  Mass.  256.     In  general,  such  con- 

the  same  as  if  she  was  unmarried.     She  can-  tracts  are  ultra  vires:  See  Jones  on  Railroad 

-  not,  however,  by  virtue  of  such  a  statute,  be-  Securities,  sees.  350-356. 

2788.    Knowledge  of  principal  not  necessarrj  to  creation  of  guaranty. 

Sec,  2788.     A  person  may  become  guarantor  even  -without  the  knowledge  or 
consent  of  the  principal. 

466 


Title  XIII,  Ciiap.  I.] 


GUARANTY  IX  GENEP.AL. 


§§  2702-2794 


ARTICLE  II. 


CREATION    OF    GUARANTY. 


SISQ.    Nrcessihj  of  a  consideration. 

Sec.  2792.  "Where  a  guaranty  is  entered  into  at  the  same  time  with  the  origi- 
nal obligation,  or  with  the  acceptance  of  the  latter  by  the  guai'antee,  and  forms 
•with  that  obligation  a  j^art  of  the  consideration  to  him,  no  other  considera- iou 
need  exist.  In  all  other  cases  there  must  be  a  consideration  distinct  from  that 
of  the  original  obligation. 


Consideration  of  guaranty:  "See  MalJorii 
V.  (Jiih'/i,  12  N.  Y.  41'2.  The  person  to  wlioin 
a  guaranty  is  made  is  here  called  the  guarantee. 
Tins  ii  llio  proper  legal  meaning  of  the  word: 
S'.'0  l>ouv.  Uict.,  also  Webster  and  Woi-eester, 
altliougli  it  is  often  used  in  another  sense: " 
Commissioners'  note. 

Examples  of  guaranty  entered  into  at  the 
same  time  with  the  principal  obli^^ation,  being 
8U|  ported  by  the  consideration  of  tlic  latter, 
sec  Jones  v.  Fosi,  6  Cal.  102;  llazdtine  v.  Larco, 

7  Id   3i>. 

The  consideration  need  not  pass  directly  from 
the  party  receiving  the  guaranty  to  the  ])arty 
givi:  g  iL:  2  Parsons  on  Contracts,  7;  Birl:/ord 
V.  GiOlis,  8  Cash.  15G;  Leonard  v.  Vredenburi/k, 

8  Johns.  'IV;  Morly  v.  Dootldy,  3  Ling.  IK); 
Wt.ls  \.  Mnnn,  45  N.  Y.  327;  Colijin  v.  Hen- 
ley. (J  Leigh,  85. 

IJevj-  and  distinct  consideration. — If, 
r.f tcr  the  original  consideration  has  moved  be- 


An  agreement  on  the  part  of  the  creditor  to 
extend  the  time  of  payment  of  the  principaTs 
obiigatioii  for  a  d'iliiiite  period  is  a  suui'.tieiit 
consideration,  the  delay  u.iually  operat..jg  both 
as  a  beaolit  to  the  [)rincipal  and  a  detri.nent  to 
the  creditor:  Fuller  v.  ScoU,  8  Kan.  25;  Un- 
dencood  v.  I/oxsack,  ;'.8  111.  208;  Fullkim  v. 
]Vithers,  8  Dana,  93;  Hw/e  v.  Wilrox,  G  Conn. 
81 ;  or  lor  a  reasonable  time:  Lon^dde  v.  Broicn, 
4  Wasli.  14S.  And  even  an  agreement  for  mcie 
general  indulgence,  combined  with  actual  f.ir- 
bearance  fur  a  reasonable  time,  is  suliieient: 
Thomas  v.  Croft,  44  Am.  Doc.  279;  Etiliri  v. 
l'aiid''r/y,i,  4  Johns.  2.'?7;  Uuwlett  v.  Ewbn.ik, 
1  lia.sh,  477.  Withdrawal  of  a  suit  is  snlH- 
cient:  Wora'sier  Savings  Bank  v.  J  Jill,  113 
Mass.  25. 

Agrcemfitf,  necessary.  —  Mere  forbearfincf, 
without  any  agreement,  and  with  the  riglit  of 
the  creditor  to  proceed  wit!>  suit  at  any  mo- 
ment, and  at  pleasure,  is  not  suiheient.    Thero 


twctn  tiie  creditor  and  principal,  tiie  surety  or  must  be  a  promise  for  a  promise:  Shupe  v.  d'al- 

guarantor  .signs  upon  a  new  consideration,  mov-  braitli,  ?>'2  Pa.   St.    10;    IValker  v.   Hhernvui,  II 

ing  f.om  tlie  creditor  to  the  principal,  this  is  j\Iet.    170;    Meairvey   v.    Suinley,  8    Cusli.    85; 

suliieient:  Guy  v.  3Inll,  43  Ga.  252.  Breed  v.  Hdlhoune,  7  Conn.  523. 
Forbearance  a  sulQcient  consideration. 


2703.    Gaarnnty  to  he  in  luriting,  etc. 

Sec.  2793.     Except  as  prescribed  by 
writing,  and  signed  by  the  guarantor; 
sideration. 

Consideration  of  guaranty. — "A  familiar 
provision  of  our  statutes  nuuie  every  special 
pron;ise  to  answer  for  tlie  debt,  defaidt,  or 
iniscariiago  of  anotlier  person  void,  unless 
'some  note  or  memorandum  thereof  expressing 
the  consideration  be  in  writing,'  etc.:  Stats. 
1850,  p.  2oG.  The  commissioners  have  inserted 
in  the  text  an  express  provision  that  tlie  v.Tit- 
ing  need  not  express  a  consideration,  because 
by  the  section  immediately  prcceling  an  actual 
consider;!  tion  is  necessary  to  support  a  guaranty 
ill  some  cases,  while  in  others  none  is  required. 
It  has  be :n  held  hy  the  court  of  appeals  of 
New  Yorlc  that  a  contract  rtquircd  by  the 
Btatute  ot  frauds  to  be  in  writing  cannot  be 
partly  hi  wr'iting  and  partly  oral;  thus,  where 
a  writing  relating  to  a  contract  for  the  sale  of 


the  next  ssctlon,  a  guaranty  musu  be  in 
but  the  writing  need  not  express  a  con- 


land  fixen  the  price,  but  refers  to  '  terms  as 
specified,'  which  are  not  stated  in  writing,  t!ie 
memorandum  is  iusuliicieut,  and  cannot  bo 
made  good  by  oral  eviilence  of  the  time  agreed 
upon  for  payment:  Wriijiit  v.  WeeLt,  25  N.  Y. 
153.  If,  tlierefore,  the  section  in  text  should 
simply  omit  the  former  provision  of  the  statute 
requii'iug  the  consideration  to  be  stated,  ib 
might  be  exjiosed  to  the  constructicm  that  in 
all  those  ca-jcs  in  which  the  consideration  is 
made  by  the  previous  section  essential  to  tho 
contract,  it  must  be  stated  in  reducing  the 
contract  to  writing.  In  England  the  statute 
(19  &  20  Vict.,  c.  97,  sec.  3)  enables  a  party 
to  prove  the  consideration  of  a  guaranty  by 
parol.  ^-0  in  Maine:  R.  S.  G31.  See  note  to 
sec.  1739:"  Commissioners' note. 


2794.    Engagement  to  answer  for  obligation  of  another,  when  deemed  original. 

Sec.  2794.  A  promise  to  answer  for  the  obligation  of  another,  in  any  of  the 
following  cases,  is  deemed  an  original  obligation  of  the  promisor,  and  need  not 
be  in  writing: 

1.  "Where  the  promise  is  made  by  one  who  has  received  property  of  another 
upon  an  undertaking  to  apply  it  pursuant  to  such  promise;  or  by  one  who  hag 
received  a  discharge  from  an  obligation  in  whole  or  in  part,  iu  consideration  of 
such  promise; 

467 


§2704 


o:dliGxVTIoxs. 


[Drv.  Ill,  Takt  IV, 


2.  "WTierc  the  creditor  parts  ^vith  Vcalue,  or  enters  into  an  obligation,  in  con- 
eideratiou  of  the  obligation  in  respect  to  wliicli  tlio  promiHe  is  made,  in  tonus 
or  under  circumstances  sucli  as  to  render  the  party  making  the  promise  the 
principal  debtor,  and  the  person  in  whose  behalf  ib  is  made,  his  surety; 

3.  AVhere  the  promise,  being  for  an  antecedent  obligation  of  another,  is  made 
UT)on  the  consideration  tliat  the  party  receiving  it  cancels  the  antecedent  obli- 
gation, accepting  the  new  proniise  as  a  substitute  therefor;  or  upon  the  consid- 
eration that  the  party  receiving  it  releases  the  property  of  another  from  a  levy, 
or  his  person  from  impi-isonment  under  an  execution  on  a  judgment  obtained 
tapon  the  antecedent  obligation;  or  upon  a  consideration  beneficial  to  the  prom- 
isor, whether  moving  from  either  party  to  the  antecedent  obligation,  or  from 
another  person; 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell  merchandise  and 
guarantee  the  sale; 

5.  Where  the  holder  of  an  instrument  for  the  payment  of  money,  upon  which 
a  third  person  is  or  may  become  liable  to  him,  transfers  it  in  payment  of  a  prece- 
dent debt  of  bis  own,  or  for  a  new  consideration,  and  in  connection  with  such 
transfer  enters  into  a  promise  respecting  such  instrument. 

Promise  to  debtor  himself  to  pay  or  to  the  promise  is  not  within  the  statute.  As 
funiisli  him  the  means  of  paying  his  own  debt 
is,  of  course,  nut  within  the  statute:  Ifuboti  v. 
I'ark,  IIG  Mass.  5U;  Coetz  v.  Toos,  14  Mian. 
235;  Whi'rscll  v.  ll.iwy,  58  Inl.  lOS;  C:>m- 
stock  V.  Morton,  3G  Midi.  277;  JlumlaU  v.  h'fl- 
ney,  48  Vt.  157;  Pratt  v.  Bate^,  40  Mich.  37; 
O.lphaid  V.  Patlfr.son,  50  Pa.  St.  368;  and  see 
aradwM  V.  //arris,  29  Cal.  150. 

But  that  th.'i  one  ia  -wiiose  favor  tha 
promise  is  made  (i.  e.,  the  creditor)  may  sus- 
tain an  action  against  tlie  promisor  even  u^jon  a 
parol  contract,  and  altliough  he  is  a  straii  jor  to 
t!ie  consi'leration,  is  the  geno .ally  accepted 
Anieiican  doctrine:  See  note  to  Barkery.  Buck- 
I'll),  43  Am.  Dec.  730.  Tliis  question  is  of  coarse 
settled  in  this  state  by  scciion  1550,  ante,  and 
by  section  3'J7,  Code  of  Civil  Procedure,  wliicli 


when  a  debtor  gave  to  his  creditor  the  note  of 
a  third  i>erson  for  the  same  amount  as  the  debt, 
and  guaranteed  the  payment  of  tlie  note:  SuIkI. 
5,  po^l;  Dyer  v.  O.hxon,  IG  Wis.  SOS;  soo 
Browne  Stat.  Frauds,  sec.  IG").  To  tiie 
same  effect,  s;;e  B  irker  v.  Scudder,  53  Mo. 
272;  /lall  v.  Bod'jem,  7  Humph.  53G;  Fowler 
Cleanoatcr,  35  Barb.  143;  Durham  v.  Maiirow, 
2  N.  Y.  5;;3;  Adcock  v.  I'^leminrj,  2  Dov.  &  P.. 
L.  225;  Birker  v.  Scud  Icr,  5G  j\Io.  272;  .1/  bUe 
<L-  (i.  R.  Co.  V.  Jones,  57  Ga.  193;  Bruce  v.  Burr, 
07  N.  Y.  237.  Or  where  ono  partner  a'^rccrj  to 
pay  a  firm  debt:  Ft'es  v.  McLeod,  14  Ala.  Oi  ' ; 
Durham  v.  Manrow,  2  N.  Y.  541,  per  Stroa^-, 
J.;  like  V.  Barry,  2  Cranch  C.  C.  447;  / /op- 
kins  V.  Carr,  31  Inrl.  230.  Or  where  one  of 
several   part  owners   of  a   ship  agrees  to  pay 

provides  that  every  action  shall  be  prosecuted     material-men:    Fkh   v.    Thoma<,    5   Gray,    45; 

by  the  real  party  in  interest.  1/eadrkk   v.   WUeheart,    57    Ind.   120.     Or   to 

Subd.  1.   Ou3  v7ho  has  received  property 


of  another:  lAican  v.  Fin/ne,  7  Cal.  92;  Mr 
LrircH  v.  //lUchinsoii,  22  Id.  187;  Brandt  Guar. 
&  Sur.,  sec.  40;  Browne  Stat.  Frauds,  sec.  187. 
I^romhe  conditional  where  promisor  engages 
to  pay  the  debt  if  he  receives  funds  of  the 
debtor  to  a  sufficient  amount;  still  the  statute 
docs  r5otap;)ly,  for  the  debtor's  own  propc-rty 
is  relied  on  for  payment:  Mdveenan  v.  Tuissi'l, 
33  Me.  333;  Si' we  I  v.  Otis,  2  Hilt.  1  IS;  Calkins 
v.  Ch'iiidb^r,  35  Mijh.  320.  But  it  is  otherwise 
it"  the  promisor  has  no  authority  to  dispose  of     horses,  the  p^-icc  of  which  the  defendant  agreed 


subserve  some  interest  of  the  promisor's:  Wor- 
month.  V.  Hatch,  33  Cal.  121;  but  see  Clay  v. 
Walton,  9  Id.  323. 

See,  in  general,  the  fjllowing  cases,  where  the 
rule  stated  in  tlie  secou  I  clause  of  the  above 
sublivision  is  fodowed.  The  case  of  Barker  v. 
Bicklin,  2  Denio,  01;  S.  C,  43  Am.  Dee.  720, 
wioh  note,  is  very  often  cited.  There  the  facts 
were:  the  defcadant's  brother  owed  the  plaint- 
iff a  sum  of  money,  and  bjing  pressed  for  pay- 
ment, delivered    t;)   the   defendant  a   pair   of 


the  deljtor's  i)roperty  in  iiis  possession:  Dlits  v 
J',(rk",  4  N.  J.  L.  210;  Simpson  v.  Nance,  1 
Sj-ieara  L.  4;  Sta'e  B mk  etc.  v.  pettier,  2  Bosw. 
31i2;    Weyrr  v.  Bearli,  14  Hun,  231. 

Ono  v7ho  has  rsceived  a  discharse  from 
an  oblljatiou:  /'lirley  v.  C'eveland,  1 5  A:a. 
Dec.  387,  and  note  303;  /jcoiard  v.  Vreden- 
herijh,  5  Id.  321,  and  note;  Brandt  Guar.  & 
Sur.,  sec.  52;  Browne  Stat.  Frauds,  sec.  103  a- 
172. 

Xovation  is  not  within  the  statute  of  frauds: 
Welch  v.  Kenny,  40  Cal.  49;  and  see  sec.  1530, 
ante,  and  note;  Barr'ni'ier  v .  Warden,  12  Id.  311. 

^Vhcnever  tlie  promise  is  in  effect  to  pay  the 
debt  of  the  promisor,  even  though  its  pcrl'orm- 
aace  may  extinguish  the  debt  of  a  third  person, 


to  pay  to  plaintiff  oa  account  of  his  dj  iiaud 
a";aimt  defendant's  brother:  See  also  7':_y'orv. 
Preston,  79  Pa.  St.  430;  Williams  v.  L'Jll;  35 
Me.  32.!;  lles^heas  v.  l2owe,  46  Mo.  501;  Sea- 
man v.  /fasbronck,  33  Barb.  151;  Maxiuell  v. 
/la'/nes,  41  ile.  530;  /lab'iermann  v.  Wiskamp, 
51  ill.  170;  Berry  v.  Doremas,  30  N.  J.  L.  390; 
Ji>u>ison  V.  Knapr),  33  Iowa,  010;  J/n  on  v. 
/lall,  39  Ala.  509;  MUch-ll  v.  Griffin,  '^S  Ind. 
550;  sec,  as  bearing  on  this  subject,  Swalman 
V.  /\irk-r.  40  Miss.  10;  //arris  v.  Yonnn,  40 
Ga.  03;  Meyi'r  v.  //.trlniai,  11  111.  442;  Ba- 
chan  in  v.  i^adclford,  4.)  Vt.  04;  Baliiet  v.  Scott, 
32  \Vi3.  171. 

Gab  J.  2.     ProTTi'iort'aopriaorDaldobior. 
Tiaij  clause  embraces  the  comuioa  case  of  goods 


403 


Title  XIII,  Chap.  I.] 


GUARANTY  IN  GSNERAL. 


§2794 


sold  ami  delivered,  or  services  rendered,  for  the 
benefit  of  one  at  tiie  request,  prouiisu,  and  upon 
the  credit  of  anotlicr.  And  t!io  books  and  e:iscs 
ad  concur  in  stating  tlic  rule  that  tiio  credit  of 
tlie  tia;isaction  must  be  given  wholly  (.0  the 
promisor,  anil  if  any  cradit  at  all  l)e  given  to 
the  ih  V  [  I'arty,  Vac  defendant's  promise  is  re- 
quired to  be  in  wri^iii^;  as  collaccral:  Btoune 
Stat.  Frauds,  aec.    \'J~ ;  Brandt  Guar.  &    Sar., 


Prtrhe.r  v.  Tleaton,  55  Ind.  1:  Hedjcn  v.  S/ronrj, 
3  Or.  18;  lioolh  v.  Eir/hmic,  60  N.  Y.  -zSi; 
Quintard  v.  De  Wolf,  :ii  B  irb.  07;  Wat.^on  v. 
Jarnbi,  -23  Vt.  1(19;  White  v.  Solomon.-^ky,  30 
Md.  oSa;  Lord  v.  DavUon,  3  Allen,  131; 
Click  V.  McAfee,  7  Port.  GJ;  AlUhou^f.  v.  Uam- 
s  n/,  G  Whart.  331;  Dr<iHikaii  v.  Uuutupj,  9 
Ireil.  10;  see  Browne  Stat,  i'rauds,  see.  103; 
Brandt  Guar.  &  Sur.,  see.  48.     So  if  t!ie  estate 


sec.  02;  Cahillv.  Bijfloii',  ISPick.  3G9;  Larsoti  be  discharged  the  executor's  ])romide  to  piy 

V.    Wu'mnn,  14  Wend.  2t();  JJuxhea  x.  All^n,  31  the  debt  is  bindiag  without  writing:  llarrin<j- 

Vt.  G13;  Dixon  v.  Frazfc,  I  E.  D.  Smith,  32.  ton   v.   Rc/i,  6  Vt.  GGO;  Mosdey  v.    Taylor,  4 

To  ivhoiii  is  the  credit,  (jivrii  f  is  always  t'ne  Dana,  542;  Rohiiison  v.  Lane,  14  Smed.  &  M. 

qut.stion   in  these  cases.     Tiie    fact   tliat    the  161. 

plaintiif  debited  the  goods  to  tlie  deiendaut  and  A  question  to  be  determined,  of  course,  is 

b.uit  liini  the  bill  is  not  necessarily  evidence  for  whetiierthe  debtor  has  been  in  fact  discluirgcd. 

the  plaintiff,  as  this  would  enable  Iilm  to  man-  The  entry  of  such  disch:irge  upon  the  bo  iks  of 

rfaCLU  ecvidcnce  for  iunisclf :  Poidtiiey  v.  ii'o.ss,  the  I'laintilf,  and  las  del)iting  the  new  promisor 


1  Dall.  23S;  Cutler  v.  Jllntm,  G  Hand.  509; 
Kiidoch  V.  Brown,  1  Bicli.  L.  223;  Noyes  v. 
Jiitmjihreyx,  11  Gratt.  63G;  Walker  v.  UlchivdA, 
41  N.  II.  338;  see  EMemnn  v.  llarnUh,  76  Pa. 
►St.  97;  llardmany.  Bradley,  So  111.  1G2;  Swij't 
V.  Pierce,  13  Allen,  136. 

The  qae.dion  of  credit  is  always  for  the  jury 
to  determine  froai  all  the  circamstances  of  the 
case:  Dean  v.  Tallmaii,  105  Mass.  413;  Glenn 
V.  Lehiien,  54  Mo.  45;  Cowdin  v.  (i'oft;/rtreu,  55 
K.  Y.  GJO;  Bloom  v.  McGrath,  53  Miss.  2i9; 
Eahleniad  v.  JJarni.-h,  76  Pa.  St.  97;  Moxhier  v. 
Ke.tchell,  S7  III.  18;  Pettit  v,  Braden,  5o  Ind. 
201. 

Both  jointly  bound. — If,  however,  the  credit 
is  gi\en  to  both  jointly,  as  ueicher  can  be  said 
to  be  surety  for  the  other  to  tlie  credito:',  their 
eugagemcut  need  not  be  in  writing:  Eddy  v. 
J)avidso.i,  42Vt.  56;  Williams, Ex ptrte, iYcry. 
579;  ilelfeld  v.  Doe,  27  N.  J.  L.  440;  Gibh.i  v. 
Blanchard,  15  Midi.  292;  Swift,  v.  Pierce,  13 
Allen,  120;  and  see  Otis  v.  UaseAline,  27  Cal. 
80. 

Ca-<e>i  holdiny  the  promise  orijltial,  the  credit 
having  been  given  solely  to  the  promisor: 
Skinner  v.  Gonad,  2  Vt.  453;  Tfiwrits  v.  Curl, 
G  B.  Mm.  472;  Brij(jsv.  Evana,  1  E.  D.  Smith, 
192;  Jones  v.  (Joo;>er,  1  Cowj).  227;  Bate-t  v. 
St  rr,  G  Ala.  G07;  Chase  v.  Day,  17  Jolius.  114; 
Is'eberrot.i  v.  Bieycl,  71  Pa.  St.  2S0;  UlcCafflllv. 
Eaddiff,  3  Ilobt.  415;  Jejj'erson  County  v.  St-ujee, 
Go  Pa.  St.  202;  /Jiltz  v.  Scully,  1  Cm.  Sapor. 
Ct.  o'k};  Pnjne  v.  B  ildwin,  14  Ba:b.  570; 
Smi'h  V.  f/i/de,  19  Vt.  54;  Sinclair  v.  I'lchard- 
eon,    12  Id."  33;    Turton  v.  Burke,  4  WU    119; 


wi:;h  tlie  amount,  will  be  sufficient:  Cirbett  v. 
Cochran,  3  iliU  (S.  C. ),  41;  Lanr/ilon  v.  Hmjhes, 
107  M;;ss.  272;  see  ll.irri.i  v.'  Yomij,  40'  Ga. 
C3.  An  agreement  to  submit  a  ilj.uand  to 
arbitrntion  is  not  a  sufficient  canceling  of  tha 
debt:   JIarriiiij'on  v.  Ulh,  0  Vt.  Gjj. 

R3le3S3  from  l3vy  or  impriaonment. — 
This  clause  is  additional  to  tlie  usual  excep- 
tions. The  rule  in  regard  to  tlie  relinquioa- 
meuts  of  liens  has  been  stated  thus:  "  W'ocro 
the  plaiatiff,  in  consideration  of  t!ie  promise, 
has  rclintpiished  some  lien,  benefit,  or  advan- 
tage for  securing  or  recovering  his  debt,  rmd 
where  by  means  of  such  relinquisiiinont  t  10 
sa.ne  interest  or  advantaga  has  inured  t;>  the 
bcueflt  of  the  defendant,"  there  his  oromise  ij 
binding  witliout  writing.  "Tiie  substance  of 
the  contract  13  tlu  piircoase,  by  th<!  dei'en  laufc 
of  the  pl.dntifT,  of  the  lien,  right,  or  benefit 
in  (question:"  Per  Shaw,  C.  J.,  in  ('urti-i  v. 
Brown,  5  Cus'.i.  491.  It  would  seem,  tiicrcfore, 
thai  this  second  clause  of  the  above  su'odivision 
contains  an  extension  of  this  rule;  for  t'le  mora 
release  of  the  debtoi^'s  property  from  a  levy  or 
his  jierson  from  imprisonment  cannot  inure  to 
the  bonelit  of  tlie  promisor,  in  the  sense  tliat 
he  might  thereby  be  indemni.ied  iu  respect  to 
a;iy  expenditure  maile  in  payment  of  the  thir>l 
person's  obligation.  If  tlie^e  0XL;cptio:is  v/iiich 
are  specially  inoiitioncd  by  this  clause  of  tlio 
code  can  be  eml)odied  under  any  general  riilo 
of  law,  they  must  fall  un  ler  tliat  ineutione  1  in 
tlie  last  clause  of  this  subilivisioa;  tlu^y  must 
be  considered  as  s])eeial  considerations  sulli- 
ciently  beneficial  to  the  promisor  to  remove  a 


Hazen  V.  Bmrden,  4  Sueed,  48;  lletjield  v.  Dow,     promise  founded  upon  them  from  the  action  of 


27  N.J.  L.  410. 

Ca'<es  holdiny  the  promise  collateral:  See  cita- 
tions under  first  note  in  this  subdivision; 
Keale  v.  T-'mp'e,  1  Bos.  &  Pal.  153,  wliere  the 
largeness  of  amount  in  controversy  was  made 
use  of  tosliowthat  the  plaiutilT  could  not  have 
trusted  to  the  defendant  alone,  a  lientenant  in 
the  navy,  lor  his  pay:  Tileston  v.  Ne.ttle'o.i,  6 
Pick.  509;  Pennel  v.  Pentz,  4  E.  D.  Smith, 
C3J. 

Sabd.  3.  A'.i!;33Gd3nt  oblisitiDi  can- 
CGl3d. — This  suiHlivision,  tlie  co  n  nissioners 
s  ly,  '•chiefly  rests  upon  the  views  exp-^ssel 
iii  the  prevailing  oninio  1  in  Mallory  v.  Gi'lett, 
21  N.  Y.  412,  where  nu.nerouj  casos  upon  the 
distinction  between  original  and  codat  a-al 
undertakings  are  reviewed."  This  rale  is  now 
v/ell  settle  t  in  tliis  cou  itry.  Toe  original  d  ;bt 
being  dischargel,  the  defend  mt's  prvimlie  cm- 
uot  be  cpl.ateral  or  contingent  to  io,  a  1 1  tli  ero- 
luru  raises  au  original  and  abs^late  liability: 


tha  statute  of  frauds.  But  under  the  rules 
presently  to  be  stated,  it  is  conceived  tli.it  they 
would  not  be  considered  sufQeicnt  considera- 
tions. Cases  illustrating  this  clause  are  rare, 
but  an  En^'lish  court  has  held  that  the  rel  n- 
f|uishme;itof  a  ca.  sa.  is  not  a  snllicicnt  transfer 
of  vain  J  to  creat3  an  ori','inal  obligation  on  t!ie 
part  of  the  promisor:  Chatcr  v,  Beckett,  7  T.  U. 
201;  but  see  Goodman  v.  Chase,  1  Barn.  &  Aid. 
297. 

'J'ho  exception,  making  the  release  of  the 
dsbtor  f ro  n  imprisonment  a  consideration  of 
sulli-iijnt  importance  to  render  the  p;-omiso 
foun  b  I  tliereon  original,  may  I>e  viewed  in  a 
di.Terent  liglit.  The  rele ise  of  the  djfendant 
by  the  actor  with  the  coasent  of  th's  [diintifF 
is  an  absdato  and  irre.-oeablo  satisfaction  of 
the  j  1  Ig  neat.,  irres^jective  of  any  un  lerstaud- 
i  1,'  or  agreement  tj  the  c  mtrary:  Freeman  on 
E:eeuti)n?,  see.  4j4.  Tnjref,)r3,  the  antece- 
dent obligaiiou  baiug  caucebd,  audthe  defend- 


4G9 


§2794 


OBLIGATIONS. 


[Dxv.  Ill,  Part  IV, 


ant's  promise  being  Jicccpted  in  lieu  tliereof, 
this  c:ise  will  form  an  iiisbance  undoi'  tiie  first 
clansu  of  tills  subilivisiou. 

Consideration  banefloial  to  the  prom- 
isor.— Tills  clause,  the  coiio  oomiuisionors  say, 
enibfaces  not  only  the  cases  wliere  an  abso- 
lutely new  consideration  moves  to  the  prom- 
isor, l)ut  also  those  in  which  property  of  the 
principal  debtor,  held  by  tlie  creilitor  by  virtue 
of  a  lion,  or  under  le^^al  process,  or  otherwise 
for  his  demand,  is  surrendered  to  the  prom- 
isor; and  see  further,  infra. 

Surrender  of  lien.  —  Mr.  Browne  (Stat, 
Frauds,  sec.  214  e)  says:  "  Those  cases  in  which 
the  giving  u[)  of  such  lien,  or  security,  or  ad- 
vantage, by  the  plaintiff,  though  not  to  the  de- 
fendant tlirectly  or  indirectly,  has  been  held 
sufficient  to  take  the  defendant's  promise  out 
of  the  statute,  are  oj)[)Osed  to  the  clear  current 
of  the  later  and  better-considered  cases,  and 
must  be  rejected  as  not  law."  Tliis  rule  now 
obtains  generally  in  the  United  States,  the  only 
notaiile  exception  being  Soutli  Carolina:  Browne 
Sbat.  Frauds,  sec.  20o.  The  leading  case  in 
New  York  upon  this  point  is  Malloni  v.  Gillf/t, 
2.3  Barb.  610;  S.  C,  21  N.  Y.  412.  In  the 
affirming  opinion  in  the  court  of  appeals.  Corn- 
stock,  C.  J.,  reviews  at  length  numerous  En- 
glish and  American  cases,  overrules  t'.ie  one 
New  York  case  to  the  contrary,  and  decides 
that  such  surrender  must  be  to  the  defendant, 
ami  inure  to  his  benetit.  The  following  cases 
sustain  this  doctrine:  Richardson  y.  Robins,  124 
Mass.  105;  Smith  v.  Sai/ward,  5  Greenl.  504; 
Ifi'rntt  V.  White,  71  III.  237;  Knitz  v.  Stewart,  54 
lud.  178;  Cross  v.  Richnrdson,  33  Vt.  Gil;  see 
Stewart  V.  Campbell,  58  Me.  439;  //odgins  v. 
Hianey,  15  Minn.  IS.");  Younj  v.  French,  35 
Wis.  Ill;  Corkins  v.  Collins,  IG  Mich.  478; 
Arnold  V.  Stedman,  45  Pa.  St.  186;  Teajue  v. 
Fowler,  5G  Ind.  5G0. 

Purchase  of  debt— Where  the  transaction 
amounts  to  a  purchase  of  the  debt  or  lien  by  the 
promisor,  the  promise  is  not  within  tiie  statute: 
Allen  V.  Thompson,  10  N.  H.  32;  Doolittle  v. 
Nay  lor,  2  Bosw.  203;  Fren'-h  v.  Thompson,  6 
Vt.  54;  Thcrasson  v.  McSpedon,  2  Hilt.  1; 
Hindmayi  v.  Lanrjford,  3  Strobli.  207;  Oardiner 
V.  Hopkins,  5  Wend.  23;  Olmstead  v.  Greenly, 
18  Johns.  12;  Mersereau,  v.  Lewis,  25  Wend. 
242. 

Now  and  beneficial  consideration  from 
promisee  to  promisor:  See  also  supra.  It 
is  not  true,  as  a  general  rule,  that  a  promise  to 
pay  the  debt  of  another  is  not  within  the  stxt- 
nte,  if  it  rests  upon  anew cousileration  passing 
from  the  promisee  to  the  promisor.  A  new  con- 
sideration for  a  new  promise  is  necessary  with- 
out the  statute,  and  if  a  new  consiileration  is 
all  that  is  needed  to  give  validity  to  a  promise 
to  pay  the  <lebt  of  another,  the  statute  is  utterly 
nugatory:  Fallamv.  Adams,  37  Vt.  391;  Maide 
v.  Buchnell,  50  Pa.  St.  3 J;  Kelsnj  v.  Hibbs,  13 
Ohio  St.  3 to.  Tne  true  rule  his  been  stated 
thus:  "  Whenever  the  main  purpose  and  object 
of  the  promisor  is  not  to  answer  for  another, 
but  to  subserve  some  pecuniary  or  business 
purpose  of  his  own,  involving  either  a  benelit 
to  himself  or  damage  to  the  other  contracting 
party,  his  promise  is  not  within  the  statute:" 
Emerson  v.  Slater,  22  How.  23.  To  which  state- 
ment of  the  rule  Mr.  Browne  (Stat.  Frauds, 
sec.  214  e)  objects  on  account  of  its  generality, 
and  suggests  this  a^  a  subsfcituta:  •'  Tiie  distinc- 
,tioa  is  bdtwaea  a  merely  valid  cansidoration  for 


the  defendant's  promise  of  guaranty  and  that 
transfer  of  value  which  creates  an  original  ol)li- 
gation  on  the  part  of  the  defendant,  tlio  measure 
of  which  is,  by  the  agreement  (jf  the  parties, 
the  defendant's  payment  of  the  t'ii:<l  party's 
debt."  Tiio  essential  generality  of  all  rules  in 
this  connection  is  evident  when  the  diversity  of 
the  decisions  is  considered.  The  rule  as  al)ovo 
stated  will  be  foun  1  supported  in  Ckuf  v.  Wal- 
ton, 9  Cal.  328;  Lemmo.i  v.  Box,  20  Tex.  329; 
Brown  v.  Barncfi,  (i  Ala.  G91;  L  tmpnon  v.  Ho- 
hart,  23  Vt.  G97;  Cross  v.  Richardson,  30  Id. 
641;  Nelson  v.  Boynton,  3  M(;t.  39J;  Price  v. 
TriLsdeU,  23  N.  J.  Eq.  290,  and  cases  cited  above. 

Forbearance  by  creditor  is  not  enough  to 
take  the  defendant's  promise  out  of  tiu;  statute: 
Hilton  V.  Diiismore,  21  Me.  410;  Harri.f/ton 
V.  inch,  6  Vt.  GG6;  Caston  v.  Moss,  1  Bailey 
L.  14;  Mnsvk  v.  Mnsick,  7  Mo.  405;  Thomas 
V.  Delphy,  33  Md.  373;  Lamj  v.  Henry,  51  N. 
H.  57.  But  forbearance  in  considera'.ion  of  the 
assumption  by  the  debtor  of  the  o'oligation  of 
another  is  sulticient,  and  the  promises  are 
mutually  binding:  Leskie  v.  Conway,  59  Cal. 
442. 

Where  the  consideration  moves  from 
the  debtor,  the  case  nuieh  rescmijlcs  those 
cases  wliich  fall  under  the  first  clause  of  sulidi- 
vision  1  above:  Farley  v.  Cleveland,  4  Cow.  432; 
Blunt  V.  Boy  l,^  Barb.  209;  Kinijsley  v.  Ba'come, 

4  Id.  131,  where  it  is  stated  that  the  considt; ra- 
tion must  be  such  as  to  make  the  promisor  the 
principal  debtor;  Elwoodv.  Monk,  5Wcud.  535; 
Barker  v.  BuckHn,  2  Deuio,  11;  Earle  v.  Crane, 
6  Duer,  5G4;  Alcjer  v.  Scoville,  1  Gray,  397. 

Su'od.  4.  Factor  del  credere. — In  ordi- 
nary cases  of  sales  by  factors  without  guaranty, 
the  implied  promise  of  the  factor  is  merely 
that  he  will  sell  to  persons  in  good  credit  at  the 
time;  and  in  order  to  charge  him,  negligence 
must  be  shown.  But  when  he  takes  an  addi- 
tional commission,  and  adds  to  his  obligation 
that  he  will  make  no  sales  unless  to  persons 
absolutely  solvent,  he  then  becomes  liable,  iu 
legal  effect,  for  the  loss  which  his  conduct  may 
bring  upon  the  plaintiff  without  the  onus  of 
proving  negligence.  "Doubtless  if  they  [the 
factors  defendant]  had  for  a  percentage  guaran- 
teed the  debt  owing,  or  performance  of  the 
contract  by  the  vendee,  being  totally  uncon- 
nected with  the  sale,  they  would  not  be  liable 
without  a  note  in  writing  signed  by  them:" 
Parke,  B.,  in  Couturier  v.  Hastie,  8  Exch.  56. 
See  this  case  commented  on  in  Sherwood  v. 
Stone,  14  N.  Y.  237;  see  also  Wolf)'  v.  Koppel, 

5  Hill,  4G3;  Swan  v.  Nesmlth,  7  Pick.  220; 
Bradley  v.  Rlchirdsm,  23  Vt.  720;  Midler  v. 
Bohlens,  2  Wash.  378;  Browne  Stat.  Frauds, 
sec.  213. 

S  ibd.  5.     See  note  to  subd.  1,  ante. 

Must  be  owner  of  the  note. — The  facts  of 
the  case  were:  The  defendant  owed  the  plaint- 
iffs two  hundred  dollars  for  goods  sold,  and  had 
given  them  a  due-bill  for  the  amount.  The 
defendant  proposed  to  the  plaintiffs  that  they 
should  give  him  up  the  due-bill  upon  his  pro- 
curing one  Robinson  to  make  a  promissory 
note  in  the  plaintiffs'  favor,  which  note  the  de- 
fendant orally  agreed  that  he  would  pay  at 
maturity,  if  11  )binson  did  not.  The  plaintiffs 
consented  to  the  arrangement,  and  gave  up  the 
duo-bill  to  the  defendant,  who  handed  them 
at  the  same  time  the  note  of  Robinson,  payable 
to  their  order.  Oa  default  of  Robinson,  held, 
dofendaat  not  liable:  Dows  v.  Swett,  120  Mass. 


470 


TiTLK  Xin,  Chap.  I.] 


GUARANTY  IN  GENERAL. 


-2800 


.V22.     Mr.  Browne,  St.ot.  Frand<?,   sec.    165  a,  tinn  of  lis  cleM."     Tiie  rule  of  the  text  will  ba 

reconciles  this  case  with  tlis  usual  current  <>i  fuuiid  sup;)0rt3il  i.i  Lonscp  v.   Williams,  G  Lans. 

decisions  thus:     "The   distinguishing  feature  223;  Maloiii' v.  A'«f/tf/-,  41  Pa.  St.  107;  Barker 

of  the  case  is  iu  t!ie   fq,ct  that  t'.ie   defendant  v.  Snulder,  5G   Mo.   272;   Wymcin  v.  Goodrich, 

was  not  the  owner  or  holder  of  the  note,  and  2G  Wis.  21;    Mohlle  <L-  G.  li.  Co.   v.  Joiks,  oj 

consequently  there  was  no  transfer  hy  hi  in  to  Ga.  19S;  Bruce  v.  Bwr,  G7  N.  Y.  2L;7. 
the  plaintiffs  of  any  property  of  his  in  satisfac- 

2735.    Acceplance  of  guaranty. 

Sec.  2795.  A  mere  oiler  to  guarantee  is  not  binding,  until  notice  of  its  accept- 
ance is  communicated  by  the  guarantee  to  the  guarantor;  but  an  absolute  guar- 
anty is  binding  upon  the  guarantor  without  notice  of  acceptance. 

Offer  of  guaranty. — Where  the  transaction     Wend.  3");   Uuion  L'k  v.  Coaler,  3  N.  Y.  203; 

Smith  V.  JJaiiii,  G  Hill,  r)43;  Aden  v.  L'irjhtmere, 
20  Johns.  oO>>.  See  also  Ptnny  v.  Crane  Bros. 
J^I/g.  Co.,  SO  III.  244;  Train  v.  Jonc-i,  11  Vt. 
444;  Yanceij  v.  IJrowm,  3  8need,  89;  Xeio  Haven, 
Co.  B'k  V.  M.tchell,  1.5  Conn.  20G;  Darts  S.  M. 
Co.  V.  Jones,  Gl  Mo.  409;  where  the  case  wa.^ 
decided  on  tlie  ground  tliat  "where  a  party 
directly  binds  himself  to  be  responsible  for  tba 
fulfillment  of  another's  coiitract  already  made, 
no  sucli  notice  can  be  necessary:"  Dotdeij  v. 
Cnmp,  22  Ala.  GJ9;  Mitchell  v.  Cleurrj.  Al  Md. 
374;  lilathea-s  v.  Chrisman,  12  Smed.  &  !M.  fiO.'); 
Carman  v.  EUedfje,  40  Iowa,  409;  Coohe  v.  (Jriie, 
lil  111.  ISO;  Brandt  Guar.  &  Sur.,  sees.  1G4, 
1G5.     See  also  note  to  sec.  2SG5,  post. 


is  admitted  to  amount  only  to  an  offer  of  guar- 
anty, it  is  universally  held  that  notice  of  ac- 
ceptances wi  bin  a  I'casonable  time  is  necessary. 
The  courts,  however,  differ  more  or  less  as  to 
what  is  a  guaranty  and  what  is  an  offer  to 
guarantee:  Bran(it  Guar.  &  Sur.,  sec.  157;  'Stc/' 
ford  V.  Low,  IG  Johns.  G7,  where  the  party  ex- 
pressed a  wiliiujne^s  to  guarantee  if  required; 
Beekman  v.  JJa/r,  17  Id.  134. 

Absolute  guaranty:  See  sec.  2806,  po>^t. 
This  rule  is  mo  ieled  after  tlie  New  York  rule, 
which  Mr.  Wade,  Law  of  Notice,  sec.  3SS,  as- 
serts has  the  largest  following  among  the 
states  of  the  Uni.-n,  though  the  rule  in  Massa- 
chusetts is  probably  to  the  contrary.  For  the 
New  York  rule,  see  Dovylass  v.  llovdaiid,  24 


ARTICLE  III. 

INTEKPUETATION    OF   GUAItl^iTT. 

27S9.    Gnaranfxj  of  wcomph'te  contract. 

Sec.  2799.  In  a  guaranty  of  a  contract,  the  terms  cf  which  are  not  then  set- 
tled, it  is  implied  that  its  terms  shall  be  such  as  will  not  expose  the  guarantor 
to  greater  risks  than  he  would  incur  under  those  terms  which  are  most  common 
iu  similar  contracts  at  the  place  where  the  principal  contract  is  to  be  per- 
formed. 


356;  ililUr  v.  Stewart,  9  Wheat.  GSO,  /'cr  Story, 
J.;  Ludlow  V.  Simoiul,  2  Cai.  Cus.  in  Ih'ror, 
1,  per  Kent.  C.  J.;  but  see  Btlloiii  v.  Frecborii, 
G3  N.  Y.  383. 


Sureties  and  guarantors  are  favorites  of 

the  law,  and  are  never  implicated  beyond  the 
strict  terms  of  their  agreement:  Chase  v.  31  r- 
Doiudd,  7  liar.  &  J.  IGO;  Lai^g  v.  Pi!:e,  -11 
Ohio  St.  496;  Kimjsbury  v.   ]\  est/uU,  Gl  N.  Y. 

28G0.    Guaranty  that  an  obligation  is  good  or  colleclihh. 

Sec.  28C0.  A  guaranty  to  the  effect  that  an  obligation  is  good,  or  is  collect- 
ible, imjiorts  that  the  debtor  is  solvent,  and  that  the  demand  is  collectible  by 
the  usual  legal  proceedings,  if  taken  with  reasonable  diligence. 

Guarai-ity  of  collectibility. — "Thus,  a  Due  diligence  consists  in  instituting  suit  as 
guaranty  in  these  woid?,  indorsed  on  a  note,  soon  as  possible  after  nuvturity,  ami  obtaining 
'I  lieroby  guarantee  the  collection  of  the  within  judgment  an  1  execution  thereon  as  soon  a3 
note,'  i.i. ports  a  jiromise  that  the  note  can  be  practicable:  V>ior/iies  v.  Atlee,  29  Iowa,  49.  If 
collected  of  the  maker  if  the  holder,  wiLliin  a  the  creditor  has  special  knowledge  of  lii>w  he 
reasonab  e  Li.ne  and  with  due  diligence,  prose-  can  collect  t'.ic  debc,  he  must  collect  it,  even  if 
cutes  the  same  to  judgment  and  executiou  more  than  the  regular  process  of  suic  is  neces- 
agaiust  the  maker.  This  obligation  to  prose-  sary:  J/ojf'aia.i  v.  Bechtel,  52  Pa.  St.  190.  A 
cute  witliin  a  reasonaljle  time  and  with  due  judgment  obtained  promptly  and  c.xecutioa 
diligence  is  a  condition  precedent  to  the  liabil-     theieon  is  prtnia/acie  evidence  of  due  diligence, 


ity  of  the  maker.  What  is  a  reasonable  time 
depenils  on  thj  circumstances  of  eacli  case. 
Generally,  delay  which  cannot  have  pi'ejudiced 
the  guarantor  wdl  not  discharge  him:  Galia- 
yher  v.  White,  31  I'arb.  92;  see  also  Ciirlii  v. 
Smnl/man,  14  Wead.  231;  Co)l:".  v.  Xathan, 
IG  Barb.  342;  raadtrueer  v.  Wri[iht,  6  Id.  547; 
War/ield  v.  WcUkiiis,  30  Barb.  395;"  Note  iu 
proposed  code. 


and  in  sucii  a  case,  if  other  facts  exist  which 
show  tlij  aljseuce  of  due  diligence,  the  burdeu 
of  proving  t!ie  w  falls  upon  t!:e  guarantor: 
Backus  v.  Shii/ierl,  11  Wend.  629;  Ald.khv. 
Chubb,  35  Midi.  350;  Jlofman  v.  Bechtl,  52 
Pa.  St.  19v);  and  see  Nichols  v.  Allen,  22  Miuii. 
283;  Fostn-  v.  Bame'i,  3  Vt.  GO. 

Delay  by  the  creditor  la  briu^iag  suit 
against  the  original  parties  for  a  period  of  six 


471 


, 2801-2S0r 


OBLIGATIONS. 


[DiT.  Ill,  PAr.T  IV, 


months:  Cravj  v.  PnrhiH,  40  N".  Y.  181;  seven 
xaon\h^;..P<i)miraaiii  v.  Jliiboii,  11  Bj-rb.  579; 
jantl  sij.vfDteen  months:  Burl  v.  llorntr,  5  Iil. 
J501;,his  bce:iIic!(.IuiiroadO;iabl«;.  IScealsoZJee/.vr 
■fv.  S'Udid'-rs,  G  Ircd.  L.  .'530;  Mn'mx  v.  Ila/rjht, 
U  Bar!).  7G;  ir/iee/er  v.  L^-/tw,  11  Vt.  23,:.  It 
was  held  to  be  due  diligence  wh'Ji'e  j'ldgnleiit 
had  been  obtained  against  the  principiil,  and  an 
execution  against  his  property  had  been  re- 
turned /ivlla  bona  two  days  after  the  suit 
against  the  guarantor  Vias  commenced:  Woodii 
.  V.  Shrnnan,  71  I'a.  St.  100;  and  see  Kipynn  v. 
Broclc,  72  N.  C.  554.  So  where  suib  was  not 
brought  against  the  principal  for, ten  months, 
but  ire  was  all  the  time  insolvent,  it  was  held 
txtat  tiio  guarantor  was  chargeableo     The  insol- 

2301.    Becovery  Upon  cucli  guaranty. 

Sec.  2801.  A  guaranty,  such  as  is  mentionett  in  tlie  last  section,  is  not  dis- 
cliarged  by  an  omission  to  take  proceedings  upon  the  principal  debt,  or  upon 
any  collateral  security  for  its  payment,  if  no  part  of  the  debt  could  have  been 
collected  thereby. 


vencj'-  of  the  prinoipid  in  snc'i  case  has  a  bearing 
upDu  tli3  tjuestioii  a:j  to  what  is  reasonable  time: 
liashj'n-d  v,  Hhrw,  4  Ohio  St.  204;  C'aUayher  v. 
]VhJ>.,[?,l  Curb.  92. 

Wlisre  tli3  d3iend3.nt  promissd  tils  pay- 
mo.it  of  thL'.  th.ird  party's  noLe  within  a  certain 
tiine-,  in  coiisidcration  of  the  extension  of  time 
6n  the  note  by  the  plaintilF,  but  stipulated  that 
ii  he,  the  defendant,  should  not  p'ay  the  nota 
witliin  the  time  mentioned  the  exten.sion  of 
time  should  be  discontinued,  held,  in  case  of 
noa-perfonnance  by  the  defendant,  the  [ilaint- 
iffj  must  exhaust  their  remedy  agaiiifit  the 
third  |iarty  before  proceedi.ig  upon  d  feiid- 
anc's  guaranty:  Donoliae  v.  Qijt,  7  Cal.  242. 


^     See  Cndyv.  Sheldon,  38  Barb.  103,  where  the 

/doctrine  ot  the  above  section  is  laid  down  after 

a  discussion  of  numerous  decisions^  and  of  the 

'priuci[»les   involved   and   connected   with  the 

subject. 

To  the  same  effect:  Peek  v.  Fr'inh,  10  Iowa, 
193;  Brnrlett  v.  Rich,  23  Minn.  485;  Stone  v. 
liockefdlvr,  29  Ohio  St.  G25;  McDocds  v.  Y(0- 
mans,  8  Watts,  381;  Thomai  v.  Dodije,  8  jNIich. 
51;  Sai'fordv.  Allen,  1  Cash.  473;  Dana  v.  Co- 
nant,  30  Vt.  24G;  Jones  v.  Greenlaw,  G  Coldw. 
342. 


Due  courss  of  la-w. — Wliere,  however,  the 
contract  expressly  provided  thr.t  the  guarantor 
should  not  be  liable  until  after  "due  cour;;e  of 
law"  h.-ul  boen  exhausted  aj.iiust  t'.ie  ])rior  par- 
ties, the  following  cases  held  that  th'.Tc  was 
no  room  for  construction,  and  the  exact  dili- 
gence stipulated  for,  no  matter  imw  vain  it 
might  be,  nor  how  insolvent  the  parties,  must 
be  used  to  charge  the  guarantor:  Dirhjht  v. 
Williams,  4  McLean,  5S1 ;  MoakUy  v.  I'ijjs, 
19  Johns.  G9;  Eddij  v.  StruUon^,  21  WJiid. 
255;   contra:  lleraUon  v.  Mason,  53  Mo.  211. 


2802.    Guarantor's  liability  upon  such  guaranty. 

Sec.  2802.  In  the  cases  mentioned  in  section  twenty-eight  hundred,  the 
removal  of  the  principal  from  the  state,  leaving  no  property  therein  from  which 
the  obligation  might  be  satisfied,  is  equivalent  to  the  insolvency  of  the  piiu- 
cipal  in  its  effect  upon  the  rights  and  obligations  of  the  guarantor. 

of  the  state  at  the  time  of  the  creation  of  the 


If  t.!ie  prior  parties  have  property  within 
the  state,  although  they  themselves  are  with- 
out the  state,  and  this  is  known  to  the  creditor, 
and  the  property  can  be  reached  by  attachment, 
the  ci-editor  must,  in  the  exercise  of  due  dili- 
gence, attach  such  property:  While  v.  Cii.se,  13 
Wend.  543.     If  the  original  party  resides  out 


obligation,  and  continues  to  reside  there,  and 
has  i)roperty  at  the  jjlace  of  his  residence,  it  ia 
the  duty  of  the  creditor  to  prosecute  him  there, 
before  having  recourse  to  the  guarantor:  Dart 
V.  llorntr,  5  Barb.  501;  see  NtLueil  v.  Fowler, 
23  Id.  G28. 


ARTICLE  IV. 

LIABILITY   OF   GUARANTORS. 

2806.    Guaranty,  how  construed. 

Seo.  2806.     A  guaranty  is  to  ba  deemed  unconditional  unless  its  terms  import 
come  condition  precedent  to  the  liability  of  the  guarantor. 


"Whsre    the    guaranty    ia    conditional, 

happening  of  the  condition  must  be  established 
in  order  to  fix  the  guarantor's  liability: 
Ccre'/hino  v.  Hammer,  GJ  Gal.  235.  Similar 
piinciplo  in  regard  tosurety'dliabdity:  Morjan 
V.  Meiizi.es,  GO  Id.  341. 

VViiero  one  person  guarantees  tlie  paym^rit 


of  the  debt  of  another,  in  consideration  of  the 
agreemjntof  the  creditor  to  stay  pru, tee  lings 
against  the  debtor,  the  promise  of  the  c  editor 
'H  a  con  lition  precedent,  and  its  perf  )rm;iiice 
n.ust  be  proved  to  entitle  hiin  to  a  judgment 
against  the  guarantor:  Smith  v.  Coni/jlon,  G  id. 
24. 


2307.    Liability  upon  guaranty  of  payment  or  performance. 

Sec.  2807.     A  guarantor  of  payment  or  parformiuce  is  liable  to  the  guarantee 
immediately  upon  the  default  of  the  principil,  aud  withoib  do.n.i,ad  or  notice. 

472 


Title  XlIT,  Ciiap  T.] 


GUAIIAXTY  IN  GENEHAL. 


§S-S05,  2SD9» 


ITotioe  noi  necessary.— From  a  considera- 
tion of  the  reported  cases  bearing  iij^on  the 
auesticn,  tlie  current  authority  seems  to  bo 
ecided.y  in  fa\  or  (f  the  doctrine  that  where 
the  contract  of  gnarauty  contemplates  indem- 
nity to  the  gr.arau-ec  in  a  certain  sum,  rr  sum 
capable  of  being  ascertained  with  readiness  by 
the  guarantor,  within  a  certain  time,  and  de- 
pending upon  tiie  single  contingency  of  tiie 
principal's  failure  to  perform,  no  notice  ia 
necessary:  \\'ade  on  JSTotice,  sec.  423.  It  may 
be  laid  *lown  a.s  a  genei'al  rule  that  in  case  of 
an  absolute  guaranty  the  guarantee  is  not  en- 
titled to  demand  a  notice  of  uon-pcrfin-mance: 
Baylies  8ur.  &  Guar.  202,  with  numerous  cita- 
tions: Brandt  Guar.  &  Sur.,  sec.  170.  That  this 
eection  changes  and  extends  the  law  as  it  here- 
tofore existed,  so  that  now  no  notice  is  required 
whore  prior  to  the  code  it  was  necessary,  is  un- 
doubtedly true,  find  such  seems  to  have  been  the 
opinion  cf  tl:e  code  commissioners. 

Uevr  Ycrli  courts  liave  Iield  that  where 
the  guaranty  is  for  the  paj'ment  of  a  note  or 
other  obligation,  the  undertaking  is  not  con- 
ditional but  absolute  that  the  maker  will  pay 
the  note  when  due,  and  that  when  the  maker 
fails  to  pay  the  plaintiff  has  a  complete  right 


of  rx'tion  without  notice  or  demnmW.  Brown  v. 
Curtis,    2   N.   Y.    22.};  MIcmn   v.   Eckj'ord,    15- 
Vv'end.   i3C2;  DcirhydC  v.  Lllis,   4-"i  N.  Y.    107;- 
Vaii  llensKclcier  v.  Jlirler,  liill  &  D.  Siipp.  237r 
Allfu  V.  Jilffhfmere,  11  Am.  Dec.  23o. 

The  early  C.ilifcmia  case-!,  confirmed  in 
all  the  subjerjuent  (iecisioE-s  up  t(>  the  time  of" 
the  adoption  of  the-awles,  establisha  1  the  rule 
t'.iat  when  a  party,  st  stranger  to  a  note,  atlixcd 
Irs  signature  upon-it  prior  to  deliv-iry,  with  or 
without  worrls  ileuGtiug  an  intentica  to  guaran- 
tee the  instrumetrt,  ho  was  a  guarantor,  but 
cntitleil  t)  demand  and  notice  like  an  indorse;-:. 
/?/;77.s>  V.  ]Va!do,  2  Cal.  43.1;  Pierce  v.  Kennedy, 
5  i.l.  1.3S;  Uradi/  v.  ReynoUls,  13  Iik  31;  Cfe;jer- 
V.  Clark,  Id.  did;  lieveiw  lIow<',.Vo  Id.  152;. 
Ford  V.  llendrkk-t,  34  Id.  (>73;  .Joues  v.  Gool- 
whi,  39  Id.  4<J3.  The  liability  of  such  an  in- 
dorser  is  n^w  determined  by  section.  31 17,  po-4,. 
q.  v.,  \vhich  entitles  hiuito  deaiaml  and  notics. 
There  is,  however,  one  California  case,.  Crooks- 
V.  Tul/y,  50  Id.  '2o'>,  which,  relying  upon  the 
cases  just  cited,  decides  that  the  indorserof  a 
promis.5ory  note,  after  maturity,  is  a-guai-autor 
and  entitled  to  notice  o?  non-payn»ent. 

Insolvency  of  principal:  Seo  note  to  next. 
section. 


2808.   Liabilily  upon  guaranty  of  a  conditional  obligation. 

Sec.  2808.  Where  one  guarantees  a  conditional  obligation,  liis  liability  is 
commensurate  ■with  that  of  the  principal,  and  he  is  not  entitled  to  notice  of  the 
default  of  the  principal,  unless  he  is  unable,  bj  the  exercise  of  reasoBxible  dili- 
gence, to  acquire  information  of  such  default,  and  the  creditor  has  actual 
notice  thereof. 


Guaranty    of    conditional    obL-gation. — 

]Yheie  one  parly  a'jrees  to  account  and  pay  over 
such  s..m  as  thail  be  found  owing  by  him,  and 
a  third  pc"son  covenants  that  tiie  party  thus 
agreeing  tliall  periorui  the  agreement,  an  action 
lies  against  the  covenantor  or  guarantor  with- 
out notice  from  the  covenantee  of  the  non-per- 
formance of  the  princii)al:  Doiujiass  v.  How- 
laml,  24  AVcud.  3.<,  />cr  Cowen,  J. 

If  tlie  principal  debtor  be  insolveat  when 
the  debt  becomes  tlue,  and  afterwards  so  re- 
main, no  demand  need  be  made  on  him,  or  no- 
tice of  his  tlelanlt  given  to  the  guarantor,  in 
most  cases,  u  hei-e  it  would  be  otherwise  neces- 
Bary,  unless  some  loss  or  damage  can  be  shown 
to  have  occurred  to  the  guarantor  in  conse- 


quence, and  he  will  only  be  discharge  1  tooths 
extent  of  his  injury.  Deliy  and  da:nage  r.iu-;;t 
both  concur  to  disciiarge  the  guaraiito; :  Woodi- 
son  V.  21oody,  4  IIuinp!:j.  30.'J;  Loiiirm.Lle  Sf/J, 
Co.  V.  Wiich,  10  llow.  431;  llynohb;  v.  Douj- 
lass,  12  Pet  497;  Skofudd  v.  Ilalevi  38  Am. 
Dec.  337;  Johnson,  v.  Wlhnar'h,  1.3  iilet.  41G;; 
Bank  V.  Kn'ttii,  10  Ricli.  L.  543;  March  v.  Put- 
ney, 5G  N.  11.  34;  Farmms'  <t  il/.  L'7;  v.  Ker- 
ch-vul,  2  Midi.  501;  Union  IJ'k  v.  Cc-^ter,  3  N.. 
Y.  203;  V/o/j'e  v.  llromn.  5  Oliio  .St.  304;  VoUz. 
V.  //rt/m,  40  111.  15.i;  Fuller  v.  ,V  •o^',  8  Kan. 
25;  Wilde-i  V.  S  ivayc,  1  Story,  22;  Saond  Xat.. 
B  k  V.  (,'ayhrd,  31  Iowa,  24G;  sec-  Brandt 
Guar.  &  Sur.,  sec.  173. 


2809.    Obligation  of  guarantor  cannot  exceed  that  of  principal. 

Slc.  280'.).  The  obligation  of  a  guarantor  must  be  neithe?  larger  in  amoimt 
nor  iu  other  respects  more  burdensome  than  that  of  the  principal;  and  if  in  its 
terms  it  exceeds  it,  it  is  reducible  iu  jiroportiou  to  the  principal  obligation. 


To  the  same  eirect:  liclloni  v.  Freeborn,  G3 
N.  Y.  3^3;  C^nje  v.  Lewis,  G3  111.  G04. 

Liablliiy  oi  principal  and  guarantor  co- 
extensive.—  Unless  ex[)ressly  limiteil.  the  lia- 
bility of  a  guarantor  will  be  considered  as 
co-extensi\e  with  that  of  his  principal,  and  it 
a  guarantor  becomes  bound  in  general  and  i:i- 
delinite  ter.iis,  he  makes  himself  lial)le  f (  r  all 
the  eugagementsot  his  principal  resulting  froii 
the  principal's  contract:  Winchell  v.  Doly,  15 
Hun,  1;  Story  on  Cont.,  sec.  SOtJ;  2Bouv.  Inst. 
58;  see  also  J/aniillon  v.  Van  Iiens.selwr,  43  N. 
Y.  214;  Me  ick  v.  f{noz,  41  Id.  570. 

Strict  construction:  See  note,  sec.  2790, 
aiUc.     Ii  the  gaa:auty  is  made  with  one  per- 


son it  cannot  be  extended  to  Mnotlier.  A 
guarantor  has  a  right  to  prescribe  the  exact 
lerur^of  his  agreement,  and  upon  non-cwnpli- 
ance  wi^h  them,  to  insi.^t  upon  ins  disciiarge: 
B'lrns  V.  Barrow,  Gl  N.-  Y.  39;  Peaoyt'r  v. 
WaLton,  10  John-!.  103;  nor  can  a  giuiranty  of 
p  lymeut  to  a  speciiied  amount  of  certaia  speci- 
fied jiarts  of  an  entire  contract  be  exteiwled  to- 
otlier  parts  of  the  same  contract,  even  though 
the  am  jiint  specified  is  stilli'-ient  to  cfiuiplete 
tlie  entire  on'ract:  Mrfch'-r  v.  J'i  k,  (kKN.  Y. 
(j.)~;  and  see  Fellown  v.  Prenli-m,  45  Aiui.  Dec. 
431. 

Where  one  guaranteed-  against  loa-^  arising: 
from  the  sale  of  mining  sitock  within  tiiii  next 


473 


§§■2810-2819 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


sixty   days,   he  was   held   bound   to   pay  the     assessments  levied    thereon    had    been    paid: 
anjount  of  loss  arising  from  such  sale  after  the     Marshall  v.  Lovij,  4  West  Coast  Rep.  G98. 

2810.    Guarantor  not  liable  on  an  illegal  contract. 

Sec.  2810.  A  guarantoi'  is  not  liable  if  the  contract  of  the  principal  i3 
unlawful;  but  he  is  liable  notwithstanding'  any  mere  personal  disability  of  the 
principal,  though  the  disability  be  such  as  to  make  the  contract  void  against 
the  principal 


Personal  disabllitiea  of  principal.— Fraud, 

illegality,  or  mistake,  wliich  may  rescind  the 
contract  of  the  principal,  induces  t!ie  dischitrge 
of  the  coiLitenil  obligors;  out  if  the  invalidity 
of  the  contract  rests  upon  reasons  personal  to 
the  principal,  in  the  nature  of  a  privilege  or 
protection,  the  principal  acquires  a  personal 
defense  against  the  contract,  but  the  contract 
subsists  and  the  collateral  obligors  may  hi 
charged  thereon.  The  disability  of  the  principal 
may  be  the  very  reason  why  collateral  security 
was  required:  Smylcii  v.  Itcail,  2  Rich.  L.  590; 
Bank  V.  Dllhn,  33  Vt.  122;  Kimball  v.  Newell, 
7  Hill,  Ua;  Nabb  v.  Koonlz,  17  Md.  283;  Davln 


V.  Static,  43  Ind.  103;  Weed  S!.  M.  Co.  v.  Max- 
u-cll,  G3  Wo.  4SG;  Yale  v.  Wheelock,  109  ilass. 
502;  Jones  v.  Crosthwalte,  17  Iowa,  393. 

Esjeptioa. — An  infant  bought  a  tract  of 
land,  and  gave  his  note  with  sureties  for  the 
purchase  money.  On  coming  of  age  ho  dis- 
alHnned  the  contract.  Held,  the  sureties  were 
discharged  thereby.  "Here  the  undertaking 
of  the  sureties  goes  to  the  whole  consideration. 
It  would  be  a  strange  doctrine  which  would 
give  him  {the  plaintiff)  back  his  land  and  allow 
him  to  recover  from  tlie  sureties  the  purchase 
money  also:"  Baker  v.  Bennett,  54  Mo.  82; 
Patterson  v.  Cave.  61  Id.  439.  . 


AETICLE  V. 

CONTINUi:^G   GUABAUTY. 

2814.    Continuing  guaranty,  what. 

Sec.  2814.  A  guaranty  relating  to  a  future  liability  of  the  principal,  under 
successive  transactions,  which  either  continue  his  liability  or  from  time  to  time 
renew  it  after  it  has  been  satisfied,  is  called  a  continuing  guaranty. 

Prssivmption  against  construing  contract  Parol  evidence  of  surrounding  oircum- 
as  a  continuing  guaranty. — If  no  time  is  stances  is  always  admissible  to  ai.l  in  dcter- 
lix<-d,  and  mithiug  indicates  a  continuance  of 
tlie  undertaking,  the  pi'csumption  is  in  favor 
of  a  limited  liability  as  to  time,  whether  the 
amount  is  limited  or  not:  Fallows  v.  Prentiss, 
45  Am.  Dec.  484,  and  note;  Crist  v.  Burlinjnme, 
C2  liarb.  331.  Tlie  tendency  in  this  country 
is  against  such  construction  unless  the  inten- 
tion of  the  parties  appears  from  the  surround- 
ing circumstances  so  clearly  as  not  to  admit  of 
reasonable  doubt:  Binlxall  v.  lleacock,  32  Ohio 
St.  177;  Lent  v.  Paddleford,  2  Am.  Lead.  Gas. 
141;  Cowidon  v.  Read,  7  R.  I.  570;  Gold  v.  Ste- 
rens,  12  Mich.  292;  ]Vhite  v.  Heed,  15  Conn.  4~>7; 
Whitney  v.  Groot,  24  Wend.  82;  Aldrick  v.  lluj. 
■gins,  10  S.  r^.  &  R.  213;  Anderson  v.  Blahley,  2 
Watts  &  S.  237.  The  rule  in  England  is  to  the 
contrary:  Baylies  Sur.  &  Guar.  120;  see  also 
Creiner  v.  Hi(ji/inson,  1  Mason,  323,  ^er  Story,  J. 

'2815.    Revocation. 

Sec.  2815.  A  continuing  guaranty  may  ba  revoked  at  any  time  by  the  guar- 
antor, in  respect  to  future  transactions,  unless  there  is  a  continuing  consider- 
ation as  to  such  transactions  which  he  does  not  renounce. 


mining  whether  the  instrument  is  to  be  con- 
strued as  a  continuing  guaranty  or  nc^t,  if  the 
language  of  the  agreement  itself  is  ambi<,'uous: 
While's  Bank  of  Biiffa'o  v.  M>/les,  73  N.  Y. 
335;  where  no  ambiguity  it  is  otherwise:  Boston 
tfc  S.  (.lass  Co.  V.  lioore,  119  Mass.  435. 

RatiQcation. — Where  a  guaranty  was  such 
that  standing  alone  it  would  not  have  been 
held  to  be  continuing,  but  tlie  parties  iiad  for 
some  time  acted  upon  it  as  a  continuing  guar- 
anty, it  was  held  tliat  it  should  be  so  construed, 
]i€r  Redlield,  G.  J.,  in  Mich.  State  Bank  v. 
Pecks,  28  Vt.  200;  see  Dou'jlass  v.  Reyaolls,  7 
Pet.  1 13;  and  White''s  Bank  of  Buffalo  v.  Mi/les, 
73  N.  II.  335.  For  instances  of  continumg 
guaranties,  see  Brandt  Guar.  &  Sur.,  sees. 
131-137;  Baylies  Sur.  &  Guar.  125. 


Sec.  1029,  ante. 

Doubtful  expressions  in  a  subsequent  cor- 
res[)oniIence  should  not  be  construed  as  revok- 
ing an  e.xn.icit  guaranty:  Lanasse  v.  Barker,  3 
Wheat.  101. 


Dissolution  of  copartnersMp  with  notice 
revokes:  Citif  Nat.  Bink  v.  /*hel/t<,  I'i  Hun, 
153;  an  I  see,  generally,  Jeiuleri.ie  v.  Rose,  36 
Mich.  54;  Gelpcke  v.  Quentetl,  74  N.  Y.  599. 


AETICLE  VI. 

EXONERATION    OF    GUARANTOrtS.- 

2819.    What  dealings  with  debtor  exonerate  guarantor. 

Sec.  2819-     A  guarantor  is  exonerated,  except  so  far  as  he  may  ba  indemni- 
fied by  the  prineip^il,  if  bj  any  act  of  the  creditor,  without  the  consent  of  the 

474 


Title  XIII,  Chap.  I.] 


GU-UIANTY  IN"  GENERAL. 


q  2S19' 


guarantor,  the  original  obligation  of  the  principal  is  altered  in  any  respect,  or 

the  remedies  or  rights  of  the  creditor  against  the  principal  in  respect  thereto,  in 

any  way  impaired  or  suspended. 

ton,  40  Id.  225;  Toums  v.  Biddlc,  2  Ala.  694; 
if  the  contract  is  varied,  JliirhcU  v.  IJur'on,  2 
Head,  Gi:);  see  Smith  v.  Slate,  4G  Md.  017. 

Order  by  creditor  to  return  execution  leviedi 
on  property  of  one  surety  iinsatislie  I  does  not' 
discharge  the  rest,  except  as  to  his  share: 
Dodd  v.ll'iiui,  27  Mo.  501;  contra:  Martin  v. 
Ta'ilor,  8  Bush,  384.  If  the  creilitor  releases 
one  surety,  but  expressly  provides  that  such 
release  shall  not  affect  the  liability  of  the  other 
sureties,  held,  other  sureties  bound  the  sa:nea3 
before  the  release:  IlewUCi  Adinr  v.  Ad  imf,  1 
Patt.  &  II.  34;  contra:  Jenison  v.  Governor  of 
Alahama,  47  Ala.  390. 

Release  of  securities. — It  is  well  settled 
that  if    the   creditor,    against  the    vvUl  of  the 


See  sees.  2799,  280D,  notes. 

Eiicept  so  far  as  lie  may  be  indemnified 
by  the  principal:  8ee  sec.  2824,  pout;  Moore  v. 
PahH',  12  Wend.  123. 

Rights  of  creditor  V7hsre  security  given: 
Sec  sec.  25.")4,  jto^st. 

Forbearance  will  not  discharge:  See.  2823. 
See  injra,  "Giving  Time  to  Principal."  Be- 
yond the  bare  neglect  of  the  creditor  to  en- 
force payment,  there  must  be  some  act  of  con- 
nivance on  his  part  in  a  fraud  upon  the  surety, 
or  of  a  negligence  so  gross  as  to  amount  to  a 
fraud:  McKeckuie  v.  Ward,  53  N.  Y.  541;  Peo- 
ple V.  JfiikiiiN,  17  Cal.  5u0.  Before  an  omis- 
sion of  duty  on  the  part  of  the  creditor  will 
operate  to  discharge  a  surety,  the  surety  mu;jt 


intervene  and  lequest  the  performance  of  the     surety,  releases  the  princi[)ars  property  which 


duty:  Clark  v.  Sir/dcr,  G4  N.  Y.  231;  Summer- 
hilly.  Tujip,  52  Ala.  227;  Lumsdenv.  Lronard, 
55  Ga.  374;  see  Sfcirart  v.  Barrow,  Id.  G64;  sec. 
2845,  jiost;  but  see  People  v.  Evans,  20  Cal.  429. 

Guuranti;  of  coUcctih'ditij  is  of  course  an  ex- 
ception. The  creditur  here  must  exhaust  the 
legal  remedies  without  request:  Sec.  2800,  ante; 
Aortherii  Ins.  Co.  v.  U'rijht,  13  Hun,  1G6;  S.  C, 
7G  N.  Y.  445. 

Neglect  or  refusal  to  sue  after  request 
■will  discharge:  Sec.  2845,  post,  and  note. 

Failure  to  discliarge  servant  after  his  de- 
fault is  d  seoveied  will  discharge  surety  on  con- 
tinuing guaranty  for  the  honestv  of  such  em- 
ployee: Phillips  V.  Foxall,  L.  Vx.',  7  Q.  B.,  GoG. 
Sanderson  v.  Aston,  L.  R.,  8  Exch.,  73. 

But  otherwise  if  the  default  was  occasioned, 
not  by  the  fraud  or  dishonesty  of  the  employee, 
but  was  rather  attriliutable  to  his  negligence, 
Charlotte  C.  <t  A.  R.  C<>.  v.  Gow,  59  Ga.  G85; 
see  Atlantic  <£•  /Vtc  Tel.  Co.  v.  Barnes,  04  N. 
Y.  3S.'i;  Iloice  Machine  Co.  v.  Farrington,  IG 
Hun,  591. 

Non-compliance  with  the  by-laws  of  a 


he  holds  as  security,  he  loses  hiscla'm  upon  the 
surety  to  the  extent  of  the  value  of  the  prop- 
erty surrendered:  Morley  v.  Dlrklason,  12  Cal. 
501;  Capital  Savinrjs  Bank  v.  Reel,  G2  Id.  419; 
releasing  attachment:  Kirkpntrirk  w  Ilowk,  80 
111.  122;  Jlurdv.  Spencer,  40  Vt.  581;  Kennedy 
V.  Bossier,  10  La.  Ann.  445;  Sprin/er  v.  Tooth- 
aker,  43  I\Ie.  331;  X.  If.  Savings  Bank  v.  Col- 
cord,  15  N.  H.  1 19;  Ilubhell  v.  Cdrpenter,  5  Barb. 
520;  Culluniv.  Emanuel,  1  Ala.,N.  8.,  23;  Clop- 
ion  V.  Spratt,  52  Miss.  251;  Dillon  v.  I'assell, 
5  Neb.  4S4;  Moore  v.  Gra;/,  20  Oliio  St.  525; 
Fer/tison  v.  Turner,  7  Mo.  497;  Smith  v.  Mc- 
leod, 3  Ired.  Eq.  390. 

IMerc  omission  of  bank  to  appropriate  money 
on  deposit  to  payment  of  note  will  not  dis- 
charge surety:  Voss  v.  German  Am.  Bank  of 
C,  83  111.  599;  National  Bank  of  Newbn-fjh  v. 
Smith,  60  N.  Y.  271;  see  "  Forljear.mc^,"  supra; 
Brandt  Guar.  &  Sur.,  c.  17,  18;  Cooper  v.  Wil- 
cox, 32  Am.  Dec.  G98,  note. 

Giving  tim3  to  principal  discharges 
surety.  But  to  have  this  elTect  theie  must  be 
some  binding  agreement  between  the  creditor 


corporation    by  the  directors  thereof  will  not  and  i)riiici[)al  debtor  entered  into  without  the 

discharge  the  surety  whose  liability  rests  upon  knowledge   or  consent  of  the  sun-ty,  founded 

the  conliileuce  he  has  reposed  in  his  principal  u[ion  a  valuable  consideration,  for  au  extension 

alone,  and  not  including  the  other  oiucers  of  of  time  for  a  definite  period,  whereby  tlie  crcd- 


the  corporation:  State  v.  At/irrton,  40  llo.  209; 
Morris  Camd  <t  Bank.  Co.  v.  Van  Vorst,  1  Zab. 
100;  Albany  Dutch  Church  v.Vedder,  14  Wend. 
1G5;  Amherst  /lank  v.  /.'oo/,  2  Met.  522;  Louis- 
iana State  Bank  v.  L^doux,  3  La.  Ann.  G74; 
Pittslnmih,  Ft.  W.  ,i-  C.  I?.  R.  Co.  v.  Shaef^r,  .59 
Pa.  St.  3.")0,  per  Sharswood,  J. ;  United  States 
V.  Klrkpatrick,  9  Wheat.  721;  Jones  v.  United 
States,  18  Wall.  GG2;  Board  of  Supervisors  v. 
Otis,  G2  N.  Y.  88. 

Release  of  co  surety  or  indorser. — If  there 
are  several  sureties  liable  for  the  same  debt,  and 
the  criHiitor  releases  one  of  them  from  liability, 
but  (Iocs  not  thereby  materially  alter  the  con- 
tract, it  is  now  the  general  rule  in  this  country 
that  ho  releases  tlie  co-sureties  only  to  the  ex 


itor  cannot  collect  from  the  principal  until  the 
expiration  of  the  period  mentioned:  See  next 
section  2820;  Baylies  Guar.  &  Sur.  241,  242, 
where  numerous  auth(U'itie3  are  collected;  see 
also  Brandt  Guar.  &  Sur.,  sees.  290  ct  seq.; 
Gro<s  V.  Parrott,  10  Cal.  143;  note  to  Okie  v. 
Spencer,  30  Am.  Dec.  257;  Hunt  v.  Bridijham, 
13  Id.  458;  Smith  v.  Turner,  10  Id.  017;  Sneed 
v.  Whllf,  20  Id.  175;  Casfoii  v.  Du  dap.  23  Id, 
194;  Steele  v.  Boyd,  29  Id.  225,  note;  Cope  v. 
Smith,  11  Id.  590,  note;  Fellows  v.  Prentiss.  45 
Id.  493. 

Payment  of  interest  in  advance  by  princi- 
pal debtor  to  creditor  is  per  .^•e,  l)y  the  decided 
weiglit  of  authority,  sulhcient  /irlma  facie  evi- 
dence of  a  binding  extension  of  tim.;  to  dis- 


tent that  such  released  surety  would  otherwise     charge  the  surety:  IFoodb'trn  v.  Carter,  50  Ind. 


have  been  liable  to  contribute  to  or  indemnify 
his  co-sureties:  Jemisoii  v.  Governor,  47  Ala. 
390;  State  v.  Matson,  44  Mo.  305;  Schock  v. 
Miller,  10  Pa.  St.  401;  KUmjensmith  v.  Klbi- 
gensmlth,  31  Id.  400;  see  iilso  Sacramento  Co.  v. 
Bird,  31  Cal.  00;  Thompson  v.  Adiims,  I  Freeni. 
Ch.  225.  Contra:  S'arry  v.  John->oa,  32  I. id. 
438;  releases  all  sureties,  see  Stockton  v.  Siock- 


IMdOVarnerv.  Campbell, -Ili  111.  2:i2;  People's 
Bank  v.  Pearsons,  30  Vt.  711;  AVc.'  Hampshire 
SavlwjsBankv.  Ela.  11  N.  II.  335;  Wakefield 
Bankv.  Truesdcde,  T^o  B.irb.  032;  Union  IJank 
V.  MrClunj,  9  Humph.  93;  contn:  See  43  Me. 
13  >;  lloseav.  Rowley,  '^l  Mo.  3')7;  Blacks'om 
Ba:-i\-\\nVl,  10  Pick.  12.);  llausburger's  Adm'r 
V.  Kinney,  13  Gratt.  511. 


47o 


§2820 


OBLIGATIONS. 


[Div.  Ill,  Takt  IV, 


lietervinfj  remedj/  a  fjainsf,  surety.  — Giving,'  timo 
to  principal,  but  reserving,  by  agreement,  tlie 
remedies  against  tlio  sureties,  dues  not  release 
the  sureties  for  tliey  may  praeeed  against  the 
debtor  at  any  time:  Salmon  v.  Cla'/rU.  3  Dland 
CIi.  125;  llaiinjx.  ///7/,  75  Pa.  St/ 103;  RiLcter 
V.  lioblnson,  '.id  Mo.  1j4;  Morse  v.  Ilaiit'nirjtoii, 
40  Vt.  4oS;  Solder  v.  Loriiifj,  OCus'.i.  537;  Mor- 
gan V.  Smi'k,  70  N.  Y.  537;  Wd^jman  v.  llo:i<i, 
14  Barb.  23J;  and  see  C dco  v.  Dav.'es.  73  N.  Y. 
211;  J/nid  v.  Knox,  34  Miss.  G55;  Wrhjlit  v. 
Bartl'tl,  43  N.  II.  54S;  and  see  Barber  v.  Bar- 
rows, 51  Cal.  404. 

If  the  rcla'ioa  of  snretysliip  is  unknown 
to  the  credit  ir,  lie  will  be  unaffected  by  it: 
Agneio  V.  Merrltt,  10  Minn.  SOS;  Kah/hn  v. 
Fuller,  1  McUart.  419;  EUioood  v.  Dez/'eiidorf, 
5  Barb.  33o;  Nirhols  v.  Pardons,  6  N.  II.  30; 
Debcrri/  v.  Adams,  0  Yerg.  52;  Smith  v.  Slieldea, 
35  Mich.  42;  Iloivdl  v.  Laarenrevi'le  J/';/.  Co., 
31  Ga.  G33;  Huberts  v.  Bane,  32  Tex.  335;  and 
see  sen.  23;}2,  post. 

The  mere  taldnij  of  collateral  security  whicli 
does  not  impair  the  right  of  action  on  tlie 
original  obligation  when  such  action  accrues 
does  not  discharge  the  surety:  Cniqer  v.  B.irbe, 
11  Tex.  GOl;  iJnw/'ew  /Jushey, 4dSh\.  141;  Fan 
Etten  V.  Trjwldcn,  C7  Barb.  342;  Austin  w  Cur- 
tis, 31  Vt.  01;  Rcnisden  v.  Graves,  41  N.  Y.  471. 

But  if  tlie  creditor  accepts,  in  payment  of 
the  debt,  a  note  or  bill  which  matures  after  tlie 
originrd  ohligation,  t'.iis  will  be  an  extension  of 
time,  an  1  coiisei|ueutly  discharges  the  surety: 
Armx'ewl  v.  IVard,  2  Putt.  &  II.  504;  Bamjs  v. 
Mosher,  23  IJarb.  47'^;  Lee  v.  Sewxll,  2  La.  .-inn. 
940;  Myers  v.  Welles,  5  Hill,  403;  Appleton  v. 
Parker,  15  (J.ay,  173;  Weed  S.  M.  Co.  v.  Ober- 
reicli,  33  Wis.  325;  Al'tany  Fire  Ins.  Co.  v. 
Diefendorf,  43  Barb.  444;  and  see  note,  Okie  v. 
Spencer,  33  Am.  Dec.  257,  253. 

A  ivrit'en  aijreement  extendlnrj  time,  drawn  up 
to  be  executed  liy  four  parties  to  a  contract, 
two  of  whom  are  sureties,  but  signed  by  three 
onlj%  is  binding  on  none:  Barber  v.  Burrows, 
51  Cal.  473. 

Di3:;liir2e  of  surety  by  alteration  of 
priao2p3ilrj  coairaot;  8ee  sec.  2321.  Chaug3 
must  be  material:  Ilamfhre/s  v.  Crane,  5  Cal. 
173;  Brown  v.  Straw,  G  Neb.  530;  Bliir  v.  Bank 
of  Tennessee,  1 1  lluinpli.  84;  Arnold  v.  Jones,  2 
K.  I.  345;  Kinj^bury  v.  Westfdl,  01  N.  Y.  3  30. 

Changing  <late  of  a  note:  Britton  v.  Dlerker, 
46  Mo.  501;  Pelton  v.  Prescott,  13  Iowa,  557; 
Stevens  V.  (Jra'iam,  7  Serg.  &  II.  535;  M-il'er  v. 
Oilleand,  19  Ri.  St.  110;  Dink  of  Unite  I  Spates 
V.  Russell,  3  Yeates.  301;  Wool  v.  Steele,  9 
Wall.  80;  Lisle  v.  Royers,  IS  B.  Mon.  523; 
Brown  v.  S,'raw,  6  Neb.  530;  or  introducing 
words  relative  to  interest  or  the  terms  o  i  wliich 
the  interest  \.a  to  accrue:  Mar-tli  v.  Griffin,  42 
Iowa.  403;  Ful  ner  v.  Seitz,  GS  Pa.  St.  237; 
Dewey  v.  Reed,  43  Barb.  IG;  Locknane  v.  Emer- 
son, 11  Bash,  GO;  Konntz  v.  J  fart,  17  Ind.  323; 
Ihtrf  V.  Cloaser,  33  Id.  210;  Glover  v.  R  )bblns, 
40  Ala.  219;  JJontt  v.  Drown,  13  Ohio  St.  331; 
or  otlierwlse  changing  the  terms  of  thj  note  by 
erasure  or  ad  .ition;  Goodman  v.  Eastman,  4 
N.  H.  455;  Gree  'field  Sav'ntj^  Dank  v.  Stowe'l, 
123  Mass.  197;  Robinson  v.  'Reed,  43  Iowa,  219; 
Hanson  v.  Craw'"y,  41  Gi.  303:  Church  v,  llo  v- 
ard,  17  Hun,  5;  Woolworth  v.  Bank  of  America, 


19  Johns.  330 — releases  the  surety.  Tearing 
o(T  the  words  "  sureties,"  whci'e  it  tlid  not  alter 
the  liability  of  tlie  sureties,  <litl  not  discharge 
the;n:  /fnmphrcys  v.  Crane,  5  Cal.  173;  see 
also  Sacramento  v.  Kirk,  7  Id.  419. 

Bia:il:3,  authority  of  principal  to  fill  in, 
may  be  implied  from  atccailaut  i^ircumstancea 
by  parol:  Spextke  v.  United  State"-,  ')  Cranch,  23; 
Smi:.h  V.  Crooker,  5  Mass.  533;  Duller  v.  United 
Sates,  21  Wall.  272;  Inhab-tants  (f  Dencsck  v. 
Huntress,  53  Me.  89;  State  v.  Pepper,  31  Ind. 
70;  McCormlck  v.  Day  City,  23  Mic'i.  457; 
State  V.  Younj,  23  Minn.  551;  Welland  Canal 
Co.  V.  Hathaway,  8  Wend.  433;  Dnrtlett  v. 
Board  of  Educntion,  59  lil.  331;  see  Baylies 
Sur.  &  Guar.  230-203;  Brandt  Guar.  &  Sur., 
c.  15,  p.  445. 

Chsnss  of  duties. — If  the  duties  of  the 
principal  are  changed  by  the  obligee  after  the 
surety  has  become  bound,  surety  generally  dis- 
charged thereby:  Boston  Hat  Mfy.  Co.  v.  Jfct- 
shitjer,  2  Pick.  223;  Miller  v.  Stewart,  9  Wlieat. 
G33;  Mlll-r  v.  Stewart,  4  Was'.i.  23;  People  v. 
Gardner,  55  Cal.  334;  but  see  Strawbrid'je  v. 
Bdtlmrre  <&  O.  R.  Co.,  14  Md.  300;  People  v. 
Pennork,  G3  N.  Y.  421. 

CIlaas3  of  psiial  sum  in  an  oflioial  bond, 
after  part  of  the  sureties  have  sigu(Hl,  discharges 
sue'i  sureties:  People  v.  Knecland,  31  Gal.  233; 
but  see  People  v.  Eaton,  41  Id.  057. 

ToaJer  by  surety  or  priuoipal  of  the 
amoiint  of  the  indebtedness  discharges  the 
sureties. 

By  surety:  Hayes  v.  Josephi,  2G  Cal.  535; 
Jo^lyn  V.  Eastman,  40  Vt.  258. 

Dy  princ'pil. — And  for  the  purpose  of  dis- 
charging the  sureties  it  is  not  necessary  that 
such  tender  be  paid  into  court  or  kept  good: 
Curiae  V.  Packard,  20  C,A.  l'J4. 

Departure  from  contrast  by  creditor  in 
dealings  with  principal  discharges  surety;  thus 
where  t!ie  principal  is  to  be  paid  by  install- 
ments, ami  the  obligee  pays  him  faster  than  the 
contract  provides,  the  surety  is  discharged: 
Brayij  v.  >Shaiii.  49  Cal.  131. 

Dlsjliarge  of  prinoipnl  generally  releases 
surety:  Pad  lleford  v.  Thaclier,  48  Vt.  574; 
Brldps  V.  Phillips,  17  Tox.  123;  Dl-keson  v. 
D  II,  13  La.  Ann.  249;  Lynch  v.  Reynolds, 
13  Jolms.  41;  Anthony  x.  Capel,  53  Miss.  350; 
Boschert  V.  Drown,  72  Pa.  St.  372. 

Surety  fully  indemnlfird  is  not  discharged  in 
such  a  case:  Moore  v.  Pal  le,  12  Wend.   1_'3. 

Imprisonment  of  the  principal  on  cxecation 
for  the  debt  ha-s  been  heUl  to  be  so  lo!ig  as  it 
c  )ntinue3,  a  satisfaction  of  the  dj')t,  wliich 
bars  the  creditor  during  that  time  from  all 
otlier  remedy  therefor:  Koenimy  v.  Steckel,  58 
N.  Y.  475. 

Sareiy  or  guarantor  disohargad  by  con- 
oeilai3at  or  fraud:  Brandt  Gi\dv.  &  Sur., 
sees.  313-333;  Baylies  Sur.  &  (Juir.  233-;539. 
If  sureties  sign  with  the  express  understand- 
ing with  tlie  principal  tliat  certain  other  per- 
sons shall  sign  as  sureties,  a  delivery  of  the 
bon  1  to  the  obligee  by  tlie  principal  without 
the  signature  of  such  other  persons  will  not 
discharge  the  sureties  who  signed:  Tldball 
v.  //alley,  43  Cal.  010.  If  such  agreement  is 
witli  the  creditor,  surety  is  not  b.»uiid  unless  it  is 
caniplled  with:   Brandt  Guar.  &  Sur.,  sec.  349L 


2823.    Vo  Id  pro  misfs . 

Secx-  2320.     A  promise  by  a  creditor,  which  for  any  cause  is  void,  or  voidable 

476 


Title  XIII.  Chap.  I.] 


GUATtANTY  IN  GENERAL. 


§§  2821-2825 


by  him  at  his  option,  does  not  alter  the  obligation,  or  suspend  or  impair  the 
remedy,  within  the  meaning  of  the  last  section. 
Giving  time  to  principal:  See  note  to  sec.  2819,  supra, 

2821.    Rescission  of  alteration. 

Sec.  2821.  The  rescission  of  an  agreement  altering  the  original  obligation  of 
a  debtor,  or  impairing  the  remedy  of  a  creditor,  does  not  restore  the  liability  of 
a  guarantor  "who  has  been  exonerated  by  such  agreement. 

Erasing  alteratioa— A  material  alteration     13  N.  H.  240,  his  liability  will  be  revived: 


destroj  s  the  surety's  liability  on  the  mutilated 
instrument:  Sec  note  to  sec.  2819.  The  identity 
of  the  instrument  has  beendestroycd  and  an  era- 
sure iif  the  alteration  will  not  restore  the  sure- 
ty's liability  on  the  grounds  of  public  policy: 
Nefw  Horner,  (5.3  Pa.  St.  327;  Lemexj  v.  Reed, 
40"Barb.  IG;  Fulmer  v.  Seitz,  08  Ta.  St.  237; 
Marsh  V.  Griffin,  42  Iowa,  403;  Locknave  v.  Em- 
erscn,  1 1  liusli,  G9;  Glover  v.  ^o6m.s-,49Ala.  219. 
Revival  of  liability  efter  discharge. — If, 
witli  full  knowledge  of  his  discharge,  the  surety 
makes  a  new  promise  to  pay  the  debt,  although 
not  upou  a  new  consideration,  Fowler  v.  Brooks, 


Marshall  v.  Tracy,  74  111.  379;  Du?enherry  v. 
Jloyt,  53  N.  Y.  521.  The  new  promise  need 
not  be  in  writing,  but  it  must  be  express,  un- 
conditional, and  unequivocal:  liandUlje  v.  Ly- 
man,  124  Mass.  361;  Moneley  v.  Collwell,  59 
Tenn.  208;  Siem  v.  Niisshaum,  3  Daly,  382; 
Allen  V.  Ferguson,  18  Wall.  1 ;  see  Apjirrson  v. 
Stewart,  27  Ark.  619;  WilHfs  v.  Cotherson,  3 
111.  App.  644.  There  is  no  authorized  agency 
for  such  a  purpose  between  jomt  debtors,  prin- 
cipal and  surety,  or  insolvent  debtor  and  his 
assignees:  Smith  v.  Ryan,  66N.  Y.  332;  Picket 
v.  Leonard,  34  Id.  175. 


2822.    Part  performance. 

Sec.  2822.  The  acceptance  by  a  creditor  of  anything  in  partial  satisfaction 
of  an  obligation  reduces  the  obligation  of  a  guarantor  thereof  in  the  same 
measure  as  that  of  the  principal,  but  does  not  otherwise  affect  it. 

Part    performance   of   the   obligation,  ex-     on  payment  of  fifty   cents  on  the  dollar,  and 


pressly  accepted  by  the  creditor  in  writing, 
would  extinga  sh  the  obligation  of  the  debtor, 
and  tlicrefoic  liiat  of  the  surety:  Sec  sees.  1523, 
1524,  aide;  and  see  OberiidorjJ'  v.  Union  Bank 
of  Baltimore,  31  Wd.  126,  where  it  Mas  held 
that  the  parol  release  of  the  principal  debtor, 


the  actual  paj'ment  of  such  sum  by  the  princi- 
pal debtor,  discharged  neitlier  principal  nor 
surety,  there  being  no  consideration  for  the 
agreement,  and  no  deed  of  composition  with 
the  creditors,  or  release  under  seal,  which 
would  have  imported  a  consideration. 


2823.  Dda]j  of  creditor  does  vol  discharge  guarantor. 

Skc.  2823.  Mere  delay  on  the  part  of  a  creditor  to  proceed  against  the  pnn- 
cipal,  or  to  enforce  any  other  remedy,  does  not  exonerate  a  guarantor. 

Notice  to  creditor  to  sue:  See  jiost,  sec.  7  Id.  419;  see  note,  sec.  2819,  "  Forbearance;" 
2845,  and  note.  To  tlie  same  effect:  JJiim/ih-  and  sec.  2S'2.'),  ])ost,  note,  "Failure  to  Present 
reys  v.  Crane,  5  Cal.  173;  Sacrainento  v.  Kirk,     Claim." 

2824.  Guarantor  indeninifipd  bij  the  debtor,  not  exonerated. 

Sec.  2824.     A  guarantor,  who  has  been  iudemniHed  by  the  principal,  is  liable 

to  the  creditor  to  the  extent  of  the  indemnity,  notwithstanding  that  the  creditor, 

without  the  assent  of  the  guarantor,  may  have  modified  the  contract  or  released 

the  principal. 

Sec  sec   iSlH,  and  note.  cipal:  Moore,  v.  Paine,  12  Wend.  123;  Ten  Eyrls 

ludcmnixiad  guarantor. — In  such  case,  the  v.  Holmes,  3  Sand.  C'li.  42S;  Smdh  v.  S!cele,  25 
Burety  himself  occupies  the  position  of  a  yir'ni-     Vt.  427;  see  also  sec.  2794,  subd.  1,  ante. 

282  J.    l)u<eharge  of  principal  hi/  act  of  law  does  not  discharge  guarantor 

Sec.  23J5.  A  guarantor  is  not  exonerated  by  the  discharge  of  his  principal 
b}'  operation  of  law,  without  the  intervention  or  omission  of  the  creditoz'. 


Principals  dischargo  by  oporation    of 

law. — A  f.iniiliur  illustration  of  this  rale  is 
the  tlisciiaige  of  the  principal  under  bankrupt 
or  insolvent  laws:  G  irnetl  v.  Uuper,  10  A  a. 
842;  Kane  \\  l:i<jra!iiim,  2  Johns.  Cas.  403; 
Seaman  v.  Drake,  1  Cai.  9;  IntjUs  v.  !\Iac- 
donga/,  1  Moo.  TJG;  ClajUn  v.  Cogui,  48  N.  H, 
411;  Moore  v.  Wa'ler's  lleira,  1  A.  K.  Marsh. 
483;  Phdlips  V.  Solomon,  42  Ga.  192. 

Act  of   God.  —  Tlie  death  of  the   principal 
will  not  ordinaiily  per  se  discharge  the  saru- 


ties,  but  in  recognizances  the  sickness  of  the 
principd,  which  prevents  liim  fiom  appear- 
ance at  court,  Will  excuse  the  bail  from  a 
non-performance:  People  v.  Tabbs,  37  N.  Y. 
5SG;  Scully  v.  Kirk/iatrick,  79  Pa.  St.  324;  or 
his  death  before  t!io  term:  Sleebnan  v.  Matlix, 
38  N.  J.  L.  2!7;  or  after  forfeiture  of  the  i-ecog- 
nizance  bub  before  judgment  thereon:  t)>tate  v. 
Cone,  32  Ga.  0ij3. 

"Art  of  God,"  ill  general,  does   not   excuse 
surety  or  guarantor  from   the  perforniajico  of 


477 


§2S31 


OBLIOATIONS, 


[Div.  III.  VAv:r  J"^, 


his  contract,  fijf  he  might  have  provick'd  in 
the  agrc;ciiicnt  f(ir  liis  exemplion  frmu  lialjiliiy 
in  such  a  case:  JJncoii  v.  Cohb,  45  lil.  47;  Jilill 
Foundry  v.  Ilorcij,  21  Pick.  441;  L>' moll  v. 
Jo7iei<,  2  Wall.  1;  >b'<rf/e  v.  Z/mc^-,  Gl  111.  313. 
So  a  gunrantor  or  surety  of  the  payment  of 
rent  will  nob  be  discharged,  in  tlie  absence  of 
express  exemption,  because  by  the  act  (jf  God 
the  premises  have  l)(.cn  destroyed  or  become 
useless  to  liis  principal:  Kingtsburij  v.  W<-sfj'all, 
61  N.  Y.  3,30;  see  also  Steele  v.  Uurk,  Gl  111. 
343  (vessel  destroyed  by  act  of  God).  If  per- 
formance of  condition  in  the  bond  becomes  im- 
possible the  obligation  is  discharged:  Scully  v. 
Kirki>atrh-k,  7U  i'a.  St.  324;  see  Baylies  Sur. 
&  Guar.  287. 
Failure  to  present  claim  against  estate. 


If  the  creditor  fails  to  present  his  claim  against 
the  estate  of  the  deceaaed  jirincipal  until  all 
remedy  against  the  estate  is  lost  by  reason  of 
sucii  delay,  nevertheless  the  surety  is  aiot  dis- 
cliargcd  by  this  merely  i>assivo  dereliction. 
The  discharge  of  the  estate  is  an  act  of  law: 
llaihairaij  v.  JJnvis,  33  Cal.  101;  M inter  v. 
Branch  Bank  of  MohUe,  23  Ala.  702;  Fe.lrow  v. 
Winemav,  40  Ind.  148;  Uai/  v.  Brenner,  12 
Kan.  105;  Vredenbimih  v.  •'^•uyder,  G  Iowa,  39; 
Moore  v.  Gray,  2o  Ohio  St.  525;  VU'ars  v. 
Puimn-,  G7  111.  204;  Anhhy  v.  Johnston,  23  Ark. 
103;  contra:  Dor--<ey  v.  Wayman,  G  Gill,  50; 
see  also,  to  same  eO'ect,  in  insolvency,  likharda 
V.  (  ommouK-ealth,  40  Pa.  St.  14G;  Dye  v.  JJyCt 
21  Ohio  St.  86. 


CHAPTER  IL 

SURETYSHIP. 

Article  I.    Wno  art?  StniETiES * 2831 

II.     Liability  of  Sureties 2S36 

III.  PiGIlTS  OF  SOREIIES 2844 

IV.  RiciiTS  OF  Crkditors 2854 

V.    Lettek  of  Credit ^ 2858 


ARTICLE  I. 

WHO    ARE    SURETIES. 

2831.    Surely,  what. 

Sec.  2S31.  A  surety  is  one  wlio  at  the  request  of  another,  and  for  tlie  pur- 
pose of  securing-  to  him  a  benefit,  becomes  responsible  for  the  performance  by 
the  latter  of  some  act  in  favor  of  a  third  jjerson,  or  hypothecates  property  as 

security  therefor. 


Distinctions    between    guarantors    and 

Bureties.^Whcre  the  decisions  have  attempted 
to  draw  the  distinctions  between  sureties  and 
guarantors,  they  have  laid  great  stress  upon  the 
duty  of  the  surety  to  know  every  default  of  the 
principal  without  notice,  and  on  the  other  hand, 
the  right  of  the  guarantor  to  notice  of  non- 
performance. It  will  be  observed  that  this 
distinction  is  virtually  abolished  in  this  state 
by  sections  2S07and  2S0S,  ante.  In  other  eases 
it  is  urged  that  due  diligence  must  be  shown  by 
the  creditor  in  order  to  charge  the  guarantor, 
whereas  in  the  case  of  a  surety  this  is  not 
necessary:  Bej<jart  v.  White,  52  Pa.  St.  440; 
Woods  V.  Sherman,  71  I<1.  104;  Gaff  v.  Sims,  45 
Ind.;  but  this  distinction,  whatever  may  be 
the  current  of  decisions,  is  certainly  not  the 
rule  in  this  state:  See  sees.  2823,  2807,  ante. 
The  guaranty  of  collectibility  will  of  course  be 
remembered  as  sui  ijmierls,  and  an  exception  to 
the  above:  See  sec.  2800. 

While  statutory  changes  have  likened  to  a 
great  degree  the  rights  and  liabilities  of  sure- 
ties and  guarantors,  yet  in  some  respects  the 
position  of  surety  is  better  than  that  of  guar- 
antor. They  are,  however,  very  similar,  so  far 
as  their  legal  status  is  concerned.  Tiie  follow- 
ing, perhaps,  indicates  the  distinctions  between 
them: 

1.  A  surety  is  bound  with  his  principal,  as 
an  original  promisor,  on  the  same  contract. 
The  contract  of  a  guarantor  is  his  own  separate 
contract.  Therefore  a  surety  may  be  sued 
jointly  with  his  principal,  whereas  a  guarantor 


cannot:  McMillan  v.  BulVa  Head  Banh,  32  Ind. 
1 1 ;  S.  C,  2  Am.  Rep.  320;  Central  SaviiKjs  Bank 
V.  Shine,  48  Mo.  456;  S.  C,  8  Am.  Rep.  115; 
Read  V.  Cults,  22  Am.  Dec.  18G;  see  also  Code 
Civ.  Proc,  sec.  383,  and  note. 

2.  A  surety  is  usually  bound  with  his  princi- 
pal by  the  same  instrument,  executed  at  the 
same  time  and  on  the  same  consideration.  The 
contract  of  a  guarantor  is  usually  entered  into 
before  or  after  that  of  the  principal,  and  founded 
upon  a  separate  consideration  from  that  of  the 
principal  contract.     But  see  sec.  2792,  ante. 

3.  The  contract  of  guaranty  is  essentially 
mercantile.   Suretyship  has  a  niuch  wider  scope. 

4.  A  surety  enters  into  a  contract  primarily 
for  the  benefit  of  the  debtor:  See  text.  With 
a  guarantor  the  benefit  of  the  delitor  is  not 
generally  a  material  part  of  the  inducement  to 
contract. 

The  last  three  distinctions  go  only  to  the 
nature  of  thecontract,  and  havenodirect  concern 
with  the  liability  of  the  parties.  With  resjject 
to  distinctive  liability,  the  first  is  the  only  real 
distinction  mentioned. 

Two  other  distinctions  might  be  drawn 
from  the  language  of  subsequent  sections  of  the 
coile. 

5.  In  section  2840  the  surety  is  exonerated, 
not  only  in  a  like  nianiier  as  a  guarantor,  but 
also  "to  the  extent  to  whicii  he  is  prejudiced 
by  any  act  of  tlie  creditor,"  etc.:  Subd.  2. 

6.  By  the  same  section,  sec.  2840,  suhd.  3, 
which  should  be  read  in  conjunction  with  sec. 
2845,  the   aurety  obtains    Oii    additional  safe- 


478 


Title  XIII,  Chap.  II.] 


SURETYSniP. 


§§  2832-2S36 


guard  which  is  not  extended  hy  the  language  of 
the  section  to  guarantors. 

Tims  guai-aiitors,  under  our  code,  appear  to 
be  in  a  Nvorse  piisition  than  sureties,  having 
fewer  opportunitici  for  exoneration  from  liabil- 
ity, and  their  haliilities  in  other  respects  lieing 
practically  the  same.  And  thijwith  I'eason,  for 
thougli  guarantors  but  seldom  entwr  into  their 
contracts  txci.pt  upon  some  new  and  separate 
consideration  (sec  however  sec.  '27S>-!,  ante), 
sureties,  on  the  other  hand,  receive  in  general  no 
other  consideraiion  than  that  embraced  by  the 
princip.d  contract,  their  obligations  being  en- 
tered into  contemporaneously  with  the  principal 
contract  and  for  the  purpose  of  securing  the 
principal  a  benclit. 

Indorse rs. — The  drawer  of  an  accepted  bill 
and  the  indorsers  of  a  bill  or  note  occupy  in 
respect  to  tlic  holder  a  relation  much  rcsenibling 
that  of  surety  and  creditor,  but  differing  in  the 


essential  characteristic  of  contribution,  which 
does  not  exist  among  indorsers.  i'urtliermore, 
an  iudorser  is  not  liable,  like  a  surety,  primarily 
upon  llic  contract  of  his  principal,  but  upon  a 
se;  aratc  and  independent  contract,  conditioned 
U[i0ii  a  due  demand  upon  the  principal  (the  ac- 
ceptor or  maker),  and  the  requisite  notice  of 
dishonor  to  himself.  In  New  York  it  is  held 
that  an  indorser  cannot,  like  a  suretj,  call  upon 
tlie  creditor  to  jirosecute  the  princi[>;!l:  Trimbie 
V.  Thome,  16  Joims.  152;  see  Daniel  on  Ncg. 
Inst.,  sec.  1303. 

On  this  subject  generally,  see  cases  cited 
under  I,  supra;  Brandt  Guar.  &  Sur.,  sec.  !; 
B-vylies  iSur.  &  Guar.,  sec.  1;  Courlli  v.  Dennis, 
7  Mot.  4S;  (tx/onl  Dank  v.  ILn/nes,  S  Pick.  4-27. 

Kypotll2Cat33  property:  See  Varlie  v.  f/ii- 
denvoo  I,  IS  Barl).  501,  same  effect. 

Importanoa  of  request:  Sue  in  note  to  sec. 
28-17. 


2832.    Apparent  principal  may  shoio  that  he  is  siirchj. 

Sec.  2832.  Oug  who  appoars  to  be  a  principal,  whether  by  the  terms  of  a 
written  instrument  or  otherwise,  may  show  that  he  is  in  fact  a  surety,  except  as 
against  persons  who  have  acted  on  the  faith  of  his  apparent  character  of  prin- 
cipal. 


Knov7ledc3  by  creditor  necessary. — It  is 
generally  held,  in  tiie  decisions  which  ibllow 
this  doctrine,  that  knowledge  by  the  creditor  of 
the  fact  of  suretyship  is  necessary  in  order  to 
admit  parol  evidence  as  to  the  suretyship,  and 
to  cntiulc  the  surety  to  his  ri^i^hts  and  inununi- 
ties  as  such:  Ory.'sv.  Ncwed,  17  Conn.  97;  Wil- 
son V.  Foot,  1 1  Met.  285;  Murray  v.  Graham, 
29  Iowa,  520;  sec  note  to  Grafton  Bank  v.  Kent, 
17  Am.  Dec.  41(J;  and  this  knowledge  by  the 
creditor  must  be  alleged  and  proved:  Farmers' 
National  Uanlcw  Stovr,  GO  Gal.  387,  392. 

It  '\i  not  necessary  that  the  creditor  siiould 
have  knowledge  of  the  true  character  of  the 
surety  at  tlio  time  the  obligation  was  executed. 
It  wi  J  be  suliicient  if  he  have  such  knowledge 
when  he  committed  the  act  which  the  surety 
complains  of  as  working  his  release:  Bank  of 
Misouri  V.  Mattion,  2G  Mo.  243;  Lauman  v. 
Nicho's,  15  Iowa,  IGl;  Wheat  v.  Kenda',  6  N. 
H.   5J4;  Smith  v.  Sheldon,  35  Mich.  42. 

It  has  been  urged  that  this  is  in  effect  a  vio- 
lation of  the  common-law  rule,  and  an  admis- 
sion of  parol  evidence  to  vary  the  terms  of  a 
written  contract.  To  which  it  is  answered  that 
such  evidence  does  not  concern  tlie  terms  of  tlie 
contract,  but  goes  to  establish  something  out- 
side of,  bjyond,  and  collateral  to  such  terms: 
Hose  V.  IVidiams,  5  Kan,  483;  Carpenter  v. 
Kinrj,  9  Met.  511;  Harris  v.  Brooks,  21  Pick. 
195;  Ward  v.  Stout,  32  111.  399;  Bank  v.  Mum- 
ford,  G  (ia.  44;  see  note  to  Oraflon  Hank  v. 
Kent,  17  Am.  Dec.  416. 

Rule  before  the  code. — The  majority  of 
the  American  decisions  follow  the  rule  of  the 


above  section:  Brandt  Guard.  &  Sur.,  sec. 
17;  but  the  California  cases  prior  to  the 
code  established  the  law  in  this  state  thiit  one 
w!io  signed  a  promissory  note  as  maker,  under 
whatever  circumstances,  would  not  be  allov.^cd 
to  vary  his  apparent  obligation  by  parol:  And 
V.  3Ia(jruder,  10  Cal.  282;  J/umphreys  v.  Yale, 
5  Id.  173;  llartman  v.  Burlingame,  9  Id.  557; 
Kritz^r  v.  Mills,  Id.  21;  Bane  v.  Corduan,  24 
Id.  1G4;  Shriverv.  Lovejoy,'S2  Id.  574;  Damon 
v.  Par.loir,  34  Id.  278. 

Seotion  construed. — Per  McKinstry,  J.,  in 
Harlan  v.  Ey,  55  Cal.  340:  "This  section  of 
the  Civil  Code  relates  to  the  class  of  cases  in 
which  the  apparent  differs  from  the  real  char- 
acter of  a  contracting  party.  But  one  may  bo 
a  surety  merely  as  between  himself  and  his  co- 
promisor,  and  yet,  as  to  the  cretlitor,  botli  his 
apparent  and  actual  character  be  that  of  a 
principal.  *  •  ♦  Plaintiffs  refused  to  loan 
the  money  to  Scroggins  alone,  but  agreed  to 
lend  it,  and  did  lend  it,  to  Scroggins  and  de- 
fendant upon  their  joint  and  several  obligation. 
That  they  knew  the  former  alone  was  to  get 
the  use  of  the  money  cannot  change  the  result. 
It  was  lent  to  both.  The  cliaracter  wliich  it 
was  agreed  should  be  performed  bj'  defendant 
in  the  transaction  with  plaintiffs  was  that  of 
principal.  If  plaintiffs  had  advanced  tlieir 
money  without  notice  of  the  suretyship,  they 
could  have  held  defendant  as  maker.  If  tiiey 
had  agreetl  to  take  him  as  surety,  they  could 
only  have  held  him  as  such,  althougii  he  ap- 
peared as  principal  upon  the  written  instrument. 
The  present  is  a  case  beyond  tiie  statute." 


ARTICLE  II. 

LIABILITY  OF   SURETIES. 

2836.    Limit  of  surety's  obligation. 

Sec.  283G.  A  surety  cannot  be  held  beyond  the  express  terms  of  his  con- 
tract, and  if  such  contract  prescribes  a  penalty  for  its  breach,  he  cannot  in  any 
case  be  liable  for  more  than  the  penalty. 

479 


^§  2837,-'£838 


OBLIGATIONS. 


[Div.  Ill,  Paet  ir. 


Express  terms  of  his  contt%c5t.— To  the 

same  effect:  Pfople  v.  Duster,  11  Cal.  215;  Peo- 
ple V.  Brci/foijli',  17  LI.  r)04;  Si-hlnss  v.  iKA/^f, 
16  Id.  Go.  Seo  L'xjhtiier  v.  Meuze/l,  ."old.  4r)2; 
Victor  E.  M.  Co.  v.  Schejler,  Gl  Id.  5.30,  where 
more  property  was  ijlaced  in  tlie  control  of 
the  i)rinci!ial  than  waf?  permitted  by  the  con- 
tract; Carson  Opera  I'louHt  v.  Miller,  8  Pac.  C. 
L.  J.  9i:?;  Me'loskey  v.  Cromwdl,  11  N.  Y.  598; 
Bethune  v.  Dozier,  10  Ga.  2-10. 

The  Ualiiliiy  of  a  surety  on  an  attachment 
bond  is  on  his  contract.  He  is  not  liable  as  a 
trespasser  for  a  seizure  of  property  attached  by 
the  sherifi-,  even  if  the  ^ond  was  void:  McDon- 
ald V.  F(tt,  49  Cal.  354.  "An  indictment 
■  against  H.  for  receiviHg  stolen  goods. '^  Such 
finding  is  not  sufficient  to  charge  sureties  on  a 
recognizance  for  the  appearance  of  one  II., 
charged  with  the  crime  of  receiving  two  mules 
alleged  to  have  been  stolen:  People  v.  Hunter, 
10  Id.  502. 

Not  liable  for  more  than  prescribed  pen- 
alty— T!ie  principle  which  limits  tlie  liability 
of  the  surety  by  the  penalty  of  his  l)ond  inheres 
intrinsically  in  the  character  of  his  engagement. 
He  does  Kot  undertake  to  perform  the  acts  or 
duties  stipulated  by  his  principal,  and  would 
not  be  permitted  to  control  their  performance, 
and  could  not,  where  his  principal  was  a  public 
officer:  Leg<jett  v.  Humphreys,  21  How.  CO. 


Marj  he  chnrged,  with  the  legal  rate  of  interest 
in  addition  to  penalty,  in  co-'K  of  kin  02vn  default. 
When  the  time  has  come  for  t!ie  .surety  to  dis- 
chiiTge  his  liabilitjs  and  he  neglects  and  refuses' 
to  do  so,  it  is  equally  reasonable  and  altogctiier 
just  t!iat  he  should  cmnpensate  the  ci'editorfor 
the  delay  which  lie  has  interposed.  "The 
question,  in  sliort,  is  not  what  13  the  measure 
of  a  surety's  liability  under  a  penal  liond,  Ijub 
wliat  does  the  law  exact  of  him  for  an  unjust 
delay  in  payment,  after  his  liability  is  ascer- 
tained and  the  debt  is  actually  due  from  him:"' 
Bralnard  v.  Jones.  18  N.  Y.  S."',  j.er  Comstock,. 
J. ;  Lercii  v.  Dioight,  10  Conn.  95;  Slate  v.  Way- 
man,  2  Gill  &  J.  254;  Harris  v.  Clap.  1  Mass. 
308-  Judge  of  Probate  v.  Heydwh;  8  N.  II.  491  ? 
Mayorr  anl  City  Council  of  Natchi'ochesv.  Pfd- 
mond,  28  La.  Ann.  274;  contni.'  6tcele  r.  Blake- 
more,  7  Heisk.  G3S. 

Sureties  of  a  sheriff  are  not  Kablc  for  the  pen- 
alty imposed  upon  sheriffs  by  tlic  l'<ilitical  Code, 
sec.  4179,  for  a  neglect  to  levy  upon  property. 
They  are  liable  only  for  actual  damages  sus- 
tained: Gla-fcock  V.  Ashman,  52  Cal.  493. 

An  undertaking  on  appeal,  conditioned  for 
the  payment  of  what  the  judgment  creditor  has- 
no  legal  riglit  to  receive,  is  not,  as  to  such  con- 
dition, binding  upon  tb«  sureties:  IVhitney  v, 
Allen,  21  Cal.  23*, 


■2837.    Rules  of  itderpr elation  . 

Sec.  2837.     In  interpreting  the  terras  of  a  contract  of  siiretysliip,  the  same 
rules  are  to  be  observed  as  in  the  case  of  other  contracts. 

Rationial  interpretation. — "  There  is  no  rule  same  manner  and  by  thfvsaine  rules  as  in  other 

exclusively  applicable  to  instruments  of  surety-  instruments,  and  when  the  meaning  is  ascer- 

ship  and  requiring  them  to  be  in  all  cases  in-  tained,  effect  is  to  be  given  to  it:"  Belloni  v, 

terpreted  with  stringency  and  critical  acumen  Freeborn,  G3  N.  Y.  383. 

in  favor  of  the  surety  and  against  tlie  creditor.  No  strained  construction  is  to  be  given  to  the 

■and  all  amlii^'uities  to   be  resolved  to  the  ad-  obligations  of  sureties,  and  it  is  not  pcrmisciblo 

vantage  of    the  promisor,  and    every  liability  to  go  beyond  the  fair  import  of  the  tenn:^  they 

excluded  from  operation  that  can,  by  a  strained  em[jloy  ni  order  to  fasten  upon  them  a  liabdity. 

and  refined  construction,  be  deemed  outside  of  Lut  in  resjject  to  their  contracts  the  rule  of  con- 

the  agreement.     lu  guaranties,  letters  of  credit,  struction  obtains  which  accords  a  rational  in- 

■and   other   obligations  of   sureties,  tlie   terms  terpretation  to  the  language  of  their  agreements 

used  and  the  language  employed  are  to  have  a  so  as  to  reach  the  meaning  whicli  tlie   terms 

reasonable  interpretation,  according  to  the  in-  used  denote:  People  v.  Breyfogle,  17  Cal.  508. 


tent  of  the  parties,  as  disclosed  by  the  instru- 
ment, read  in  the  light  of  surrounding  circum- 
stances and  the  purposes  for  which  it  was  made. 
If  the  surety  has  left  anything  ambiguous  in 
his  expressions,  tlic  ambiguity  sliould  be  taken 
tnost  strongly  against  him.  This  certainly 
should  be  the  rule  to  the  extent  that  the  cred- 


For  the  later  l^cw  York  cases  discussing  this 
subject,  see  Griffiths  v.  Harde.  berg/i,  41  N.  Y. 
4G4;  Hamilton  v.  Van  lieusselaer,  43  Id.  244; 
Jileliclc  v.  Knox,  44  Id.  677;  Matter  of  Y.  V. 
Central  R.  Co.,  49  Id.  414;  Western N.  Y.  Life 
Ins.  Co.  V.  (^Hilton,  GGId.  320. 

Matter  of  law  for  the  court,  the  construction 


itor  has  in  gootl  faith  acted  upon  and  given     of  a  guaranty  is:  Belly.  Bruen,   1  How.    1G9; 


credit  to  the  suppo<=ed  intent  of  tlie  surety.  He 
i.s  not  liable  on  an  implied  engagement,  and  his 
obli^'ation  cannot  be  extended  i)y  construction 
or  implication  beyond  tlie  jirecise  terms  of  the 
instrument  by  which  he  has  become  surety. 
I'ut  in  such  instruments  the  meaning  of  the 
written  language  is  to   be  ascertained  in   the 


Lawrcnre  v.  McCidmont,  2  Id.  4.0. 

Les  loci. —If  the  contract  is  written  in  this 
country,  ami  addressed  to  a  person  in  another 
country,  it  will  be  construed  according  to  the 
laws  of  the  latter  country:  Btll  v.  Bruen,  1 
How.  IGl. 


2S38.  Judjment  against  sureti/  does  not  alter  the  relation. 

Sec.  2838.     Notwithstanding  the  recovery  of  judgment  by  a  creditor  against 
a  surety,  the  hxtter  still  occupies  the  relation  of  surety. 


Judgment  asalnst  surety  does  not  alter 
relation. — Weight  of  authority  and  decided 
majoi-ity  of  decisions  are  in  favor  of  this  rule: 


Brandt  Guar.  &  Sur.,  sec.  27.  "To  give  time 
or  to  discharge  the  principal  after  judgment 
would  be  aa  injurious  to  the  surety  aa  before 


judgment.  In  either  case  the  injury  is  the 
same,  and  why  not  have  the  same  i)rotection?" 
Trotter  v.  Strong,  63  111.  272,  per  Walker,  J. 

Tiine  gicen. — After  joint  judgment  against 
principal  and  surety,  the  surety  will  ,,be  dis- 
charged by  time  given  the  principal,  by  means 

4S0 


TITLB  XIII,  Chap.  II.]  SUPwETYSHlP.  §§  2S39-2S45 

of    a  binding    contract:  Storms  v.    Thorn,  3  But  if  the  time  for  which   the  execution  is 

Barb.  314;  Blazer  v.  Bundy,   1.5  Ohio  St.   57;  staj'ed  does  not  exceed  that  in  which  juil;;nient 

Car/ieiiler  v.  Devon,  6  Ala.  71S;  Crawford  v.  could    have  been   obtained    by   the   ()i<liuary 

GauUli'n,  33  Ga.    173;  Calliham  v.    Tanner,  3  course,  it  has  been  held  that  the  surety  will 

Rob.  (La.) '290;  A7;/W?rt  V.  £'»//;;cs,  24  Tex.  383;  not   be    dischar;=;ed:    Ferguson  v.   Childress,  9 

eee  also  jJruke  v.  ^mylhc,  44  Iowa,  410.  Humph.  382;  Fletcher  v.  Gamble,  3  Ala.  335; 

Stay  of  execution. — If  the  creditor  take  from  Snydam  v.   Vance,   2  McLean,   99;    Barker  v. 

the  principal  u  confession  of  judgment  under  a  McCture,  2  Blackf.  14. 

8ti|mlation   in    writing,  mado   a   part  of    the  Where   judgment   is   rendered   against    the 

judgment,  which  jirovidea  that  such  judgment  sureties,   but  t!ie  princip;.!  is  afterwunls  dis- 

ehall  bi3  paid  in  uiontlily  installments,  and  that  cliarged  on  trial  or  appeal,  the  sureties  are  dis- 

no  execution  shall   be  issued  except  for  such  cliarged:  Ames  v.  Mactaij,  14  Iowa,  2Si;  Beall 

monih'y  instaHments  as  tliey  become  due  and  v.  Cochran,  18  Ga.  3S;  sec  also  Miller  v.  Gas- 

unpaid,   tlio   f-ureties   not  consenting  to  such  hiiix^  1  8mcd.  &  M.  Ch.  524. 

agreement  wi'.l  be  discharged:  Fordyce  v.  Ellis,  If  creditor  releases  levy  on  property  of  prin- 

29  Cal.  90.     And  generally  a  stay  of  execution  cipal,   and  tal^es  from   principal  a   Ijond  and 

for  a  definite  time,  or  a  binding  agi'eemcnt  for  mortgage  in  payment  of  the  debt,  the  .surety  is 

such  stay,  will  discharge  the  sui'ety:    Wii/cfite  discharged:  La  Farge  \.  llcrter,  11  Barb.  159. 

V.   Wdson,  r),")  Iiul.  7S;   Slate  v.   Hammond,  G  The  same  rule  prevails  where  sepai-ate  juilg- 

Gill  &  J.    157;    Ward  v.  Johnson,  G  iMunf.  G;  ments  are  recovered  against  the  jtrincipal  and 

Cli]>p'i'jer  v.  Creps,  2  \Vatts,  45;  Bankof  Steu-  surety:  J\lannficturf'r<'  <t  M.  Bank  v.  Bank  of 

henjicld  v.  Leavitt,  5  Ohio,  208.  Penn.,  7  Watts  &  S.  335. 

2839.  Surety  exonerated  by  performance  or  offer  of  performance. 

Sec.  2839.     Performance  of  the  principal  obligation,  or  an  offer  of  Bucb  peiv- 
formance,  duly  made  as  provided  in  this  code,  exonerates  a  surety.     \AnencU 
meiit,  approved  March  30,  1874;  Amendments  ISTS-^,  260;  look  effect  July  1, 
1874.] 

Performance  discharging  surety.— The  surety  he  ought  to  do  so."  The  principal  obli- 
amendment  of  July  1,  1874,  introluced  the  gatioa  having  been  once  paid  cannot  be  revived 
clause  "as  provided  in  tiiis  code"  in  place  of  so  as  to  biml  the  surety:  Capitcd  Saeinjs  Bank 
the  clause  "whether  by  the  principal  or  I)yan-     v.  /,'eel,  Q2  Cal.  419. 

other  jerson,"  of  wjiich  latter  clause  the  code         Tender  by  ths  principal  need  no*',  be  paid 
commissioners   said:    "This   rule   seems   just,     into  court  or  kept  goml:  Curiae  v.  Packard,  29' 
though  not  fully  supported  by  any  express  de-     Cal.  194;  see  also  l/a;/i's  v.  Josephl,  2l5  Id.  535. 
cision.     As  between  the  creditor  and  the  prin-         As  provided  in  this  code:  See  sees.  148<i- 
cipal  debtor,  the  former  is  not  boitnd  to  accept     1505,  ante. 
payment  from  a  stranger,  but  as  respects  the 

2840.  Surely  discharged  by  certain  acts  of  the  creditors. 
Sec.  2840.     A  surety  is  exonerated: 

1.  In  like  manner  with  a  guarantor; 

2.  To  the  extent  to  which  he  is  j^rejudiced  by  any  act  of  the  creditor  whicb 
would  naturally  prove  injurious  to  the  remedies  of  the  surety  or  inconsistent 
•with  his  rights,  or  which  lessens  his  security';  or, 

3.  To  the  extent  to  which  he  is  prejudiced  by  an  omission  of  the  creditor  to 
do  anything,  when  required  by  the  surety,  which  it  is  his  duty  to  do. 

Exonerating  surety.— Subd.  1.     See  sec.  Belhanew  Duzier,  \QV,a..2:^o',  Rowanw  Shnrp''» 

2819,  and  note.  liiile  Mfj.  Co.,  3;{  Conn.  1;  see  Atiniia  NaU 

Subd.  2.     Any  material  alteration  iu  the  B'k  v.  Von-jlas,  51  (ia.  '20o;  Uahii  v.  Xienice* 

contract,  even  though  tlie  change  may  be  for  wirz,  II  Wend.  312. 

the  beuelit  of  the  surety,  will  cxoncrafco  him:  Gubd.  3;  iSco  sec.  2845,  and  note. 

AETICLE  III. 

EiaUTS    OF    SUUETIE3. 

2844.  Surety  has  rights  of  guarantor. 

Sec.  2844.     A  surety  has  all  the  rights  of  a  guarantor,  Avhether  he  becomes 
personally  responsible  or  not. 
See  sees.  2808-1810. 

2845.  Surety  may  require  creditor  to  proceed  against  principal. 

Sec.  2845.     A  surety  may  require  his  creditor  to  proceed  against  the  princi- 
pal, or  to  pursue  any  other  remedy  in  his  power  which  the  surety  cannot  linu- 
self  pursue,  and  which  would  lighten  his  burden;  and  if  iu  such  case  the  cred- 
Civ.  Code— 31  481 


§§  2846,  2347 


OBLIGATIONS. 


[Div.  ni,  Fakt  it, 


itor  neglects  to  do  so,  the  surety  is  exonerated  to  the  extent  to  which  he  is 
thereby  ^)rejudiced. 

V.  RfMe  Bank,  7  Ark.  394;  Lockridgp.  v.  Upton, 

24  Mo.   1S4;  Parrish  v.  Grm/,   1  Humph.  88; 

Kaufman  v.  Wilnon,  29  Ind,  504;  see  Baker  v. 

Kdlo<]f],  29  Ohio  St.  003;    Fender  v.  P rather, 


Requiring  creditor  to  sue.— Tho  New- 
York  rule  ia  thu  snnie  as  that  stated  in  the 
above  section.  Some  of  the  other  states  have 
nob  adopted  it.     It  is  well  settled  in  New  York. 

that  the  surety,  while  the  principal  is  solvent     43  Ind.  119.     Nothinj:;  short  of  a  request  that 
and  can  be  made  to  pay  the  debt,  may  require     the  debt  be  enforced  or  collected  liy  (lue  course 


of  the  creditor  that  lie  collect  it  of  the  prin 
cipal;  and  if  the  creditor  refuses  or  neglects  to 
do  so,  and  the  principal  becomes  insolvent  and 
unable  to  pay,  the  creditor  may  not  then  have 
his  debt  of  the  surety:  KukJ  v.  Balilwui,  1? 
Johns.  3S4;  liemsen  v.  Biekman,  25  N.  Y.  552; 
Maiiclirstcr  Iron  Co.  v.  Sirreting,  10  Wend. 
162;  Coin  rove  v.  Talhnan,  G7  N.  Y.  95.  And 
this  doctrine  of  the  New  York  courts  is  not 
extended  to  the  kindred  contracts  of  guaranty 
and  indorsement:  Wi-lls  v.  Mann,  45  Id.  327; 
Bee  puts  V.  Congdon,  2  Id.  332;  Trimble  v. 
Thorn,  10  Johns.  151. 
Piior  to  the  code  the  rule  in  this  state 


of  law  will  sulhce:  Griodinn  v.  Simoii-son,  74  N. 
Y.  \'■V^•,  Singpr  V.  Trout  man,  49  lift  rl).  182. 

Technical  acrurncy,  sucli  as  describing  the 
note,  is  not  required;  it  is  suthcient  if  the  no- 
tice is  positive,  and  the  creditor  is  not  misled: 
Ponton  V.  Lacy,  17  Mo.  399;  see  also  DenKonv. 
Miller,  33  Ga.  275;  Stevens  v.  Campbelt,  6  Iowa, 
533. 

Diligence  in  prosecuting  suit. — Where  the 
statute  provided  that  suit  should  be  instituted 
within  reasonable  time  after  notice,  a  delay  of 
fourteen  months  before  (h)ing  so  was  held  to  te 
unreasonable:  Boot  v.  Dill,  38  Ind.  109. 

Where  the  creditor  brourfjit  suit  atrainst  the 


was,  tliat  if  a  surety  desired  to  protect  himself  principal  pui'suant  to  notice  from   the  surety, 

i  fee  must  pay  the  debt  and  ])roceed  against  the  but  did  not  prosecute  it  with  due  diligence, 

principal,  or  apply  to  a  court  of  c(juity  to  coin-  held    the    surety   was   discharged:    Peters   v. 

pel  tlie  holder  to  proceed  against  the  principal.  Linensrhm/dt,  58  Mo.  404.     Such  statutes  usu- 

The  failure  of  the  holder  of  a  note  to  sue,  when  ally  prescribe  the  time  within  which  suit  should 

requested  by  a  surety,  was  held  not  to  operate  be  li'-ought. 

as  a  discharge  of  the  liability  of  the  latter:  "Where  the  surety  ia  indemnified  it  has 

JJarinian  v,  Burlingame,  9  Cal.  5-39;   Dane  v.  been  held  that  he  cannot  avail  himself  of  the 


statute,  which  is  for  his  benefit  when  delay  iu 
suing  might  prove  hazardous:  IFt.'.swt  v.  Tcb- 
belts,  29  Ark.  579;  see  Bailey  v.  New,  29  Ga. 
214. 

uischarge    of    one    surety    affects    the 
ethers,  how. — It  has  been  held  that  all  would 


■  Cord  nan,  24  Id.  165;  J  f ayes  v.  Jose  phi,  26  Id. 

543;  see  Whiting  v.  Clark,  17  Id.  407;  and  such 

is  the  tenor  of  the  great  majority  of  the  decis- 
;  ions,   in   the   absence   of  statutory   provision: 

Brandt  Guar.  &  Sur.,  sec.  208. 

Mere  delay  by  the  creditor  to  pursue  the 

principal  does  not  .discharge  the  surety,  is  the     be  discharged:  Jones  v.   Whitehead,  4  Ga.  397; 

rule  recognized  by  section  2823;  see  sec.  2840,      Wriffht's  Adm'rv.  Stocton,  5  Leigh,  153;  Tovma 

8ubd.  1.  °  V.  Riddle,  2  Ala.  694. 

Notice. — No  notice  need  be  given  the  cred-         But  where  the  statute  provided  that  "the 

itor  of  any  fact  suggesting  the  probability  that    surety  who  shall  have  given  such  notice  shall 

delay  could  prove  injurious  to  tlue  surety:  Pern-    be  discharged  from  liabdity,"  it  was  held  that 


sen  V.  Beekman,  25  N.  Y.  552. 

The  notice  to  sue  must  be  a  positive  demand 
to  bring  suit;  a  mere  expression  of  the  surety's 
desire  is  not  sufHcient:  Savage  v.  Carleton,  33 
Ala.  443;  Bethnne  v.  Dozler,  10  Ga.  235.  And 
a  d.'c'.aration  that  the  surety  will  not  stand  se- 
curity any  longer,  or  a  recjuest  to  collect  the 
note,  is  not  a  sutiicieut  requisition  to  sue:  Bales 


his  discharge  did  not  affect  the  liability  of  the 
surety  who  gave  no  notice:  Pamey  v.  Purvis, 
38  Miss.  499;  see  Wilson  v.  Tebbttts,  29  Ark. 
579. 

See,  generally,  Brandt  Guar.  &  Sur.,  sees. 
286,  2S7,  503-512;  llemstrail  v.  Watkins,  42 
Am.  Dec.  696,  and  note;  Cope  v.  Smith,  11  Id. 
582,  and  note  589. 


2846.    Surcf>j  may  compel  principal,  etc. 

Sec.  28-iG.     A  surety  may  compel  his  principal  to  perform  the  obligation 
when  due. 


the  creditor  to  sue,  and  it  may  be  doubted 
MJietlier  any  other  action  by  the  surety  against 
tlie  creditor  is  alloweil  in  our  state."  Section 
2845,  ante,  may  be  considered  as  containing 
another  substitute  for  tlie  eciuitable  ai^tion. 


The  action  under  this  section  is  provided 
for  in  section  1050,  Code  of  Civil  I'rocedure.  Iu 
Dane  v.  Cordaan,  2i  Cal.  165,  the  court  said: 
"The  action  contemplated  by  this  section  [sec. 
1050,  sujva]  was  doubtless  intended  as  a  substi- 
tute for  the  proceeding  in  chancery  to  compel 

2847.    A  principal  bound  to  reimburse  his  surety. 

Sec.  2847.     If  a  surety  satisfies  the  principal  obligation,  or  any  part  thereof, 

■whether  with  or  without  legal  proceedings,  the  principal  is  bound  to  reimburse 

what  he  has  disbursed,  including  necessary  costs  and  expenses;  but  the  surety 

has  no  claim  for  reimbursement  against  other  persons,  though  they  may  have 

been  benefited  by  his  act,  except  as  prescribed  by  the  next  section. 

Any  part  thereof. — If  the  surety  pays  dif-  when  he  pays  it.  This  is  not  making  several 
ferent  parts  of  the  debt  at  different  times  he  claims  of  one,  because  the  del)t  due  the  cred- 
may  sue  the  principal  for  each  iustallment    itor  is  not  the  surety's  cause  of  action;  but  the 

482 


Title  XIII,  Chap.  II.] 


SURETYSHIP. 


§2343 


payment  which  he  has  made  for  the  pnncipal 
IS  his  cause  of  action,  ami  it  is  complete  the 
insuuit  he  makes  the  j  ayment:  Bullock  v. 
Cnniiib.n,  <)  Gill,  182;  llUbainx  v.  Williams, 
5  Ohio,  444;  I'irkct  v.  Baici',  3  La.  Ann.  (Vll. 

Unless  he  became  tiurety  at  the  request 
of  the  pr:!nc3pal,  a  surety  cannot  oiilinar;!y 
rico\tr  iiidcmaity  from  tlie  principal,  there 
l:ein^  no  implied  promise  to  that  ellcct:  Ex'rs 
of  While  V.  Whilp,  .SO  Vt.  33S;  iMrPhrr^ou  v. 
ihVr/-,  ;50  Mo.  .';45;  Carter  v.  JJlucL;  4  Dev.  & 
B.  L.  4->3;  J  J  ill  V.  U'rlijht,  23  Ark.  530;  and  see 
definition  of  srrety  in  sec.  2S3I. 

Cau  recover  only  the  amount  disbursed. 
If  he  cMlinguisIjes  the  debt  for  a  sum  less  than 
the  full  amount  tiiereof,  he  recovers  only  tiie 
amount  paid:  Baton  v.  Lurnbirt,  1  Neb.  339; 
Co'i.ieshad  V.  Hiiij'jlrs,  02  111.  401;  Crozicr  v. 
Gj-ui/fon,  4  J.  J.  Marsh.  514;  B/ow  v.  iMai/- 
nard,  2  Leigh,  29;  and  the  interest  thereon: 
IH(k'<  V.  iJui'ey,  10  Tex.  229;  AlUen  v.  Bacon, 
4  J.  J.  Marsh.  457. 

//■  he  iiaJjii  ill  land,  lie  can  only  recover  the 
value  of  tiie  land:  Bonacy  v.  Seelij,  2  Wend. 

2848.    The  surety  acquires  the  right  of  the  creditor. 

Sec.  2848.  A  surety,  upon  satisf^ying  the  obligation  of  tbe  principal,  is  enti- 
tled to  enforce  every  remedy  which  the  creditor  then  has  agaiust  the  principal 
to  the  extent  of  reimbursing  what  he  has  expended,  and  also  to  require  all  his 
co-sureties  to  contribute  thereto,  without  regard  to  the  order  of  time  in  which, 
they  became  such. 

Subrogation,  who  entitled  to. — A  mere  all  parties  thereto  for  the  purpose  of  enforcing 
stranger  or  volunteer  who  pays  a  debt  cannot  tlie  rights  of  the  sui-ety,  and  it  will  be  presumed 
be  subrogated  to  the  creditor's  rights:  llon<jh     tliat  it  was  the  intention  of  the  surety  to  keep 


4S1 ;  see  also  Jordan,  AdmW,  v.  Adamx,  7  Ark. 
348.  And  generally,  this  is  an  action  of  in- 
demnity, the  surety  recovt-ing  only  actual 
loss:  hcale  v.  Neicland,  38  Am.  Dec.  42,  and 
note  44. 

Costs. — If  the  surety  incurs  expenses  in  de- 
fending a  suit  on  a  note  contrary  to  the  express 
wishes  of  his  principal,  and  alter  he  has  lieon 
notilied  tliat  there  is  no  <lefeuse,  he  cannot  re- 
cover costs  disbursed:  BrcLi'y  v.  Jihtnxnn,  22 
Cuun.  299;  except  those  of  judgment  by  ile- 
fault:  Jlolmex  v.  IIVc'(/,  24  Bar!).  540;  see  Hal- 
ficld  V.  JJalijhl,  27  Conn.  31;  Whilicorlh  v. 
Tdnian,  40  Miss.  70. 

Ai'ce.s.sari/  conln  and  expenses  do  not  include 
remote  and  couserpiential  damages  sustained 
by  tlie  surety,  such  as  the  sacriiico  of  property 
fur  the  I'urpose  of  meeting  his  liability,  loss  of 
time,  injury  to  business,  expenses  incuried  in 
seeking  to  avoid  payment,  and  the  like:  Thoinp- 
son  V.  Taylor,  I'l  N.  Y.  32;  llayden  v.  L'(diot, 
17  Mass.  109;  Wynn  v.  Brook,  5  Ilawle,  100; 
Bniery  v.  Viuall,  20  Mc.  295.. 


V.  yL/i/a  L/J'e  Ins.  Co.,  57  LI.  318;  Ji'lchniond  v. 
Jilars'on,  15  Ind.  134;  i'oc  v.  New  Jersey  Mid- 
land B.  Co.,  '21  N.  J.  Eq.  110;  Cri£in  "v.  Ur- 
rrtan,  9  Fla.  22;  Winder  v.  Bijj'endeijer,  2  Dland. 
Ch.  100. 

A  suiety  who  becomes  such  at  the  request  of 
the  creditor,  and  without  aliy  i'e(juest  from  the 
pnncipal,  is  entitled  to  subrogation:  Maltliews 
V.  Ail.in,  I  N.  Y.  595. 

Dnt-l  the  creditor  is  fully  satisfied 
whetlicr  the  debt  has  been  vvhoily  paid  by 
the  suivty  or  not,  there  cannot  usually  l)e  any 
interference  with  his  rights  or  his  securities 
whicii  might  prejudice  or  embarrass  him  in  any 
way  in  the  coUeetion  of  the  resitlue  of  the  claim : 
Ilayee  v.  Leijijelt,  48  Miss.  1,S9;  Bank  of  Peiin- 
tylvuiiia  v.  I'otiux,  10  Watts,  148;  Siran  v. 
I'allvrxon,  7  Md.  104;  Oanvi'tt  v.  Blod>/c!t,  39 
K.  H.  150;  see  City  of  KeuLuk  v.  Bon\  31  iowa, 
119;  and  coidra:  Wdiianis  v.  Tipton,  5  liumph. 
CO. 

Surety  must  sustain  ac+ual  loss. — Siibro- 


the  judgment  alive,  so  that  he  may  be  subio- 
gated  to  the  creditor's  rights  tliereundcr:  2scil- 
aon  v.  Fry,  10  Ohio  St.  552;  Bddy  v.  Traver, 
0  Paige  Ch.  521;  Udl  v.  Manser,  11  Gratt. 
522;  Mcnymuii  v.  Slate,  5  Har.  &  J.  423; 
Richler  v.  CummiiKjx,  00  I'a.  St.  441;  see  Code 
Civ.  Proc,  sec.  1059.  Paj'ment  of  a  portion  of 
tlie  judgment  by  surety  does  not  operate  as  au 
assignment  thereof:  McDrrniotl  v.  Mitchell,  53 
Cal.  Oi7;  see  also  Poll  v.  Xalhans,  37  Am.  Dec. 
450,  and  note. 

Contribution Neither  notice  of  the  satis- 
faction of  the  principal  obligation  nor  demand 
for  contribution  is  required  before  commencing 
au  action  fur  contribution.  Tlie  last  portion  of 
section  2S4S,  whicli  provides  that  the  surety, 
having  satislied  the  obligation  of  the  principal, 
is  al.so  entitled  '"to  recjuire  all  his  co-sureties 
to  contribute,"  etc.,  evi.lently  means  that  the 
surety  may  compel  his  co-sui-eties  to  contrib- 
ute. Tlieic  is  nothing  in  sections  2845  to 2848, 
xiijira,  wliicli    makes  the  liability  of   the  eo- 


gation  will  not  be  allowed  when  the  surety  who     surety  to  contribution  depend  upon  the  insol- 


lias  paid  is  indebted  to  tlie  priiici[ial  in  more 
than  the  amount  of  tiie  debt,  nor  wiieu  the 
party  claiming  it  has,  in  fact,  l>c-en  reimbursed, 
and  has  sustained  no  loss:  JJlrakley's  Ajij/cal, 
CO  Pa.  St.  187;  Avert/  v.  J'elten,  7  Johns.  Ch. 
211;  i1/rt.vo7i  V.  Lord,  20  i'ick.  447,  449;  Baz- 
zelCs  Advir  v.  White,  13  Ala.  422;  Baton,  v. 
JIasty,  0  Neb.  419. 

Keeping  alive  judgment.— If  nothing  ap- 
pears as  to  the  intent  with  whiuli  the  suixty 
pays  the  amount  of  tiie  judgment,  the  bett.i-r 
opinion  seems  to  be  that  tiie  judgment  is  dis- 
charged so  far  as  any  benefits  which  tlie  cred- 
itor might  otherwise  j personally  derive  theie- 
from  is  coucerned,  but  is  kept  alive  as  between 


veney  of  the  principal:  'Taylor  v.  Reyuold.t.  53 
Cal.  087,  GS9;  see  Morrison  v.  Poyiitz,  32  Am. 
Dec.  92,  and  note  94. 

Although  bound  by  separate  instru- 
ments, if  the  lial)ility  is  the  same,  the  sureties 
will  be  liable  to  contribution:  Powtll  v.  Pom  II, 
48  Cal.  2:54;  Woodworlh  v.  Boicex,  5  hul.  270; 
Brfckinridi/e  v.  Taylor,  5  Dana,  110;  J/arrison 
V.  L'ljie,  27  Am.  Dec.  007;  Armilaije.  v.  Puller, 
37  N.  Y.  494. 

Equitable  rule  of  contribution — In  case 
some  of  the  sureties  are  insolvent,  the  paying 
surely  should  seek  contribuiion  in  e(juity,  and 
may  bring  suit  against  tlie  solvent  sureties  only: 
Biirioujhs  V.   Lott,  19  Cal.  120;   when,  upon 

48a 


§§  2S49-2854 


OBLIGATIOXS. 


[DiV.  Ill,  PAIiT  IV, 


proof  of  tlie  insolvency,  tlio  court,  exercising 
its  authority  in  accordance  witli  the  maxim, 
"Equality  is  equity,"  will  decree  us  coiitribu- 
tion  from  his  solvent  co-ynreties  a  ]iro  rata 
amount  of  the  sum  paid  \<y  Lim,  based  upon 
the  number  of  solvent  co-sureties,  and  cxclud- 
in;^  tlie  insolveut  ones:  Ea  terly  v.  Barber,  GO 
N.  Y.  433,  430;  Powe.l  v.  Matl/'/h,  4  lied.  L.  S3; 
YdUi)'/  V.  Lyo)i!<,  8  Gill,  1G2;  Klein  v.  Mather, 
2  Giim.  3l'7;  Yoiaig  v.  Clark,  2  Ala.  2G4; 
JjrecLinrulge  v.  Tai/lor,  5  Dana,  110;  IStory's 
Eq.  Jur.,  sec,  4G'J;  IJaylies  Sur.  &  Guar.  33S. 
Joinder    of   executor. — Executor    of    de- 


ceased co-surety  may  be  joined  as  iilaintilT  with 
a  ))art  of  the  .sureties  in  an  action  a;.'a!nst  an- 
other for  contribution,  provided  plaintitTa 
jointly  paid  the  money:  Dusaol  v.  Jiniijuiere, 
50  Cal.  4.:)G. 

Rscoverins  full  amount  from  co-surety. 
Wliere  a  co-surety  fails  to  apply  money  to  the 
discharge  of  tlie  oldigation,  he  liold:ng  the 
money  lor  that  purpose,  and  a  surety  is  obliged 
to  pay  the  full  amount,  he  may  recover  it  all 
from  the  co-surety  as  money  paid  to  his  use: 
Lo(jaii  V.  Talbot,  59  Cal.  052. 


2849.   Surety  enlitled  to  benefit  of  secui^iiies  held  by  creditor. 

Sec.  2849.  A  surety  is  entitled  to  the  benefit  of  every  security  for  tbc  per- 
formance of  the  principal  oLligatiou  held  by  the  creditor,  or  by  a  co-surety  at 
the  time  of  entering  into  the  contract  of  suretyship,  or  acquired  by  him  after- 
wards, whether  the  surety  was  aware  of  the  security  or  not. 

The  general  rule  regaiding  indemnity  taken  After  the  debt  of  the  principal  is  paid 
by  a  surety  is  thus  stated  by  Brandt  Guar.  &     by  sevei'al  sureties,  each  paying  his  proportion, 


Sur.,  sec.  233:  "If  one  of  several  sureties, 
after  all  have  signed,  and  before  the  debt  has 
been  paid,  and  without  any  agreement  to  that 
effect  before  he  became  liable,  obtains  fi'Oiu  the 
princi|jal  anything  for  his  indemnity,  such  in- 
demnity inures  to  the  benefit  of  all  the  sure- 
ties, and  the  surety  obtaining  it  inmiedJately 
becomes  the  trustee  of  it  for  the  benefit  of  all 
the  sureties,  even  thoug'.i  he  obtained  it  by  his 
own  exertions  and  it  was  intended  for  his  sole 
benefit:"  Sec  Seiberl  v.  Thomjjson,  8  Kan.  03; 
Steele  v.  Meat  lug,  24  Ala.  283;  Miiler  v.  Saw- 
yer, 30  Vt.  412;  MeL'wis  v.  F(rijiition,  5  The 
Kep.  330;  McCinie  v.  Udf,  43  Mo.  174;  Hurt- 
Well  V.  Whitman,  30  Ala.  712;  Smith  v.  Conrad, 
ir>  La.  Ann.  579;  Hitiaill  v.  Murray,  0  Vt.  130; 
Leary  v.  ChisUire,  3  Jones  Eq.  170;  Low  v. 
Smart,  5  N.  II.  333. 

Eut  if,  as  a  condition  precedent  to  liis 
becoming  surety,  iudemnity  be  taken  by  a 
surety,  his  co-sureties  are  not  entitled  to  the 
benefit  of  it  untilaf  ter  he  for  whose  benefit  it  was 
given  is  fully  repaid.  This  exception  is  re- 
served in  the  above  definition:  Moure  w  Moore, 
15  Am.  Dec.  523,  and  note  520;  IJall  v.  Kob- 
inaon,  8  Ired.  30;  note  to  Derimj  v.  Earl  of 
Winchelaea,  1  Lead.  Cases  in  Ec£.,  4th  ed.,  171. 

2350.    Tlie  property  of  principal  to  be  taken  first. 

Sec  2850.     Whenever  property  of  a  suretj'  is  hypothecated  with  property  of 

the  principal,  the  surety  is  entitled  to  have  the  property  of  the  principal  first 

applied  to  the  discharge  of  the  obligation. 

So  where  principal  and  surety  have  both  501 ;  Jamea  v,  Jacques,  20  Tex.  320.  For  an  ex- 
mortgaged  propsrty:  Xtemcewicz  v.  Uahn,  3  plauation  of  the  use  of  the  word  "liypothe- 
Paige  Ch.  014;    VarLie  v.  Uhderwood,  18  Baib.     cated,"  see  note  to  sec.  2920t 


the  equities  betA-eeu  them  as  co-suretie.j  cease, 
and  each  becomes  an  indepemlent  creditor  of 
the  principal  for  the  amount  paid  by  him.  In 
sujh  case,  if  one  afterwards  receives imleinnity 
from  the  principal  the  others  are  entitled  to 
no  part  thereof:  Mesner  v.  Swan,  4  N.  II.  481; 
Jiarrhion  v.  PhiUi/is,  40  Mo.  520;  Allen  v. 
Wooil,  3  Ired.  Eq.  380;  JIall  v.  Cnshinan,  43 
Am.  Dec.  502,  and  note;  see  Gould  v.  Fuller, 
18  Me.  304.  This  exception  is  also  reserved  in 
the  above  definition. 

Security  held  by  the  creditor. — This  is 
a  mere  repetition  of  what  is  embraced  in  the 
first  clause  of  the  preceding  section:  See  note, 
"  Subrogation,"  under  sec.  2848,  supra. 

If  tlie  maher  of  a  promissory  note  assigna 
collateral  .security  for  its  payment  to  tiie  payoj, 
the  liability  of  the  sureties  becomes  fixed  ut  t'.o 
time  the  co. lateral  security  is  exhausted:  Eus- 
sol  V.  Brwjuiere,  50  Cal.  430.  Certain  jieculiar 
language  was  here  used,  upon  which  tiie  court 
based  its  decision:  Id.  439.  Such  is  not  the 
general  rule:  brandt  Guar.  &  Sur.,  sees.  204, 
120.       . 

Security  held  by  co-surety:  See  note  to 
Had  V.  Cushmau,  43  Am.  Dec.  503. 


ARTICLE  IV. 

lUGUTS    OF   CKEDITOnS. 

2854.    Creditor  entitled  to  benefit  (fsecurilies  held  by  mrety. 

Sec.  2854.  A  creditor  is  entitled  to  the  benefit  of  everything  which  a  surety 
has  received  from  the  debtor  by  way  oi  security  for  the  performance  of  the  obli- 
gation, and  may,  upon  the  maturity  of  the  obligation,  compel  the  application 
of  such  security  to  its  satisfaction. 

Securities  held  by  surety:  See  Brandt  indemnity  given  the  surety  unless  tlie  surety 
G\iar.  &  Sur.,  sec.  282,  283.  could  have  done  so.     If  the  surety  has  not  l)een 

The  credito*-  (sauuot  ^vail  himself  of  personal     damnified,  and  the  conditions  of  the  mortgage 

484 


TirLF.  XIII,  CuAP.  IL]  SURETYSHIP.  §§2858-2862 

or  other  contrcact  of  indemnity  are  unbroken,  Watson  v.  7?o.?e's  Ex'th,  51  Ala.  232;  O'ao  Life 

the   creditor   is   not   entitled    to   subrogation:  Ins.  <C-  Trufit  Co.  v.  Rieder,  IS  Ohio,  33. 

Osbo/ii.  V.  Xohle,  40  Miss.  449;  Iloim r  v.  >av-  A.icer  dischargs  of  surety,  creditor  has  no 

iiigs  Ikiiik,  7  Conn.  478;  Van  Orden  v.  Durliam,  ric^ht  to  enforce  inilenjnil.y  given  to  tlie  surety, 

35  ('al.    l.'JG,   holding  in  ellect  that  a  creditor  the  surety  himself  not  having  this  power:  Con- 

•whose  debt  is  extinguished  is  not  entitled  to  stcnit  v.    Mat/e.soii,    22  111.    540;  llusxeU  v.  La 

subrogation  to  indeuuiiLy  of  surety;  and  that  Hoqiie,  13  Ala.  149;  Havens  v.  Fuudr>j,A^lc\.c. 

wiiero  the  creditor  holds  security  for  his  debt  (Ky. )    247;  Bunk  of   I'ir'jinla   v.   Jioi.isean,    12 

he  is  not  entitled  to  appropriate  both  this  seen-  Leigh,    387;   see  Itankia  v.    Wilsey,  17   Iowa, 

rity  and  the  surety's  indemnity  simultaneously;  403. 

ARTICLE  V. 

LETTER    OF    CREDIT. 

2853,   Lf'ttei'  of  credU,  lohat. 

Sec.  2858.  A  letter  of  credit  is  a  written  instrument,  addressed  by  one  per- 
son to  another,  requesting  the  latter  to  give  credit  to  the  jDerson  in  whose 
favor  it  is  drawn. 

Request.  —  Ordinarily    no    request    is   ex-  is  in  itself  an  implied  request  that  the  act  be 

]ireyacd  in  terms  in  the  letter  of  credit,  but  the  done  upon  whicli  the  wnter  buses  his  promise: 

prouuse  of  tlie  writer  to  do  an  act  in  consider-  Baylies  Guar.  &  Sur.  10. 
iitloa  of  some  act  to  be  doue  by  the  promisee 

2859.    IIoiv  addressed. 

Sec.  2859.  A  letter  of  credit  may  be  addressed  to  several  persons  in  suc- 
cession. 

2SC0.    Liability  of  (he  lorlter. 

Sec.  2^C0.     The  writer  of  a  letter  of  credit  is,  upon  the  default  of  the  debtor, 

liable  to  those  who  gave  credit  in  compliance  with  its  terms. 

Compliance   witli  ils   terms.— Letters  of  to  accept  such  as  may  1)6  drawn  in  good  faith 

cred.t  are  f^^ccial  contracts,  and  are  not  nego-  and  wiihin  the  limits  of  the  creditor  deposit 

tiable  in  a  legal  sense;    nor  are  they  to  be  con-  specified:    lioman  v.  >Serna,  40  Te.x.  300;    Pol- 

Etrucd  as  actual  acceptances  of  bills  or  orders  lock  v.  Helm,  54  Miss.  1;  see  sec.  2SG0,  pO'St. 
drawn  under  them,  but  rather  as  agreements 

28C1.    Letters  of  credit  either  general  or  ftpecicd. 

Sec.  28G1.  A  letter  of  credit  is  either  general  or  special.  "WTien  the  request 
for  credit  in  a  letter  is  addressed  to  specified  persons  by  name  or  description, 
the  letter  is  special.     All  other  letters  of  credit  are  general. 

Addressed  to  a  specified  person. — Al-  prudence  and  discretion  in  acting  upon  it: 
though  tlie  letter  lie  addressed  to  one  person,  if  Darns  v.  Barrow,  01  N.  Y.  30. 
it  is  witli  the  design  that  it  be  shown  toothers  A  letter  addressed  to  a  firm  which  has  ceased 
w  hether  that  otLier  person  be  ascertained,  to  exist  will  not  authorize  a  former  member  of 
JJrvvnnond  v.  Pre-^tman ,  12  Wheat.  515,  or  it  the  linn  to  act  upon  it:  I'enoyer  \\  Watson,  10 
is  intended  as  a  general  letter  of  credit,  it  will  Johns.  100;  see  Snii/h  v.  Mout'/oriieri/,  V>  Tex. 
be  consUiicd  in  accordance  witli  the  intention  193.  Bat  a  letter  addressed  to  A.  &  B.,  l)ut  in 
of  the  guarantors,  and  when  the  prondsecs,  fact  intended  for  A.  B.  &  Co.,  may  be  acted 
reasouL.ldy  embraced  under  the  letter,  have  upon  by  the  latter:  Wad-iworth  v.  Allen,  8 
acted  upiiu  it  in  good  faich,  tlie  guarantors  will     Gratt.  174. 

hi  held  bound:  Lonsdale  v.  Lifai/eite  Bank,  IS  A  guaranty  addressed  to  a  state  bank  is  not 
Ohio,  12. i;  IJcnedict  v.  Sherrdl,  Hi.l  &  D.,  terminated  by  the  cliange  of  Ihe  domestic  cor- 
Salop's  Supp.  219;  Griffin  v.  Bembcrf,  2  Uieh.,  poration  into  a  national  b:ink,  and  l)y  the  eon- 
N.  S.,  410;  see  Lon^ry  v.  Adams,  22  Vt.  100;  sequent  change  of  tiie  name  of  the  corporation: 
Brandt  (Jnar.  &  Sur.,  wc.  9o.  Clly  Nat.  Bank  v.  Phelp",  10  Hun,  158. 

A  letter  of  credit  addressed  to  a  particular         Credit  to  correspond  witli  terms  of  tlie 
person  is  limited  to  lum;  the  writer  must  be     letter;    ISee  sec.  2S00,  post. 
deemed  to  have  granteil  it  in  reliance  on  Lis 

2862.    Nature  of  gp.ncral  letter  of  credd. 

Si:c.  28G2.  A  general  letter  of  credit  gives  any  person  to  whom  it  may  be 
shown  authority  to  compiy  wich  itct  reqaest,  and  ay  hiS  so  doing  it  becomes,  aa 
tn  him    of  the  same  '-ffec<  as  i^  addressed  to  him  by  name. 

"When  advanjes  aie  made  l>y  any  person     BirrkliraU   v.    lirriwn.,  5    hill,   6*1;   Griffin   v, 
to  whom  a  general  letti.-r  i'5  shown,  a  privity  of     lic.ni'icrl,  2  S   C.  410;  Pollock  v.  Utlm,  54  MiiiS. 
contract    immediately  arises:   Union   B'lnk   v.      I;  ICa/w/.  v.  McLaren,  19  Weud.  557;  S.   C, 
C7o.s.'''/-'.s-  Ex\-%  3  N.  Y.  20.5;  /.'(t.s,sc'//  v.  Wijftns,     '26  Weud.  425. 
2  Story,  214,  Adams  v.  Jones,   12  Pet.   207; 

4Sj 


§§  CSG3-2SC6 


OELIGATIONS. 


[Div.  Ill,  Part  IV, 


2S63.    Extent  of  gcnend  letter  of  credit. 

Sec.  28G3.  Several  persons  may  successively  give  credit  upoa  a  general 
letter. 

See  note,  sec.  28G2,  ante. 

2834.    A  letter  of  credit  may  he  a  continuing  guaranty. 

Sec.  28G4.  If  the  jDarties  to  a  letter  of  credit  appear,  by  its  terms,  to  con- 
template a  course  of  future  dealing  between  the  parties,  it  is  not  exhausted  by 
giving  a  credit,  even  to  the  amount  limited  by  the  letter,  which  is  subsequently 
reduced  or  satisfied  by  payments  made  by  the  debtor,  but  it  is  to  be  deemed  a 
continuing  guaranty. 

See  note,  sec.  2814,  ante;  Gates  v.  McKee,  13  N.  Y.  232. 

2865.    When  notice  to  the  writer  necessary. 

Sec.  2865.  The  writer  of  a  letter  of  credit  is  liable  for  credit  given  upon  it 
without  notice  to  him,  unless  its  terms  express  or  imply  the  necessity  of  giving 
notice. 


ITotice  of  acceptance  of  letter  of  credit 
The  rule  deduced  from  the  authorities  by  Mr. 
Parsons  is,  that  where  there  is  a  guaranty  for 
future  operations,  perhaps  for  one  of  uncertain 
amount,  there  should  be  a  distinct  notice  of 
acceptance:  2  Parsons  on  Cent.  13. 

Another  author  says:  "  Where  the  obligation 
attaches  to'future  transactions,  there  is  a  con- 
troversy which  remains  undetermined;  with 
t'.ie  United  States  courts,  and  those  of  one  or 
two  New  England  states  on  one  side,  and  the 
courts  cjf  England,  New  York,  and  several 
other  states  of  the  Union  on  the  other.  'Where, 
liov/cver,  the  undertaking  is  absolute  in  its 
terms,  to  pay  unless  the  principal  obligation  is 
fullilled,  and  there  is  a  limit  both  as  to  time 
and  amount,  the  weight  of  autiiority"  binds 


thing  in  the  nature  of  the  contract  or  terms  of 
the  writing  creating  or  implying  tiie  necessity 
of  acceptance  or  notice  as  a  condition  of  lialjil- 
ity,  iieichcr  are  deemed  requisite,  and  such  is 
believed  to  be  the  rule  of  the  English  courts." 
In  this  case,  it  will  be  noticed,  the  amount  was 
indefinite:  See  extract  from  Wade  on  Kouice, 
supra. 

"If  you  letA.  have  one  hundred  dollars' worth 
of  goods  on  credit  of  tiiree  months,  you  may 
regard  me  as  guaranteeing  the  same" — no  notice 
requisite:  Smith  v.  Dann,  G  Hill,  543. 

When  absolute  in  its  terms,  no  notice  requi- 
site: Union  Bank  v.  Co^tir's L'x'rs,  3  N.  V.  1.04; 
Sec  also  Dou(jl<t6s  v.  Howland,  24  Wend.  35. 

In  the  following  cases  no  notice  was  required: 
Yancey  v.   Brown,   3  Sneed,  89  (amount  not 


the  guarantor  without  notice  of  acceptance:     limited);    Carman   v.  Ellnhje,    40  Iowa,  400; 


Wade  on  Notice,  sec.  404, 

1h.e  above  sect-ou  is  in  entire  consonance 
•with  the  New  York  rule.  "  \Ve  consider  i\Ir. 
J.  V.  E.  good  for  all  he  may  want  of  you,  and 
M'e  will  indemnify  the  Fame,"  is  a  valid  instru- 
ment, binding  upon  the  guarantors,  who  are 
not  entitled  to  uoLice  of  acceptance  of  the  guar 


Chane  v.  Howard,  41  Id.  479;  Powers  v.  Bui 
cratz,  12  Ohio  St.  273;  Paige  v,  Parker,  8  Gray, 
211 ;  Maynard  v.  Jilorse,  30  Vt.  G17  (amount  nob 
determined);  see  Cooke  v.  Oi'ne,  37  111.  ISG. 

I'he  leading  United  States  cases  contra  are 
Donylass  v.  Itojjiolds,  7  Pet.  113;  Adams  v. 
Jones,   12   Id.    207,  J>er  Story,    J.;    for  other 


an ty  or  of  the  sale  and  delivery  of  the  goods  cases   cotra,  see   Baylies  Guar.    &   Sur.  196; 

under   it.     It  is  not  a  continuing   guaranty:  Brandt  Guar.  &    Sur.,  sees.   158,   159  et  seq. ; 

Whitney  V.  Groat,  24   Wend.  81.  wherein  the  Wade  on  Notice,  sees.  392  et  seq. 

court  said:  "It  [the  letter]  was  not  a  ]  roposi-  In  order  to  do  away  with  the  necessity  of 

tion   to   become   surety  for  Van  Eps,   but  an  notice,  the  letter  must  contain  no  prerecjuisito 

absolute  undertaking  to  pay  for  the  goods  if  he  conditions.     It  must  be  absolute.     Cases  cited 

did  not,  and  obviously  contemplated  a  sale  and  supra. 
delivery  on  presentatit)u.     Unless  there  is  some- 

2833.    The  credit  given  must  agree  with  the  terms  of  the  letter. 

Sec.  286G.  If  a  letter  of  credit  prescribes  the  persons  by  whom,  or  the  mode 
in  which,  the  credit  is  to  be  given,  or  the  term  of  credit,  or  limits  the  amount 
thereof,  the  writer  is  not  bound  except  for  transactions  which,  in  these  respects, 
conform  strictly  to  the  terms  of  the  letter. 

Seclion  followed  in  Dod'je  v.  Meyer,  Gl  Cal.  tion  is  as  to  the  construction  or  meaning  which 
405,  439.  shall  be  given  to  the  terms  which  have  been 

Coustniction  should  b3  reasonabla  and  used  in  tlio  instrument,  "Ave  should  ne\cr  for- 
libsral.  The  surety  or  guarantor  should  nut  get  that  letters  of  guaranty  are  commercial  in- 
beheld  beyond  the  precise  stipulations  of  his  strunients,  generally  draw  n  up  l;y  merclKiuts  ia 
contract:  Sec.  2S!]j,  «/(/e.  And  lie  has  aiiglit  brief  hiiiguage,  sometimes  inartiticial,  and  often 
to  insist  up(m  the  exact  pciformance  of  any  loose  in  their  structuie  and  aim;  and  to  con- 
condition  for  wiiicji  he  has  stipulated,  whether  strue  the  words  of  such  instruments  witli  a 
others  would  consider  it  material  or  not:  Gates  nice  and  technical  care  would  not  only  defeat 
T.  McKee,  13  N.  Y.  232.     But  when  the  ques-     the  intention  of  the  parties,  but  render  theia 

4SS 


Title  XIV,  Chap.  I.]  LIENS  IN  GENEP.AL.  §5  2S72-2874 

too  Tinsafe  a  basis  to  rely  on  for  extensive  cred-  If  amount  of  rrfdU  u  llmttyd,  party  advanc- 
its,  so  otten  souglit  in  the  present  active  bus!-  ing  on  faith  of  th*;  letter  is  bound  iit  his  peril 
iiess    of    commerce    throughout    the    workl:"     to  ascenaiu  wheLiier  the  authority   conferred 


judgmeiitonaicasonableiuterpretation:  Seenote     Leeda  x.  Dunn,  ION.  Y.  475. 
to  sec.  2So7,  aide,  "llatiouallntcrpretutiou." 


TITLE  XIV. 

LIEN. 

CJhapter  I.     LiExs  IN  General 2872 

II.     Mortgage 2920 

III.  Pledge  208G 

IV.  Bottomry , . , .  3017 

V.     IIerpoxdentl^ 303(5. 

VI.     Other  Liens  304G 

VII.     Stoppage  in  Transit 3076 

*' Altliough  tlie  arrangement  of  this  subject  and,  under  the  provisions  of  this  code,  nothing 
is  novel,  its  propriety  and  advantages  will  be  more.  They  arc  suhject,  tiierefore,  to  all  the 
perceived   at  a  glance.     Mortgages   arc  liens,     general  rules  of  liens:"  Commisbioners'  note. 

CHAPTER  L 

LIENS  IN  GENERAL. 

Article  I.     Definition'  of  Liens 2872 

II.     Ckkation  of  Liens 2SS1 

III.  Efkkct  of  L[p:ns 2SS3 

IV.  Pkioujty  of  Liens 2897 

V.     Redemption  from  Liens 2903. 

VI.    Extinction  of  Liens 2909 

ARTICLE  I. 

definition  of  liens. 

2872.  Lien,  ivhxd. 

Sko.  2872.  A  lien  is  a  charge  imposed  in  some  mode  other  than  by  a  transfer 
in  trust  upon  specific  property  by  which  it  is  made  securit^'for  the  performance 
of  an  act.  \  Amend iiienl,  approved  February  15,  1878;  Amendments  1877-8,  88; 
took  ejl'evl  xirlu'/li  day  after  passage.] 

DsSnltion. — A  lien  is  a  simple  right  to  pos-  "  There  is  here  preserved  under  one  name 
sess  or  letaai  a  certain  piece  of  personal  prop-  both  the  common  law  and  the  oi|uital)lo  litms, 
erty  or  cluittil  until  some  charge  attaching  to  and  under  oue  liea  1  all  the  general  principlea 
it  is  |):ud  and  discharged,  or  a  mere  right  to  which  alFect  lieus  l)y  possession  or  mortgage: 
maintain  a  suit  In  mn  to  enforce  payment  of  See  sec.  1  ISO,  CodeCiv.  Proo. :"  From  comuiia* 
the  charge:  Overton's  Law  of  Liens,  \.  sioners'  note, 

2873.  Liens,  general  or  special. 

Sec.  2873.     Liens  are  either  general  or  special. 

2374.    General  lien,  ivhat. 

Sec.  2874.  A  general  lien  is  one  which  the  hohler  thereof  is  entitled  to  en- 
force as  a  security  i'or  the  performance  of  all  the  obligations,  or  all  of  a  partic- 
ular class  of  obligations,  which  exist  in  his  favor  against  the  owner  of  the^ 
property. 

487 


§§  2S75-2883  OBLIGATIONS.  [Div.  Ill,  Taut  IV, 

Who  entitled  to The  general  lien  existed  and  not  otherwise:  Weeks  on  Attorneys,  see. 

at  first  only  by  contract,   hut  ^^as  afterwards  .STl;  Uotrlijuj  Orren  SachifjH  Dank\.  Todd,  o2 

allowed  to  be  claimed  by  implication  from  tlie  N.    Y.    491;  DciivHt  v.   <Jult.^<,    11    N.    H.    1G3; 

general  usage  of  trade  or  mode  of  dealing  be-  Walker  v.  ,Sar<jeaiit,  14  Vt.  247;  see  Si.  John.  v. 

tween  the  parties.     This  custom  must  be  sliowu  Dirfciidorf,   12  Wend.    201;  Ex,  parle  Kyle,    I 

to  be  so  notorious  and  nniform  that  the  party  Cal.  331:  Mant^fwll  v.  Dorlaml,  2  Id.  507;  and 

against  whom  tlie  right  is  claimed  must  ueces-  see  extensive  note  to  Andrews  v.  AIorne,  31  Am. 

sarily  have  taken  it  into  consideration.     Gen-  Dec.  7">o. 

eral  liens  are  regarded  as  an  innovation  upon  Insurance  brokers  have  been  held,  from  the 

the  comi^.ou  law,  and  are  not  regarded  with  usage  of  this  kind  of  brokerage,  to  liave  a  lien 

favor  by  the  courts;  3  Parsons  on  Cont.   2.'>5,  for  their  general  l)alance  upon  the  policies  which 

23');  Mrliit;ire  v.  Carver,  37  Am.  Dec.  519,  note  are  intrusted  to  them,  in  order  to  enaldo  them 

-522;  Overton's  Law  of  Liens,  1(1-17.  to  adjust  losses  on  such  policies:   Wharton  on 

Attorneys  at  la^w  liave  both  a  particular  or  Agency,    sec.    707;    lUi^isell   on    Factors,    194; 

pneeial    and  a  general   lien;  but   whereas   tiie  S/irini/ v.  Iiisuraiice  Co.,  8  Wheat.  2d;i;  Crans- 

f:r.;t,  being  for  labor  bestowed  and  money  ex-  ton   v.  Iii>itiranre  Co.,  5   Binn.    538;   Moody  v. 

])ended  only  upon  one  transaction,  attaches  not  Webster,  3  Pick.  454;  see  Jarc'm  v.  Hojers,  15 

only  Tijiiin  the  papers  and  documents   coming  J\las.s.  3;Ki. 

into  tlu-ir  hands  in  the  course  of  the  transac-  Factors. — Usage  of  trade  usually  gives  fac- 
tion, but  also  upon  the  fruits  of  the  judgment  tors  a  general  lien,  which  is  establiahed  in  tiiia 
or  decree  which  their  exertions  have  obtained,  state  by  section  30J3,  post. 
Weeks  on  Attorneys,  aecs.   3G8,  309,   tlie  gen-  Banker:  Sec.  3054,  j^o.^t. 
tral   lien,  being  for  tlie  balance  due  the:n   for  Master  of  ship:  .Sec.  3055,  ;ws<. 
])rofessioiial  services,  usually  attaches  only  to  IJate  and  scauieu:    Sec.  ."O.iG,  poxt. 
the    papers  and    documents    which    come  into  Lien  for  services:  See  sec.  3051,  ^jOS<. 
their  possession  in  their  professional  capacity, 

2875.  Sppcial  lien,  xoliat. 

Sec.  2875.  A  special  lien  is  one  whicli  tlie  bolder  thereof  can  enforce  only  as 
security  for  the  performance  of  a  particular  act  or  obligation,  and  of  such  obli- 
gations as  may  be  incidental  thereto. 

Incidental  thereto:  See  next  section. 

2876.  Prior  liens. 

Sec.  287G.  Where  the  holder  of  a  special  lien  is  compelled  to  satisfy  a  prior 
lien  for  his  own  protection  he  may  enforce  payment  of  the  amount  so  paid  by 
liim  as  a  part  of  the  claim  for  which  his  own  lien  exists. 

To  the  same  effect:  liobingon  v.  Jtyan,  25  N.  Y.  320. 

2877.  Contracts  subject  to  provisions  of  this  chapter. 

Sec  2877.  Contracts  of  mortgage,  pledge,  bottomry,  or  respondentia,  are 
subject  to  all  the  provisions  of  this  chaj)ter. 

ARTICLE  II. 

CREATION   OF   LIEN'S. 

2831.    Lien,  how  created. 

Sec.  2881.     A  lien  is  created: 

1.  By  contract  of  the  parties;  or, 

2.  By  operation  of  law. 

Classification. — "Liens  exist  by  common  or  by  express  agreement  of  parties: "  3  Parsoua 
law,  or  are  created  either  by  usage,  by  statute,     on  Cont.  238. 

2382.    Ko  lien  for  claim  not  due. 

Sec  2882.  No  lien  arises  by  mere  operation  of  law  until  the  time  at  which 
the  act  to  be  secured  thereby  ought  to  be  performed. 

2883.    Lien  on  future  interest. 

Sec  2883.  An  agreement  may  oe  made  to  create  a  lien  upon  property  not 
3'et  acquired  by  the  party  agreeing  to  give  the  lien,  or  not  yot  in  existence.  In 
Buch  case  the  lien  agreed  for  attaches  from  the  time  when  the  party  agi'ceing  to 
give  it  acquires  an  interest  in  the  thing,  to  the  extent  of  sut^h  interest. 

4S8 


Title  XIV,  Chap.  I.] 


LIEXS  IN  GENERAL. 


§§  2884-2888 


create  a  lion  upon  personal  property  thereafter 
to  be  ac(]uire(l  l>y  him,  the  lien,  iu  equity,  at- 
taches upon  the  particular  property  as  soon  a3 
the  person  so  contracting  acquires  the  title 
thereto. 


Ilcnco,  a  c"si^t  cf  partioular  l:ind'3  to  be 
acipiii'cd  VI  J'litxm  is  valid,  ami  takes  effect  as 
a  specilic  lisii  upon  the  lands  as  soon  rs  they 
are  acquired.  In  Bihend  v.  L.  <L'  L.  F.  d:  L. 
Ins.  Comjiaify,  .33  Cal.  78,  it  was  held  that 
whenever  a  person,   by  contract,   intends   to 

2£S4.    Lien  may  he  created  b;/  confrarf. 

^Ec.  2884.     A  lien  may  be  created  hj  contract,  to  take  immediate  effect,  as 
Becurity  for  the  performance  of  obligations  not  then  in  existence. 

MortgasGS    for   future    advances,   if   not     that  if  the  mortcrase  states  on  its  face  that  it  is 


tainted  wi.h  fraud  or  want  of  good  faith,  were 
valid  as  a'^'ainst  subsequent  purchasei-s  and  ia- 
cuniliranccrs,  so  far  at  least  as  ri-'spccts  ad- 
vaucLS  nia  le  before  the  right  of  sucli  purchas- 
ers or  iiicuuilji'ancers  attached,  even  atconiinon 
law:  1  Juni-s  on  Mortgages,  sec.  3(53;  and  they 
are  so  now,  not  only  in  England,  but  tlirough- 
out  the  Uuittd  States,  except  where  positive 
statutes  have  been  enacted  prohibiting  or  re- 
stricting Ruch  mortgages:  Id.,  sees.  305  et  seq.; 
Tiil/i/  V.  J/nrloe,  3.5  Crd.  302;  Uobhimn  v.  Wdl- 
iam-s  22  N.  Y.  380;  Divver  v.  McLau<jldlti,  20 
Am.  Dec.  0.")0,  note. 

Purpose  of  mortgage,  necessity  of  stat- 
ing.— There  is  much  conflict  of  authority  on 
this  point:  Llvverw.  McLamjldiii,  20  Am.  Dec. 
053,  and  note. 

The  more  reasonable  doctrine,  and  that  sanc- 


t3  secure  future  advances,  the  utmost  limit  of 
such  advances  need  not  be  expressed:  Roliia- 
sni  V.  U'llUams,  22  N.  Y.  380;  Jarritl  v.  Mc- 
Vaiticl,  32  Ark.  503;  Alln  v.  Lxtkroj^  43  Ga. 
l'>3;  ]Vllziii-'<!d  v.  Everman,  51  Miss.  841;"  see 
opinion  by  Campbell,  J.,  in  last  case;  1  Jones 
on  ilortgiiges,  3G7,  note,  wliere  it  is  stated  that 
later  decisions  in  that  state  liave  overruled  the 
contrary  doctrine  previously  iield  in  Connecti- 
cut, liule  in  Cimnecticut:  See  PcU.bone  v. 
Grlnvold,  10  Am.  Dec.  103,  and  note  lOS.  If 
the  means  of  ascertaining  the  (xtent  of  the  lien 
are  pointed  out  in  tlie  mortgage,  it  is  enough: 
Allen  V.  L'llhrop,  4G  Ga.  13:!;  sec  McDanlela  v. 
Colohi,  10  Vt.  3J0;  Ins.  Co.  v.  Brown,  1 1  INlich. 
200;  Jones  on  Chattel  Mortgag'-s,  .sec.  95. 

"Wliether  actual  notice  of  subsequent 
incumbrance     necessary    to     limit     ad- 


tioned  by  the  greater  weight  of  authority,  is     vances. — As  to  whether  a  subse(|uent  incum 


that  if  the  whule  amount  intended  to  be  se- 
cured is  expressed,  tlie  fact  that  sucIi  amount 
is  to  consist  wholly  or  partly  of  future  advances 
necil  not  be  stated:  Tivly  v.  Ilarloe,  35  Cal. 
302,  where  the  court,  by  Sauderson,  J.,  paid: 
"It  is  alvvaj's  better,  however,  for  obvious  rea- 


braucer  must  give  actual  notice  of  his  incum- 
brance to  the  holder  of  a  prior  mortgage  to 
secure  future  advances,  in  order  to  limit  the 
security  to  the  advances  already  made,  and 
prevent  furtlier  advances  upon  such  |)rior  lien, 
or  whether  tlie  mere  recording  of  the  subse- 


SDus,  that  the  mortgage  should  be  drawn  so  as  quent  incumbrance  is  sutiicient  for  that  j)ur- 
to  show  tlie  true  object  and  pur[)Ose  of  the  pose,  the  decisions  are  also  at  variance.  The 
transaction,  for  suspicion  is  engendered  by  mis-  preponderance  of  the  authorities,  however, 
representaiion,  but  disarmed  by  a  statement  favor  the  rule  that  the  subseepient  incum- 
of  the  truth:"  Id.  309;  see  Jones  on  Chattel  brancer  should  be  required  to  give  actual  no- 
Mortgages,  sec.  96.  tice  of  his  incumbrance:  Ward  v.  Cooke,  17 
A3  to  whether  the  utmcst  amount  of  tlie  N.J.  Eq.  00;  S/iirras  v.   Cahj,!  C  ranch,  51; 


lieu  yhouhl  be  stated  in  each  instance,  there  is 
also  nuich  conflict  of  authority.  In  Tully  v. 
Ilarloe,  33  Cal.  302,  it  is  held  that  the  instru- 
ment ''must  sliow  upon  its  face  the  utmost 
amoiuit  intended  to  be  secured,  but  it  need  not 
show  wlietlier  t'lat  amount  represents  an  exist- 
ing debt  or  future  advances."  But  tlie  court 
were  not  calied  upon  to  decide  wliether,  if  the 
instrument  actually  expressed  its  object  and 
purpose,  it  would  still  be  necessary  to  st  i.te  the 
ultimate  amount.      In  commentinLT    upon  this 


Doswell  v.  Goodwin,  31  Conn.  74;  Brinlcmeyer 
V.  Broirncllcr,  55  Ind.  45;7;  J\Ic Daniels  v.  Col- 
vin,  10  Vt.  330;  Fn/e  v.  Ban!:  of  Il'inois,  II 
111.  3G7;  Ripley  v.  Unrris,  3  Diss.  199;  Xel- 
son  V.  I'Oyce,  7  J.  J.  Marsh.  401;  and  1  Jones 
on  Mortgages,  sees.  30-1,  372;  see  article  in  11 
Am.  L.  Reg.,  N.  S.,  273. 

The  contrary  is  held  in  Ladiie  v.  Detroit  etc. 
R.  Co.,  13  INiich.  330;  Spader  v.  Lawler,  IT 
Ohio,  371;  Parmentierv.  Gillespie,  9  Pa.  St.  86. 

Where  Ike  aduance.i  are  oblijrdory,  being  made- 


case,  the  anuotator  of  the  American  Decisions  pursuant  to  a  binding  agriicinent,  tlie  prior 
says,  iJiccer  v.  .]/rLaughHn,  20  Am.  Dec.  003:  mortgage  is  a  valid  and  fixed  secui'ity  to  the  ex- 
"In  that  case,  however,  the  mortgage  was  for  tent  to  which  the  mortgagee  is  b mud  to  make- 
three  tliousauil  dollars,  while  the  debt  actually  advances,  irrespective  of  any  notice  of  subse- 
existing  at  the  time  was  consideraljly  less  than  quent  incuml)rances:  Nelson  v.  Iowa  Brisleni  R. 
that;  and  it  w:.s  claimed,  though  nt)tstite:I  in  Co.,  8  Am.  Railw.  Rep.  82;  Ly!e  v.  Diuymb,  5- 
the  mortgage,  that  the  residue  was  inten  led  to  Binn.  585;  WHson  v.  Russ'll,  i;>  Md.  4.)5;  JSos- 
securc  future  advances.  The  decision,  there-  ivell  v.  Goodioin,  31  Conn.  74;  lirinhneyer  v. 
fore,  thoug'i  imide  in  general  terais,  is,  when  Browne'lcr.  55  Ind.  487;  Brinknieyer  v.  Ilel' 
interpreted  by  the  ]iarticular  facts  of  the  case,  bin<i.  57  Id.  4."»5. 

not   incon^iatellt  with   the  rule  deduced    from  Rataniion  of  p03S333ioa  no  evidence  ot 

the  greater  weight  of  the  authorities,  which  is  fraud:  See  note  see.  2920. 

ARTICLE  III. 

EFFECT    OF    LIKNS. 

28S3.    TAcn,  or  contract  for  lien,  Iranxfrm  no  title. 

Sec  2888.     Notwithstandiu-:^  an  a.^reftmont  to  the  contrary,  a  lieu,  or  a  con- 
tract for  a  lien,  transfers  no  title  to  the  property  subject  to  the  lion. 

489 


§2SS9 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


TIi3  objsot  of  tliis  sestloa  was  to  establish 
a  uuifonii  nile  l)otlias  to  mortgages  of  personal 
as  well  as  of  real  property.  Some  of  the  early 
cases  in  this  state,  of  mortgages  of  personalty, 
held  that  the  legal  title  was  vested  in  the  mort- 
gagee: llarlell-  v.  Jlaiilore,  14  Cal.  85;  and  see 
Maori'  V.  Mnrdork,  23  Id.  5'2G.  "  It  appeared 
desirable  to  establish  a  uniform  rule  upon  tliis 
6u!>ject,  and  to  make  all  mortgages  mere  liens 


when  tliemortgagorsnl^stypTeatljracquirpa  title, 
ib  inures  to  the  mortgagee:  Sec.  2.);]:),  post; 
Vallcjo  Land  Ass'ii  v.    Vkni,  48  Cal.  u72. 

Pracliral. —  1.  Comnionl  iw  view. —  Mort- 
gagee is  entitled  to  immediate  possession  unless 
restrained  by  the  terms  of  the  mortgage,  and 
upon  default  Jie  is  always  entitled  to  possession, 
and  may  recover  it  by  an  action  at  law. 

Lip>i   theory. — Mortgagee  is  not  entitled   tc 


upon  pi-operty.     Tlie  propriety  of  the  rule  in     possession  until  foreclosure  ami  sale  unless  by 


respc'.:t   to  other   liens   will    hardly   be   ques 
tioncd;"  Commissioners'  statement. 

DilTeren^es,  theoretical  and  practioal, 
b3tween  modern,  commmon-law,  and  lien 
tlieori3.3  of  mortgages.  —  Theoretical. — Both 
63'stcms  are  incongruous  r.nd  incorsistcnt:  Jones 
on  r^Iortgages,  sec.  14;  Wlute  v.  Rltlenmeyer,  30 
Iowa,  ."71. 

Common-law  view. — The  mortgagee  is  re- 
garded as  the  owner  of  the  legal  estate  for 
tlie  purpose  of  protecting  and  enforcing  his 
riglits.  The  mortgagor  is  regarded  as  legal 
owner  as  against  every  other  person.  At  law 
the  mortgagee  is  the  legal  owner;  in  equity  the 
mortgagor  is  the  legal  owner.  Although  the 
legal  tiJe  has  passed  to  the  mortgagee,  it  may 
be  defeated  liy  act  of  the  grantor,  /.  e.,  pay- 
ment at  or  before  the  maturity  of  the  debt  (law 
<lay). 

Lien  theory. — It  is  admitted  tliat  this  doc- 
trine is  anomalous.  Tliat  a  legal  conveyance 
<loes  not  pass  a  legal  title  is  not  in  aci:ord- 
anc3  with  legal  principles.  Aloreover,  it  has 
beer  lound  that  in  order  to  secure  the  equitable 
lights  of  the  parties  tiie  mortgagee's  interest 
must,  in  some  case,  be  treated  as  a  title:  Ilub- 
hell  V.  MoiUon,  53  N.  Y.  223;  2Iirhles  v.  Towns- 
evd,  13  Id.  575,  584;  Jones  on  Mortgages,  sec. 
715;  Civ.  Code,  sec.  21)29,  i)ost;  as,  when  the 
Uiortgajee  his  acquired  possession,  he  cannot 


special  agreement:  Sec.  2927,  j>od. 

Tliis  is  the  main  distinction,  from  wliich  the 
following  may  result: 

2.  At  common  law,  tender  or  payment,  to  de- 
feat the  mortgagee's  title,  must  be  made  at  or 
before  law  day,  as  the  day  of  payment  is  ternied. 

Under  the  lien  t'leory,  tender  even  after  law 
day  but  before  foreclosure,  and  payment  at  any 
time,  discharges  the  mortgage  hen.  But  in  this 
fatate  the  tender,  to  discharge  t!ie  mortgage  lien, 
must  be  made  at  or  before  law  day.  Sec  this  dia- 
cusseil  at  length  in  note  to  section  2905,  pod. 

3.  At  common  law,  a  transfer  of  tlio  mortgage 
interest  can  only  be  made  by  an  assignment  or 
deed  duly  executed  as  a  con^'eyance. 

Under  the  lien  theory,  a  mere  transfer  of  the 
mortgage  note  by  indorsement  or  delivery 
passes  the  mortgage  lien:  Sec.  203G,  ;'0s<. 

The  follo'wms  states  and  territories  have 
adopted  the  liea  theory  of  mortgages: 
California,  Dakota  Territory,  Florida,  Georgia, 
Indiana,  Iowa,  Kansas,  Louisiana,  ^lichigan, 
Minnesota,  Montana  Territory,  Nebraska,  Ne- 
vada, New  Mexico,  New  York,  Oregon,  South 
Carolina,  Texas,  Utah  Territory,  Washington 
Territory,  and  Wisconsin. 

In  California,  Iowa,  Kansas,  and  Nevada  the 
statutes  imply  tliat  the  parties  may  by  express 
stipulation  give  the  right  of  possession  to  the 
mortgagee:  Sec.  2927,  post;  Jones  on  Mortgages, 


generally  be  ejected  until  the  debt  is  paid,  or    sees.  14,  15,  58,  59, 
2389.    Certain  contracts  void. 

Sec.  2889.  All  contracts  for  the  forfeiture  of  property  subject  to  a  lien,  in 
satisfaction  of  tbe  obligation  secured  thereby,  and  all  contracts  in  restraint  of 
the  right  of  redemption  from  a  lien,  are  void. 

"This  13  a  well-settled  rule  in  relation  to     the  ri'ht  of  an  owner  of  a  thing  found  to  ex- 


a  mortgage:  See  Clark  v.  llenrn,  2  Cow.  324; 
IloUridje  v.  Gillespie,  2  Johns.'  Cli.  30;  Rem- 
sen  V.  I/ny,  2  Edw.  5:i5;  Palmer  v.  Cnrnscy,  7 
Wend.  248.  The  general  maxim  of  jurispru- 
dence ajjplicable  to  such  cases  is,  'once  a 
mortgage,  always  a  mortgage: '  Lee  v.  Lvins, 
8  Cal.  424;  2  C>w.  .324;  1  "Yeates,  58 1;  com- 
pare Billy.  Mayor  etc.  of  New  York,  10  Pai','e, 
41),  5G;  Burns  v.  Xevlns,  27  Barb  493,  503. 
The  rule  also  applies  to  a  pledge:  Code  Napo- 
leon, sec.  2078;  Lucletts  v.  Townsend,  3  Tex. 
119.  Sloher  v.  Cogxivdl,  2.5  How.  Pr.  2G7,  is  a 
strong  case  upon  this  rule.  This  beneficent 
princi]ile  doubtless  governs  in  all  cases  of  liens, 
and  the  commissioners  have  felt  no  hesitation 
in  giving  it  in  this  place  as  a  universal  rule. 
They  have  omitted    the  qualifying   words  of 


onerate  himself  from  all  the  claims  of  a  finder 
by  surrendering  to  the  tinder  the  proiierty 
found.  See  sec,  1871,  ante:"  Commissiouera' 
note. 

In  support  of  the  proposition  mentioned  in 
the  above  note,  that  a  mortgagor  may  make  a 
bonaf  !e  .sale  of  his  property  to  the  mortgagee, 
the  following  are  authorities:  /rt/is  v.  Conway 
Mutual  F.  Ins.  Co.,  7  Allen,  4(3;  Venninn  v. 
Lalirork,  13  Iowa,  194;  Pr'drhard  v.  Eton,  38 
Conn.  434;  Wyncoop  v.  Cowinij,  21  111.  570; 
MarsliaH  v.  Stewart,  17  Ohio,"  350;  Ode:l  v. 
I\Iontros.-i,  6  Hun,  155;  S.  C,  (18  N.  Y.  499; 
Shaw  v.  Walbridge,  33  Ohio  .St.  1;  Lhinelt  v. 
L'ford,  72  :Me.  280.  In  Oreen  v.  Bnllcr.  26 
Cil.    GJl,    the    court,    per    Sawyer,    J.,    said: 

But  tliere  can  be  no  dou1)t  that  a  mortgagee 


some  of  the  decisions,    which   im])ly  that  an     can  make  a  io/ia/Je  purchase  of  the  ecjuity  of 

agreement  in  restraint  of  redemption  maybe         '  " 

made  siib-eciuently  to  the  execution  of  a  mort- 
gage, inasmuch  as  such  a  qualiiication,  if  it  is 
a  correct  statement  of  the  law  (which  is  at 
least  extremdy  doubtful),  is  certainly  not  de- 
sirable. Of  course  a  mortgagor  may  sell  his 
property  to  the  mortgagee,  l)ut  the  transaction 
must  be  a  genuine  sale,  and  not  a  forfeiture. 

This  section,  however,  is  not  intended  to  deny     Sylvester,  3  Nev.  228 

400 


redemption — if  indeed  we  may  use  these  terms 
in  the  present  condition  of  the  law  as  to  mort- 
gages in  this  state — and  thereby  acquire  aa 
ab^oluTe  title." 

Pledge. — The  parties  may,  at  a  time  subse- 
quent to  the  pledge,  make  a  hona  J/'de  .and  just 
agfcement  that  the  creditor  shall  take  the 
pledge  in  satisfaction  of  the  debt:    lieatly  v. 


Title  XIV,  Chap.  I.] 


LIENS  IN  GENERAL. 


§§  2S90-2S9S 


2800.    Creation  of  lien  doeft  not  impl)/  prTf<onal  obligchon. 

Sec.  2S90.     The  creation  of  a  lieu  does  uot  of  itself  imply  that  an}^  person  is 
bound  to  perform  tlie  act  for  •which  the  lien  is  a  securitj. 


The  efore  tlie  remedy  of  the  mortgages 

will  be  coufuied  to  the  inoperty  mort^ageJ, 
unless  the  iiibtruniciit  contaiiif*  an  express 
agreement  to  pay  thcfcum,  or  a  distinct  acknowl- 
edgment of  an  existing  debt,  or  nulesa  there  be 
some  otlicr  and  extraneous  evidence  of  the 
debt:  C'nlrer  v.  Sisson,  3  N.  Y.  2G4;  Lnrinou  v. 
Carpenter,  70  111.  549;  Wetd  v.  Cov'Uk,  14  Barb. 


242;  Coleman  v.  Van  RensKelaer,  44  IIo-w.  Pr. 
SlJS;  ikiijlord  v.  Knapp,  15  Ilun,  87;  Haider' 
VKtnv.  Woodward,  22  Kan.  734;  Wed  v.  <'hurch- 
man,  52  Iowa,  253.  So  by  statute  in  Indiana: 
Act  lSSl,p.  3G5;  Civ,  Code, sec.  713;  U.S.  1881,' 
sec.  109G. 

See  sees,  2909,  2928,  3000,  post. 


2831.    Extent  of  lien. 

Sec.  2891.  The  existence  of  a  lien  upon  property  does  not  of  itself  entitle 
the  person  in  whose  favor  it  exists  to  a  lien  upon  the  same  property  for  the  per- 
formance of  any  other  obligation  than  that  which  the  lien  originally  secured. 

2892    Uolder  of  linn  not  entitled  to  compensation. 

Sec.  2892.  One  who  holds  property  by  virtue  of  a  lien  thereon  is  not  enti- 
tled to  compensation  from  the  owner  thereof  for  any  trouble  or  expense  which 
he  incurs  respecting  it,  except  to  the  same  extent  as  a  borrower,  under  sections 
eighteen  hundred  and  ninety-two  and  eighteen  hundred  and  ninety-three. 

Mortgagee  in  possession  is  accountable  for    the  rent  when  a  prudent  owner  would  liave  env- 


the  rents  and  profits,  afi;er  deducting  ncccssaiy 
expenses  of  managing  the  property,  which  in- 
clutle  taxes  and  necessary  repairs,  but  not  new 
and  permanent  improvements,  unless  there  are 
special  circumstances %\hicli  render  them  indis- 
pensable: Hidden  v.  Jordan,  28  Cal.  301;  S.  C, 
32  Id.  397;  see  also  Jones  on  Mortgages,  sees. 
1114  et  bcq. 

Allowance  for  compensation. — A  mort- 
gagee ill  possession  is  not  entitled  to  compensa- 
tion for  managing  the  property  or  collecting  the 
rents.  He  takes  tlic  charge  upon  himself  volun- 
tarily, and  has  no  right  to  couipensation:  Beji 
ham  V.  liOii-e,  2  Cal.  3fti7;  but  he  may  charge  for 
the  services  of  au  agent  employed  iu  collecting 


ployed  an  agent  in  like  circuuistances:  Davis  v. 
Deinbj,  3  Mad.  170;  Harper  v.  Ely,  70  111.  581. 

In  JIassaohusetts  and  Connecticut  he  is  gen- 
erally allowed  compensation  for  his  services; 
in  tl'.e  former  state  usually  live  per  cent:  Ger- 
risk  V.  Black,  104  ilass.  4J0;  Monta'jne  v.  Bos- 
ton iL-  A.  R.  Co.,  124  Id.  212;  Waterman  v. 
CurtU,  2G  Conn.  241, 

Mr.  Jones,  Mortgages,  sec.  1132,  says  the 
tendency  in  recent  cases  is  evidently  in  the  di- 
rection of  a  change  iu  the  rule  of  no  compensa- 
tion, ;ind  cites  Green  v.  Lamh,  24  Ilun,  87, 
^\■here  the  court  say  that  no  lixed  rule  should 
be  iaitl  down,  in  view  of  tlie  varying  circum- 
stances in  diilerent  cases. 


ARTICLE  IV. 

PraORITV    OF   LIENS. 

2897.    Priority  of  liens. 

Sec.  2897.  Other  things  being  equal,  different  liens  upon  the  same  property 
have  priority  according  to  the  time  of  their  creation,  except  in  cases  of  bottomry 
and  respondentia. 


Priority  of  liaas. — The  principle  is  believea 
to  be  universal,  that  a  prior  lien  gives  a  prior 
claim,  winch  is  entitled  to  prior  satisfaction, 
out  of  the  subject  it  binds,  unless  the  lien  be 
intrinsically  defective,  or  be  displaced  by  some 


act  of  the  party  holding  it  wliich  shall  post- 
l^oue  him  in  a  court  of  law  or  eijuity  to  a  sub- 
se(iuent  claiuiant:  Per  Marshall,  C.  J.,  iu  A'on- 
kiii  V.  Scott,  12  Wheat.  179. 


2898.    Priority  of  mortgage  for  price. 

Sec.  2898.  A  mortgage  given  for  the  price  of  real  property,  at  the  time  of  its 
conveyance,  has  priority  over  all  other  liens  created  against  the  purchaser  sub- 
ject to  the  oparation  of  the  recording  laws. 

Mortgage  to  seouro  purchass  pric3. —    nin{/  v,  Edes,  6  Minn,  402;    Turk  v.  Funk,  68- 


"The  execution  of  the  deetl  and  of  the  mort- 
gage being  sinuiltaneous  acts,  the  title  to  the 
laml  does  not  for  a  single  moment  rest  in  the 
purchaser,"  aud  therefore  a  lien  cannot  attach: 
Curlii  V.  Ii'oot,  23  IU.  53;  aud  such,  in  the  ab- 
sence of  statutory  provision,  is  the  reasoning 
of  tlie  courts:  LinJi  v.  Cannon,  3S  N.  J.  L. 
aG2;  CUj  Nat.  B'k  A  pp.,  91  Pa,  St.  103;  Bxn- 


Mj.  IS;  sec  Jones  on  Mortgages,  .sec.  4G3;  but 
tliis  reasoning  is  sound  only  where  tlie  systetii 
of  couimoudaw  mortgage!  obtains,  and  titlo^ 
pa<sc3  by  mortgage.  Yet  as  it  is  a  principle 
prj-eiuinently  just,  it  has  been  tlie  subject  of 
siatuuory  enactment  m  mauy  state-*;  viz.,  In- 
diau;v,  Kansas,  Mi.=?sissippi,  Maryland,  New 
Jersey,    Delaware,    North    Carolina,    Georgia* 


491 


2899 


OBLIGATIONS. 


[Div.  Ill,  Pakt  IV, 


"  This  sound  doctrine  is,  for  greater  certainty, 
made  a  statute  provision  in  New  York:"  4 
Kent's  Com.  174. 

The  saprenie  court  of  this  state,  although 
their  leasous  are  not  stated  in  the  opinion, 
early  ailuj^ted  this  piiuciple:  Guy  v.  Carrlere, 
5Cal.  T)!!. 

Goed  if  made  to  tlilrd  person. — This  rule 
applies  even  Mlicrc.  llie  niorti.^age  is  made  to  a 
third  person,  who  as  part  of  the  same  trans- 
action advances  the  purchase  money:  Clark  v. 
Muiiroc,  14  Muss.  SJI;  McGowaii  v.  Smith,  41 
Barb.  232;  K'liite  v.  Van  Dyck,  1  Sandf.  Ch.  70; 
Jones  V.  Parler,  ol  Wis.  218;  Kaiser  v. 
Lem//ecL\  7  N.  \V.  I!ep.  519  (Iowa);  BUlinrjs- 
Ici/  V.  Xlhktt,  DO  Miss.  507.  And  see  Cirr 
V.  CaXihrail.,  10  Cal.  330,  wliere  a  third  person, 
advancing  money  to  pay  oiT  a  mortgage  for 
purchase  money,  under  forcclos;ure  of  whicli 
tb.e  property  was  about  to  be  sokl,  was  subro- 
gated to  the  rights  of  the  first  rjiortga_u:cc,  said 
third  person  hav  ing  taken  as  security,  immedi- 
-ately  upon  the  advancing  of  the  money,  a 
.mortgage  tipon  tlie  prop'erty:  See  also  Lassen 
V.  I  We,  8  Cal.  271;  Dillon  v.  B>jrne,  5  Id. 
453.  If  cxecute<l  before  the  conclusion  of  tlie 
j.urchase  to  sccuic  a  loan  with  which  to  make 
a  casli  ]  ayment,  thougli  this  mortgage  be  exe- 
■cuted  before  the  mortgage  to  the  vendor,  yet 
the  latter  will  take  precedence:  Turk  v.  I'uul:, 
•CS  Mo.  IS;  aiy  Kal.  U'/c  App.,  91  Pa.  St.  1G3. 
And  see  contra,  to  rule  applying  in  case  of  tliird 
.persons:  Slciusler  v.  K'icknm,  38  Md.  270; 
>Stansdl  V.  I'obrris,  13  Ohio,  148;  C'almes  v. 
McCrarkn,  8  S.  V.  87. 

Recording. — 1/  the  recording  of  the  pur- 
chase-money moi-tgage  is  delayed,  and  tlie 
•other  is  lirst  recordeil,  in  the  absence  of  notice 
■of  the  existence  of  the  former  mortgage  the 
latter  will  obtain  jiriority:  Dusenbury  v.  liul- 
■her!,  2  Thonip.  &  C.  177. 

Simultaneous  execution.— This  mortgage 
must  be  executed  simultaneously  with  tiie  deed 
-of  conveyance.  Tiic  intervention  of  an  inter- 
val of  time,  during  which  execution  upon  an 
•existing  judguient  might  be  levied,  will  entitle 
*uch  j:ulgmeiit  to  priority:  Aliern  v.  While,  39 
Md.  4G:h,  Fader's  A]y)eal,  3  I'a.  St.  79;  or  an 

2839,    Order  of  resort  to  different  fanch. 

Sec.  2809.  Where  one  Las  a  lien  upon  several  tilings,  and  other  persons  Lave 
Bubordiuate  liens  upon  or  interests  in  some  but  not  all  of  the  same  things, 
the  person  having  the  prior  lien,  if  ho  can  do  so  without  risk  of  loss  to  himself, 
or  of  injustice  to  other  persons,  must  resort  to  the  property  in  the  following 
order,  on  the  demand  of  any  party  interested: 

1.  To  the  things  upon  which  he  has  an  exclusive  lien; 

2.  To  the  things  which  are  subject  to  the  fewest  subordinate  liens; 

3.  In  like  manner  inversely  to  the  number  of  subordinate  liens  upon  the  same 
thing;  and, 

4.  When  several  things  are  within  one  of  the  foregoing -classes,  and  subject 
to  the  same  nuiuber  of  liens,  resort  must  be  liad: 

1.  To  the  things  which  have  not  been  transferred  since  the  prior  lien  was 
crcaied; 

2.  To  ihe  tbingd  wliich  Lave  been  oo  t^^ausf  erred  without  ar- valuable -consid- 
eration; and, 

3.  To  the  things  which  Lave  been  so  transferred  for  a  valuable  consideration 
in  the  inverse  order  of  the  transfer. 

402 


intervening  moi-tgagc:  Houston  v.  Houston,  67 
Ind.  270;  or  a  wife's  dower:  Tihbetta  v.  Lang- 
ley  Mf(j.  Co.,  12  S.  C.  4G5;  must  constitute 
one  transaction:  Grant  v.  l>oilije,  43  Me.  489; 
peculiar  circumstances  under  which  deeil  and 
mortgage  executed  at  dilTerent  times  held  to 
constitute  one  transaction:  See  Uurlburt  v. 
Weaver,  24  Minn.  30. 

If  the  instruments  are  delivered  at  the  same 
time,  it  does  not  niatter  if  they  were  executed 
in  other  respects  on  different  days,  because 
they  take  cli'ect  only  from  delivery:  (Juke^tt 
Appeal,  23  Pa.  St.  ISO;  May'/urry  v.  Brien,  15 
Pet.  21;  Banning  v.  Edes,  U  Minn.  4G2;  Sayn- 
mers  v.  Dame,  31  Gratt.  791. 

Gimultaueous  mortgas23  for  ths  pur- 
chase money  given  to  diJereut  persons 
will  be  given  such  eflcct  as  to  priority  as  shr.U 
best  follow  tlie  intentions  and  secure  the  riglits 
of  all  parties:  Pomeroi/  v.  Lidling,  13  Clray, 
435;  Jones  v.  Phelps,  2  Barb.  Ch.  440;  Uoug- 
lass  v.  Peele,  Clarke,  503. 

When  the  equities  are  equal,  the  oldest  in 
point  of  time  will  prevail:  Uoufes  v.  Schultze, 
2  Brad.  App.  196. 

Prior  recording  will  work  no  preference  aa 
between  such  mortgages,  if  none  was  intended: 
J^hou'les  v.  Caiijleld,  8  Paige,  545;  Sjiarks  v. 
Sfate  B'k,  7  Elackf.  4G9;  Van  Aken  v.  Gleason, 
31  Jilich.  477.  Otherwise  if  such  prior  re- 
corded mortgage  be  assigned  to  an  innocent 
purchaser,  who  in  such  case  will  be  entitled  to 
tlie  priority  thus  obtained:  Decker  v.  Boicc,  19 
Hun,  152;  Corning  v.  Murray,  3  Barb.  652. 

Homesteads  cannot  be  carved  out  of  the 
property,  so  as  to  impair  tlie  rights  of  the  pur- 
chase-money mortgagee:  Montgomery  v.  'J'utt, 
11  Cal.  191;  Lassen  \.  Vance,  8  id.  271;  I'arr 
V.  Caldwell,  10  Id.  3S0;  Mcllendry  v.  Beilly, 
13  Id.  75;  Dillon  v.  Byrne,  5  Id.  455. 

"Where  the  vendor  expressly  reserved 
in  th3  deed  of  conveyance  a  lien  upon  the 
land  conyeyed,  to  secure  the  jiayment  of  two 
promissory  notes  for  a  part  of  the  price,  it  waa 
held  to  create  a  valid  mortgage:  Dingley  v. 
B'k  of  Ventura,  57  Cal.  407;  &ee  sec.  2922, 
post,  and  note. 


Title  XIV,  Chap.  I.] 


LIEXS  IX  GENERAL. 


§§  200.\  2904 


Marshaling  assets. — Tliis  principle  will 
never  lie  cniorccd  ta  the  detriment  if  eitlicr 
claiuiant,  or  of  tlie  person  against  whom  the 
claims  lie:  1  Stoiv's  Ei].  Jiir.,  sees.  5.39,  ;'G0; 
McArthur  v.  MarUn,  •J3  ilinn.  74;  !ilarr  v. 
Lnci.i,  31  Ark.  20;»;  '/'cuj-'or'n  Appeal,  81  I 'a. 
St.  400;  llerrtUKLii  v.  SJdllman,  o.}  llaib.  37S; 
lifyuoldii  V.  Tuoker,  iSWeinl.  591;  JJetrvil  Sav. 
Bank  V.  Tnir.siliit,  38  Mich.  430;  Leib  v. 
SLrihlhu,,  51  M,l.  '285. 

ChatLcl  mortgases. — The  rule  is  applied  to 
chattel  mortgages  ia  PcUiboite  v.  Su'rens,  15 
Conn.  19;  J//ijh  v.  IJroini,  4G  Iowa,  259; 
Turner  v.  Fihni,  G7  Ala.  529;  Lee  v.  Bark,  l.'j 
S.  C.  17S;  Nut.  Bank  v.  AlcLauyhlin,  1  ilu- 
Craiy,  "i.'S. 

Mortgagss. — Tlie  rule  is  applied  to  mort- 
gages iu  iiwij'l  V.  C'onboj,  12  Iowa,  444;  Ihim- 


sn/'n  Appral,  2  Watts,  22S;  Fowler  v.  Sar/.-s- 
ilale.  Harper  Etj.  1G4;  ^Vrr^^  v.  l.'o.i'll,  32 
Ark.  478;  Dnwes  v.  Cmmn^u<,  32  N.J.  !•>>■.  45G; 
&Vo/<  V.  llVis/cr,  44  Wis.  1S5;  B.-nrtnt  v. 
Si' pheiiti,  58  Ala.  C3G;  ShieliU  v.  Ki/nhmuf/k, 
G4  Ala.  501;  .SVWpy  v.  V.Vdrr,  2:5  Mich.  312; 
Jones  on  Mortgages,  sees.  1G2S-1G;;0. 

Whrre  the  crrdltor  holtlx  tiro  morfrjinp's  for 
the  same  debt,  the  first  upon  the  Luul  of  tlio 
debtor,  the  .second  upon  the  laud  of  the  debtor 
and  his  surety,  and  forecloses  both  at  the  samo 
time:  held,  tlio  iirt,t  must  b-e  exhausted  before 
recourse  to  the  second:  Ilauii  v.  liciinolds,  11 
Cal.  14. 

.See  this  subject  extensively  treated  iu  the 
American  editor's  note  to  Aldrlrh  v.  Cooper,  '2 
Lead.  Cas.  En.,  pt.  1,  p.  255;  aud  see  Joiiei  v. 
ZMicoj}'a\  11  Am,  Dec.  I'do. 


ARTICLE  V. 

EEDEMPTION    FKOM    LIEN. 

29C3.    Txighl  to  redeem. 

Sec.  2903,  Every  person,  having  an  interest  in  property  subject  to  a  lien,.  Las 
a  right  to  redeem  it  from  the  lieu,  at  any  time  after  the  claim  is  due,  and  l^efore 
his  right  of  redemption  is  foreclosed. 

"Who  may  redeem  ia  case  of  mortgage. 
Any  one  n-lio  lias  any  interest  in  the  laml  iiiid 
would  bo  a  Liscr  by  a  foreclosure  may  redeem: 
Jjoqiiel  V.  CoOiirii,  27  i>arb.  2.J0;  Scolt  v.  llenrij, 
13  Ark.   1 12;  Pidt  v.  Squire,  12  J.let.  494. 

Nort'jiKjor  viay  redeem,  even  if  he  have  no 
title:  LorezaiKi  v.  Ciunarido,  45. Cal.  125. 

Tenant  for  years  may  redeem.  The  re- 
demptioner  need  not  have  an  interest  in  foe  in 
the  premises:  Averhl  v.  Taylor,  8  N.  Y.  44; 
lianidton  V.  Dobb^,  19  N,  J.  Eip  227;  Bacon  v. 
Boirdulii,  22  Tick.  401. 

But  the  redemptioner  must  have  either 
the  mortgagor's  title  or  some  subsisting  inter- 
est under  it:  Grant  v.  Duane,  9  Jolnis.  591; 
Chambcrliii  v.  Chamber'iii,4-i  N.  Y.  Super.  Ct. 
IIG;  Boar  man  v.  Catlrtl,  13  Smcd.  &  M.  149; 
Po>ver.-i  v.  (I'o/deii  Lumber  Co.,  4:5  Mich.  4;J3; 
Ma/iier  v.  Giilj  City  Paper  Co.,  G4  Ala.  3:]0; 
iloore  v.  Jieasom,  41  N.  II.  215;  Fowls  v, 
Briiwn,  4  Ired    Ei[.  413, 

Where  one  outei-s  into  a  contract  to  pasture 
imother's  cattle,  and  to  secure  the  fuinUnicnt 
of  the  contr.ict  delivers  a  mortgagj  to  the 
cattle-owner,  and  a  creditor  of  the  cuttle-own- 
er or  UKjrtgagce  levies  upon  aud  sells  suc'.i  cat- 
tle, the  purchaser  at  such  sale  acquires  no 
interest   under    the   mortgage,    aud   therefore 


is  not  entitled  to  redeem  a  prior  mortgage. 
There  was  no  sale  of  the  mortgagee's  interesfc 
in  the  contract  for  pasturage,  and  a  seizure  and 
s  de  of  the  cattle  alone  no  mo?-e  passctl  an 
interest  in  the  contract  than  a  sale  of  the  con- 
tract would  have  passed  the  title  to  the  cattle: 
Abadie  v.  Sohero,  3G  Cal.  390.  See  generally, 
on  wiio  may  redeem,  Jones  ou  Mortgages, 
sec.  1055. 

nedemptioners  from  esseoutioa  sals:  See 
Codj  Civ.  Proc,  sees.  701  ct  seq. 

■Wli,^n  redeinption  may  be  made  "after 
the  claim  is  due:"  Abbe  v.  Goodir'm,  7  Conn. 
377;  Porlri'/hl  v.  Cady,  21  N.  Y.  SV.l;  see 
Moore  v.  Cord,  14  Wis.  213. 

Jlorlijai/e  /laycd/le  on  demand,  or  at  or  lieforo 
a  day  certain,  may  be  redeemed  at  any  time: 
Iji  re  John  and  C/p-rry  Street,  19  Wend.  G59. 

Before  rhyht  of  redempt,io:i  foreeloeil. — Time 
of  redemption  may  by  agreenicnt  be  extended 
beyond  tlio  piriod  wlicu  it  wnnld  othorwiso  bo 
Ijr.rrod  by  foreclosure:  Chtse  v.  Mrfyellen,  49 
Mo.  375;  Daols  v.  Drsback,  81  III.  .Id.);  .Joue.i 
on  M.)rtga.,'es,  sec.  1053;  see  Jones  on  Cliattel 
Mortgiges,  sec.  GS9  a,  G91. 

Pledjor'.-i  right  of  redemption  may  bo  fore- 
closed: Sec.  3J1I,  pott;  see  Code  Civ.  Proc, 
sees.  701-707,  34G,  347. 


2904,    ru//k()<  of  inferior  lienor. 

Sec.  290i,     One  who  has  a  lien  inferior  to  another,  upon  the  same  property, 
lias  a  right: 

1.  To  redeem  the  property  iu  the  same  manner  as  its  owner  might,  from  the 
Bupcrior  lien;  and, 

2.  To  be  subrogated  to  all  the  benefits  of  the  superior  lien,  when  necessary 
for  the  protection  of  his  interests,  upon  .satisfying  the  claim  secui'od  thereby. 

Subd.  1.     Right  of  redomption  by  j.nior     priority  of  the  claimants:  Moore  v.  Beasom,  44 


mortgagee  applies  to  dieds  of  trust  as  well  ;i3 
to  liioiigages  pi-oper:  Wiley  v,  Etvlmj,  47  Ala. 
418;  lU'.ark  v.  Skuw,  57  III,  17;  Uodtjen.  v.  Cat- 
tery, 58  Id.  431. 

Af  bidiueen  .several  pernonn  entitled  to  redeem, 
redemption  will  bo  decreed  according  to  the 


N.  11.  215. 

Whe:i  junior  mortgagee  files  a  bill  to  redeem 
a  fonn-r  mortgage,  he  may  allegn  and  sliow  that 
the  claim  of  the  prior  mortgigie  has  been  ex- 
aggcrateil:  ('(irpeidler  v.  Brenliam.  4)Cd.  221. 

The  holders  of  otiier  notes  secured  by  the 


403 


§-2005 


oi:li;;ations. 


[Div.  Ill,  Taut  IV, 


mortgap;e  have  a  right  to  redeem,  Lnt  when  not 
made  pui-tics  to  the  action,  must  assert  d'n 
right  to  rcilotiiJi  wiLliia  four  years  or  it  is  barred 
by  the  statute  of  hniitations:  (Jratlan  v.  Wl.i- 
(jins,  23  Cal.  lU;  sec  llockcr  v.  Ileus,  IS  Id. 
030. 

Subcl.  2.    Subrogation  to  riglit3  of  supe- 

rior  lienor If  it  were  otherwise,  it  would  he 

inijiossilile  in  a  large  number  of  cases  for  a 
junior  mortgagee  ti)  secure  his  debt,  as  tlie  lir.-t 
mortgagee  i,  ntit  obliged  to  assign  his  mortgage 
on  payment:  /'Uirh.s  v.  Kelly,  3v)  111.  4GJ;  Wnod 
V.  Jlubhanl,  oO  Vt.  82;  Shlmer  v.  Hammond,  ol 
Iowa,  401. 

A  mortgagee  •who  has  paid  a  prior  mortg  vge 
or  other  incumbrance  is  entitled  to  be  repaid 
this  amount  as  well  as  his  own  mortgage,  and 
is  subrogated  to  the  rights  of  the  psior  mort- 
gagee or  incumbrancer,  which  he  himself  would 


ui)t  otherwise  have  possessed:  Ifnrper  v.  Ely, 
70  111.  r>Sl;  Master  v.  Xorton,  S3  Id.  r,19;  Held 
V.  Sah'iii,  20  N.  II.  53.3;  (.rv/j  v.  JJa.iLt,  SJ  Ala. 
311;  Smith  v.  O.s'enveyi  r,  (xi  Ind.  432,  430;  /i'o6- 
iii.-^on  V.  L'yan,  25  N.  Y.  320.  A  joint  mort- 
gagor paying  the  whole  debt  is  subrogated  to 
the  iuterest  of  his  joint  mortgagor  till  he  ia 
repaiil:  Si//ij)sou  v.  il^u-il'nicr,  97    111.  237. 

Mortgages  is  entitled  to  interest  on  monpy 
so  paid:  JJacis  v.  Ueait,  114  iJass.  31/0.  So 
money  advanced  by  mortgagee  to  proti  ct  the 
property  from  injury  or  loss  becomes  a  valid 
ehaige  upon  the  property:  Jt'owan  v.  Sharp's 
H'jle  Mfij.  Co.,  2J  Conn.  2S2;  see  Jones  ou 
Mortgages,  sees.  878,  1060,  11S7.  Sul<i-ogation 
not  allowed  when  unnecessary  and  pn  judicial: 
Jenkins  V.  Conliuental  Ins.  Co.,  12  How,  I'r. 
GG. 


2905.    Redempl  ion  from  lien,  how  vinde. 

Sec.  2D05.  Hedemptiou  from  a  lieu  is  made  by  perforraingf,  or  offering  to 
perform,  tlie  act  for  the  performance  of  which  it  is  a  security,  and  paying,  or 
offering  to  pay,  the  damages,  if  any,  to  which  the  holder  of  the  lien  is  entitled 
for  delay. 


Tender  after  debt  falls  due  doss  not  dis- 
charge the  mortgage  lien.  The  rule  m  tiiis 
state  is  that  a  tender  of  the  amount  due  on  a 
debt  secured  l)y  a  mortgage,  made  after  law 
<lay,  does  not,  ijiso  facto,  discharge  the  lien  of 
the  mortgage:  irnnnielinann  v.  Filzpat rh-k,  aO 
Cal.  GoO,  aliirming  Perre  v.  Cas/ro,  H  Id.  T)!!!. 

In  New  York,  Jlichijan,  and  J/j.s'sow/v'  the 
contrary  rule  prevads,  that  a  tender  made  after 
law  day,  but  before  foreclosure,  effects  a  dis- 
charge of  the  lien,  and  relegates  the  ho  der  of 
the  mortgage  t)  the  personal  responsiliility  of 
his  debtor:  Kortri'jhl  v.  Gady,  21  N.  Y.  313; 
Fevfjuson  V.  Popp,  42  Mich.  115;  Thornton  v. 
Nat.  Exrliaiiijo  Bank,  71  Mo.  221. 


■we  take,  however,  it  ■will  be  unnecessary  no^w 
to  determine  wiiich  view  we  will  follow." 
Since  the  commissioners  wrote  t'.ieir  note 
llimmelmnnn  v.  Filzpntrick  has  been  decided, 
and  the  doctrine  of  Perre  v.  Castro  expressly 
aliirmed.  In  the  latter  case  the  dirttun  of 
Sawyer,  C.  J.,  in  Kelchiim  v.  Crijipen,  37  Cal. 
246,  w-as  brouglit  to  the  attention  of  the  court 
by  the  appellant  in  his  points  and  authorities, 
although  not  mentioned  among  the  appellant's 
citations  by  the  reporter. 

See,  on  this  point,  sec.  1490,  ante. 

But  the  mortgage  being  a  mere  secnrit;/  for  a 
debt,  it  must  follow  tiiat  the  payment  of  the 
debt,    whether    before   or  after   default,    will 


lnIIimmelmannv.Fitzpritrick,supra,thcconvt  operate  as  an  extinguishment  of  t!<e  n)(jrtgage: 
say:  "  We  ilo  not  anticipate  the  serious  consc-  McMdlan  v.  Rlchnrds,  9  Cal.  3G5,  per  Field,  J.; 
quences  sugiestcd  by  a[)pellant  as  the  result  of     Johnson  v.  Sherman,  15  Id.  293. 


an  adlierence  to  the  rule  laid  down  in  Perre 
Castro  neaily  sixteen  years  ago.  *  *  *  In  the 
present  case,  if  the  tender  was  made  in  good 
faith,  and  was  intended  to  be  kept  good,  tiio 
mortgagor  could  have  paid  the  money  into 
court  on  the  commencement  of  a  proceeding  to 
compel  the  mortgagee  to  accept  it,  and  to  sat- 
isfy the  mortgage."  Whether  under  section 
1504,  ante,  a  tender  ■will  not  stop  the  running 
of  interest,  qiirere:  lA. 

In  their  note  to  section  2900,  post,  the  com- 
missioners say:  "  A  tender  of  the  money  duo 
upon  a  mortgage  at  any  time  before  foreclosure 
discharges  tlie  lien,  although  not  made  till 
after  the  day  named  in  the  bond  for  payment;" 
and  they  rely  for  their  opinion  upon  Koriri  /ht 
V.  Cady,  21  N.  Y.  343.  Of  Perre  v.  Cas//-., 
supra,  they  say:  "The  distinction  taken  be- 
tween a  tender  before  and  a  tender  alter  the 
law  day  cannot  be  maintained  on  principle, 
and  the  case  of  Perre  v.  Castro  has  not  been 
approved  by  later  decisions."  Kitchnni  v. 
Crippen,  37  Cil.  223,  per  Sawyer,  C  .!.,  is 
then  cited,  wiierein  the  court  say:  "  Wo  think 
the  reasoning  in  Kortrighl  v.  Cady  xmanswcra- 
ble;  but  in  I'erre  v.  Castro,  14  Cal.  521)  [de- 
cided before  Kortrtglit  v.  Cadij\,  on  which  re- 
spondents rely,  our  predecessors  determined 
the  question  the  other  way.     Under  the  view 


A  creditor  ■who  refuses  a  tender  prop, 
erly  made  converts  the  property,  and  the 
pledgor  may  maintain  trover  or  replevin  there- 
for: Ilad-ins  v.  Kelly,  1  Abb.  Pr.,  N.  S.,  03; 
J!a!l  V.  Stanley,  5  Yerg.  199;  MeCada  v.  Clark, 
55  Ga.  53;  and  the  creditor  also  subjects  him- 
self to  the  chanceof  any  depreciation  which  may 
afterwards  occur.  Thus  he  cannot  recover  the 
dcijt  by  suit  without  making  a  proper  allowance 
for  the  depreciation  of  the  property  since  the 
time  of  the  tender:  Gristcold  v.  Jarkson,  2  Edw. 
Ch.  461;  S.  C,  4  Hill,  522;  Hathaway  v.  Fall 
River  Nat.  B'k,  131  Mass.  14;  JJunrork  v. 
Franklin  Ins.  Co.  114  Id.  1."k5. 

A  party  ■who  has  no  interest  in  tlie  prop- 
erty cannot  make  a  valid  tender  on  his  own 
belialf:  Mahler  v.  Neivliaiier,  32  Cal.   IGS. 

Equity  ■wHl  reli3va  from  a  mistake  in 
redemption. — Wiiere  a  party  redeem ;ng  from 
a  sherilFs  sale  pays  the  wliole  or  part  of  the 
requisite  sum  in  counterfeit  n)oney,  the  re- 
ilemption  is  not  valid,  and  the  purchaser  at 
such  sale  is  entitled  to  be  placed  in  si  itn  <pto 
upon  returning  the  money;  but  if  the  redemp- 
tioner  paid  the  money  under  an  innocent  mis- 
take, ctjuity  will  allow  him  to  ])erfect  the  re- 
demption on  payment  of  <,'(K)d  mo'iey.  with 
iuterest:  Pownull  v.  Hall,  -io  Cal.  189. 


494 


Title  XIV,  Chap,  I.J 


LIENS  TN  GENERAL. 


§§  290J>-2912 


ARTICLE  VI. 

EXTINCTION    OF   LIENS. 

2909.   LiPn  deemed  accessory  to  acl  xchose  ppifurmance  it  secures. 

Sec.  2909.  A  lien  is  to  be  deemed  accessory  to  the  act  for  the  performance  of 
■which  it  is  a  security,  whether  any  person  is  bound  for  such  performance  or 
not,  and  is  extiuguishable  in  like  manner  with  an}'  other  accessoiy  obligation. 

Cbjsct  of  the  section.— Of  tliis  section  the 
code  comiiiissiouera  say:  "A  movt::;aHe  in.'.y  Ije 


made  to  secure  jiayniont  of  a  sum  of  money 
whicli  no  person  assumes  to  pay.  In  sucli  cccse, 
an  olTer  to  pay  the  amount  wouLl,  of  course, 
extinguish  the  lien,  and  yet,  strictly  speakinpr, 
there  is  no  principal  obligation,  since  no  one  is 
bound.  This  section  is  designed  to  make  the 
rules  conceining  accessory  contracts  applicable 
to  all  such  liens."  That  is,  no  one  need  be  per- 
sonally bound.  Of  course  a  debt  must  exist  to 
constitute  a  mortgage,  but  the  jiroperty  alone 
remains  liable:  iSce  Jlenley  v.  JJotaliiirj,  41 
Cal.  22. 


A  mortgage  is  valid  -TO-ithout  any  note  or 
bond,  although  it  purports  to  secure  a  note  or 
bond:  Whltuej  v,  Buchnan,  1.3  Cal.  ;"30; 
MilchiU  V.  Durnham,  44  Me.  2SC;  Goodlnie  v. 
Dei-ricn,  2  Sandf.  C!i.  G30;  Cloitgh  v.  Scwj,  4'J 
Iowa,  111;  see  Flagrj  v.  Afaini,  2  Sumu.  -ISO, 
f^?A;  Bitrgpr  v.  llucjhe^,  5  Ilun,  ISO.  Althougli 
there  be  no  note  or  bo:id,  and  no  time  is  speci- 
fied lor  the  payment  of  tlie  mortgage  debt,  the 
mortgage,  if  given  to  secure  a  debt  that  actu- 
ally exists,  is  valid,  and  may  be  enforced  im- 
mediately: Brooklnrjs  v.  Wlut(i,  49  JNle.  479; 
CarmiU  v.  Duval,  22  Ark.  138. 

Assignment  of  debt:  Sec  sec.  2906,  post. 


2910.    Extinction  by  sale  or  conversion. 

Sec  2910.  The  sale  of  any  j^ropertj'  on  which  there  is  a  lien,  in  satisfaction 
of  the  claim  secured  thereby,  or  in  case  of  personal  property',  its  wrongful  con- 
version by  the  person  holdings  the  lien,  extinguishes  the  lien  thereon. 

Sale  or  conversion  extinguishes  lieu:  See  for  conversinn:  Jarvu  v.  Bodijem,  15  Mass.  3S0; 
Bod'jers  v.  (Jrothe,  ;j3  Pa.  St.   414;  Divis  v.     Stearna  v.  Marsh,  4  Denio,  227;  Ward  v.  Fd- 


Bijrlow,  G2  Id.  242. 

And  a  conversion  of  mortgaged  chattels  is 
pro  Undo  a  £ati.-.faction  of  the  ilebt:  Flare  v. 
Graid,  9  Mich.  42;  Clark  v.  Grijfdh,  2  Bosw. 
60S. 

The  pledgee  may  recoup  or  offset  t])e 
debt  secured  in  an  action  brought  against  him 


lers,  13  :\Iich.  2S1,  2S3;  Beldcn  v.  Ferkhis,lS  111. 
449;  Botieuzwevj  v.  Frazer,  S2  Ind.  342.  Not 
so  when  the  defend;int  has  a  mere  lien  on  the 
chattel  which  he  has  converted:  Jones  on 
Pledges,  sec.  o77.  A  counter-claim  for  a  debt 
not  secured  by  the  jjledge  cannot  Ije  set  up  in 
such  an  action:  Smith  v.  Hall,  G7  N.  Y.  43. 


2911.    Lien  extinguished  by  lapse  of  time  under  statute  of  limitations. 

Sec.  2911.  A  lien  is  extinguished  by  the  lapse  of  the  time  within  which, 
under  the  provisions  of  the  Code  of  Civil  Procedure,  an  action  can  be  brought 
upon  the  principal  obligation. 


Lapse  of  time  e:stin2ii:shing  lien. — "The 
contrary  was  held  in  New  York  as  to  a  mort- 
gage: Frail  V.  Jhi'jrji.us,  29  Barb.  277;  see  U'ci/- 
termlre  v.  U'cdover,  14  N.  Y.  10.  And  as  to  a 
pledge:  Taioitoit  v.  Goforth,  G  Dow.  &  lly.  384; 
Bee  btory  on  Ballm.,  sec.  392.  But  tlic  text  is 
fully  su.-tained  by  the  California  cases:  I/elidin 
V.  Cas/ro,  22  Cal.  100;  McCarlhy  v.  Whitr,  21 
Id.  493;  Lord  v.  Morris,  IS  Id.  4S2;  Lad  v. 
Morrill,  23  Id.  492;  Wormouth  v.  Jlalch,  33  Id. 


121;  Arrivgton  v.  Liscom,  34  Id.  365;  Cunning- 
ham  V.  Hawkins,  24  Id.  403:"  Commissioners' 
note. 

Code  Civ.  Proc,  sees.  335-347. 

A  mortgage  lieu  barred  under  tliis  section 
and  the  sections  of  tlie  Code  of  Civil  Proceil- 
ure  referred  to  is  not  renewed  by  a  renewal  of 
the  note  secured:  Welh  v.  Uarter,  50  Cal.  342; 
see  Jcffcrs  v.  Cook,  53  Id.  147;  see  sec.  2922, 
post,  and  note. 


2912.    Apportionment  of  lien. 

Sec  2912.     The  partial  performance  of  an  act  secured  by  a  lien  does  not 
extinguish  the  lien  upon  any  part  of  the  property  subject  thereto,  even  if  it  is 

divisible. 


A  part  ovTTier  or  tenant  in  common  cannot 
requiie  other  partowners  to  join  him  in  redeem- 
ing from  the  mortgagee,  and  if  he  redeems  alone 
he  must  pay  the  whole  amount  due  on  tlie 
mortgagL-:  JJo'/nel  v.  Coburn,  27  Barb.  230;  lluh- 
bard  V.  A.-^caiinnj  MUl-dam  Co.,  20.  Vt.  402; 
Ta:ihr  v.  Porter,  8  Mass.  355;  Lyon  v.  Bobbins, 
45  Conn.  513. 

A  very  coramion  stipulation  in  mortgages 
is  that  upon  making  certain  payments  to  the 
creditor  certain  portions  of  the  mortgaged 
jpremiies  shall  be  released  from  the  op.uutioa 


of  the  mortgage:  Jones  on  ^lortagcs,  sec.  79. 
Such  covenants  arc  strictly  construed:  Fierre 
V.  Kneel  tnd,  IG  Wis.  G72.  So  of  chattel  mort- 
gages: Clark  V.  Griffith,  2  Bosw.  55S. 

Pledges. — A  renewal  of  a  note  secured  by  a 
pledge  does  not  extinguish  the  debt  or  dischargo 
the  lien:  Collins  v.  Dawl'-i/,  4  Col.  133;  Finney 
V.  Kimpton,  40  Vt.  SO,  83;  Moses  v.  Trice,  21 
Graft.  530;  Dayton  Nat.  B'k  v.  Merchants* 
Nat.  B'k,  37  Ohio  St.  208. 

Sjc  Li.  Rev.  Civ.  Code,  1S70,  p.  376,  arts. 
3103,  31C4j 


495 


15  2913-2D-20 


OBLIGATIOXS. 


[Div.  Ill,  Taet  it. 


2S13.    L'f'K/urafion  of  propfrtij  extirigtiinhen  lien. 

Sec.  2013.  The  voluuturj  restoration  of  property  to  it3  OTvner  bj  the  holder 
of  a  lion  thoreon,  dependent  upon  possession,  extin;:;-iushcs  the  lion  us  to  such 
propert}',  unless  otherwise  agreed  by  the  parties,  and  extinguishes  it,  notwith- 
standing any  such  agreement,  as  to  creditors  of  the  owner  and  persons  subse- 
quently acquiring  a  title  to  the  property,  or  a  lien  thereon,  in  good  faith  and 
for  a  good  consideration.  [Amendmenl,  appruvcd  March  30,  1874;  Amendnietds 
1873-4,  2G0;  look  effect  July  1,  1874.] 


A  voluntary  surrender  of  possession  to  the 
owner  or  iiiiy  a;4ent  of  his  destroys  tlie  lien, 
and  it  cannot  Ite  recovered  by  resuming  pos- 
session: lIeii-!cU  V.  Flint,  7  Cal.  2G4;  Palmtag 
V.  Doutrkh,  59  Id.  154;  3  Parsons  on  Cont.  23S; 
Story  on  Bailm.,  sec.  ;/G4.  Must  be  voluntary: 
TreadweU  v.  Jjavis,  34  Cal.  031;  Jlcwlettv. 
Flint,  7  Id.  2G4;  Tucker  v.  Taylor,  53  bid.  93; 
Robinson  v.  Larrahei',  03  Me.  110;  Nevan  v. 
Roup,  8  Iowa,  207;  Ex  parte  Foster,  2  Stoiy, 
144;  Estey  v.  Cooke,  12  Nev.  270.  Aocideatnl 
recover}'  of  possession  does  not  revive  bailee's 
lien:  J/all  v.  Barrett,  2Q111.  103.  Involuntary 
loss  of  possession  docs  not  divest  lien,  as  where 


Unless  otbsrwi.3e  agreed  by  the  par- 
ties.— Before  the  atiiendniei_it  of  1S74  the  fol- 
lowing was  added  to  the  above  section: 
"  Unless  such  restoration  is  made  to  the  owner 
as  a  mere  eni[)loyce  of  the  holder  of  the  lien, 
or  for  a  merely  transient  purpose,"  whicli,  as  it 
imports  at  least  an  implied  agree;:iciit,  t!ie 
coch)  examiners  evidently  considered  in  this 
respect  mere  surplusage. 

Plc'di/or  miy  be  employed  a-^  ar/eiU  of  pledgee 
to  sell  the  goods,  but  to  render  p'lrch.iser  li- 
able for  amount  of  his  lien  the  pledgee  musfc 
notify  the  purcliaser  before  t!ie  ])ui"chasc 
money  is  paid:   Thayer  v.  Dirii/ht,  1U4   Mass. 


it  has  been  obtained  by  the  wrongful  act  of  the  254;  and  see  Rothermel  v.   Marr,   93   I'a.  St, 

pledgor:    PalmtnQ  v.    Doutrick,    59  Cal.    154;  2S5;  Xotflebolnn  v.  Maas,  3  llobt.  249;  Palm- 

Walcolt  V.  Keith,  22  X.  H.  190;  Bruley  v.  Rose,  tarj  v.  Doidrich,  59  Cal.  154. 
57  Iowa,  051;  Bigelowv.  Heaton.  Surrender  for  special  purpose. — Pledgee  does 

Where  two  jiarties  own  waijons  in  common,  not  lose  his  lien  by  permitting  the  ]ledgor  to 

and  one  jiledges  ids  lialf  to  the  other  for  ad-  have  possession  of  the  property  for  a  s;,ecial 

vances,  if  tlie  pledgee  keeps  the  wagons  on  his  and  limitt-d  purpose,  and  not  merely  for  his 

premises  and  marks  the  same  with  his  name  own  use  ami  benelit:  Palmtar)  v.  Doulrick,  59 

and  exercises  control  over  them,  the  mere  fact  Cal.   154,  Hayes  v.  Riddle,  1  Sandf.  24S;    Way 

that   the   pledgor   is   painting  them  does  not  v.    Davidson,   12   Gray,    405,    400;    Bruley    v. 

show  a  surrender  of  possession  by  the  pledgee  Rose,  57  Iowa,  051,  054;  llutton  v.  Arbeit,  51 


BO  as  to  lot  in  a  creditor  of  the  pledgor:  Waldie 
V.  Doll,  29  Cal  555.  As  to  facto  is:  Duuhur  v. 
Pettee,  1  Daly,  112;  see  Fitzhwjh  v.  Winan,  9 
N.  Y.  559. 

Where  a  portion  of  the  goods  are  delivered  as 
fast  as  completed,  tlie  artisan  lias  a  riglit  to 
retain  the  residue  for  the  whole  value  of  his 
services  under  the  contract:  Morgan  v.  Cong- 
don,  4  N.  Y.  552;  Schmidt  v.  Webb,  9  Wend. 
208;    Paries   v.    I/al/,   2    Pick.   213;    CAn-e  v. 


111.  193;  CJlins  v.  Buck,  03  Me.  459;  see 
Bodenhammer  v.  Neivsom,  5  Jones,  107,  not  ia 
accord  with  best  authorities. 

Creditors  and  subsequent  bona  fide  pur- 
ctiasers. — As  to  these  the  lien  is  extinguislied 
by  any  surrender  of  possession  to  the  owner 
whatever:  Way  v.  Davidson,  12  Cray,  405; 
Bodenhammi'r  v.  Neivsom,  5  Jones,  43;  J/c- 
Farland  v.   Wheeler,  26  Wend.  407. 

The  general  principle  is  tliat  one  wlio  volun- 


Wetmore,  5  Man.  «&  Sel.  ISO;  semble,  McFar-  tarily  allows  personalty  to  piss  into  the  posses- 

landv.   Wheeler,  23  Wend.  403.  sion  of  anotlier  is  bound  by  the  frau  Uilent  acta 

A  third  person  may  act  as  plsd^s-holdei:  of  the  Litter  with  respect  to  the  equiuos  of  nar- 

Secs.  2993,  2993,  post.  ties  dealing  bonajide  and  without  notice:  Id. 


CHAPTER  II. 

JSIOHTGAGE. 
Article  I.    'MoRroAGE.s  ix  General 2920 

II.       ^MORTGAGE-S   OF   ReAL    PROPERTY 2947 

111.    Mortgages  of  Personal  Puoperty 2935 


AETICLE  I. 

MORTGAGES   IN   GENERAL. 

2920.    Mortgage,  what. 

Sec.  2020.     Mortgage  is  a  contract  by  which  apaciflc  property  is  hypothecated 
for  the  performance  of  an  act,  without  the  necessity  of  a  change  of  possession. 


"  Tlie  deSniiioa  of  tlie  test  ia  new.  It  ia 
designed  to  make  a  clear  distinction  between  a 
pledge  ami  a  m  jrtgage,  and  at  tlu'  sa;no  time 
to  avoid  the  idea  of  a  mortgage  being  iu  any 
Benso    a    transfer.      *  Hypothecation '    ia    the 


proper  word  for  t!ie  purpose,  as  it  lias  a  well- 
recognized  meaning  in  the  civil  a:id  admiivilty, 
corrcspDU  liug  precisely  to  tlie  ilosig:i  of  the 
code:  Ssii Staiiiliankv.Slieppn-d,  I3C.  li.  441:" 
From  the  note  of  the  commissioners. 


496 


TiTLS  XIV,  Chap.  II.] 


MORTGAGE. 


§§  2321,  2922 


Chattel  mortgages— Retention  of  possea- 
Bion  by  the:  moitsagor  or  vendor  of  chat- 
tels.— That  this  is^z-JHia/acJe  fraudulent  is  the 
general  rule:  Dlcver  v.  McLaughlin,  2  Wend. 
596;  S.  C,  20  Am.  Dec,  635,  and  note  663; 
Carllf  V.  Leavitt,  15  N.  Y.  120;  BisacUv.  IIop- 
Bm,  15  Am.  Dec.  259;  Ingalls  v.  llcrriclc,  1U8 
Mass.  353;  Mason  v.  Baker,  1  A.  K.  Marsh. 
20S.  In  Pennsylvania  it  is  fraud  per  ae  unless 
retained  in  compliauce  with  some  condition: 
Clow  V.  Woods,  9  Am.  Dec.  346,  and  note  317; 
Babh  V.  Clemson,  13  Id.  6S-4;  McKibhin  v.  JUar- 
tin,  04  Pa.  St.  352. 

Jinle  in  (his  state  in  respect  to  cliattcl  mort- 
gages previous  to  the  code  was  as  follows:  "  No 
mortgage  of  j  ersonal  property  hereafter  made 
shairije  valid  against  any  other  persons  than 
the  parties  thereto,  unless  possession  of  the 
mortgaged  property  be  delivered  to  and  retained 
by  the  mortgagee:"  Laws  1850,  p.  207;   Woods 


V.  Bughey,  29  Cal.  466,  472;  J/eyer  v.  Gorham, 
5  Id.  322;  Quiriaquf  v.  Dennis,  21  Id.  154; 
Ilaclcelt  V.  Manlove,  14  Id.  85;  Cliaffia  v.  Doub, 
Id.  384, 

It  is  obvious,  then,  that  the  above  section 
radically  changes  the  law  rendering  possession 
no  longer  necessary  as  against  subsequent  bona 
Jide  purchase! s  and  the  like.  Tiie  code,  hov/- 
ever,  substitutes,  instead  of  the  actual  posses- 
sion previously  requisite,  the  recording  provis- 
ions cf  sections  2957,  2959,  2902,  2D03,  2965, 
and  29C6. 

Actual  transfer  of  possession  of  personalty 
would  cliaiiLje  it  into  a  pledge:  Sec.  2924.  post. 

Married  woman  may  mortgage  her  sep- 
arate property:  See  Alexander  v.  Boiiton  Co., 
55  Cal.  15,  where  the  husband  joined  sviih  tha 
wife  in  executing  a  mortgage  on  her  separate 
property,  and  where  she  was  held  persunxilly 
liable  for  a  deticieucy. 


2921.  Property  adversely  held  may  be  mortgaged. 

Sec.  2921.     A  mortgage  may  be  created  upon  property  held  adversely  to  tlie 
mortgagor. 
This  provision  is  a  logical  sequence  of  section  2947,  post,  and  section  1047,  ante, 

2922.  To  be  in  writing. 

Sec.  2922.  A  mortgage  can  be  created,  renewed,  or  extended,  onfy  hywv^ 
ing,  executed  with  the  formalities  required  in  the  case  of  a  grant  of  real  prop- 
erty. 

"When  the  debt  has  become  barred  by  creates  an  equitable  mortgage  upon  the  land: 
the  statute  of  limitations,  and  the  mortgage  Dlngley  v.  Bank  of  Ventura,  57  Cal.  437,  in 
lien  isconsequently  discharged  (sec.  2911,  a/(<e),     which  the  ct)urt  say:  ''Tlio  section  quoted  fi-oui 


a  renewal  of  the  evidence  of  the  debt,  i.  e.,  a 
note,  will  not  renew  the  mortgage:  Wells  v. 
liarter,  50  Cal.  342.  In  this  case  the  court 
Bay;  "It  is  this  new  contract  which  gives  the 


the  code,  section  2922,  snpra,  cannot  be  held  to 
deprive  a  court  ui  equity  of  the  power,  in  a 
proper  case,  of  declaring  an  instrument  which 
is  not  a  nwrtaacre  in  form,  one  in  ellcct.     In 


plaintiff  the  right  to  recover  the  amount  of  the  tlie  case   under   consideration,  the  same  deed 

note.     But  the  creation  of  the  new  contract  to  that  conveyed  the  tille  declared  the  lien.     lb 

pay  the  money  did  not  create  a  new  mortgage,  was  in  writing,  supported  by  a  valuable  cousid- 

That   could   only   be  done  in  the    mode   jire-  eration,  aclinowledged  and  recorded.     *     •     ♦ 

scribed   by   section  2922    of    the   Civil   Code,  We  know  of  no  principle  of  law,  statutory  or 

supra.     *     *     *     It  is  plain  that  tiie  agree-  otherwise,  preventing  parties  from  contracting 

ment  indorsed  on  tlienc)te(tho  renewal) doesnot  as  the  j)arties  in  this  case  did,  nor  dj  we  know 

answer  the   requirement  of    this  statute.     It  of  any  reason  why  their  contract  should  not  ba 

makes  no  reference  in  terms  to  the  old  or  to  a  enforced  by  the  courts."     See  sec.  2948,  post, 

new  mortgage,  and  its  language  does  not  ad-  and  note. 


mit  of  an  inference,  even,  that  the  purpose  of 
the  parties  was  to  create  a  new  mortgage,  or  to 
renew  or  extend  the  old  one.  It  is  oljvious 
that  in  view  of  this  provision  of  the  statute,  in 
order  to  create,  renew,  or  extend  a  mortgaga, 
there   must   Ijo   executed,    in   the   mode    pre 


Of  this  seotion  the  code  commiosioners 
say,  citing  Stoddard  v.  11  art,  23  N.  Y.  556: 
"This  section  does  not  recognize  a  mere  de- 
]>osit  of  title  deeds  as  constituting  a  mortgage. 
In  England  the  rule  is  well  cstalilijlicd  and 
familiar  that  an  advance  of  money  upon  a  de- 


scribed, a  written  instrument  showing,  either     posit  of   title  deeds  o;)erate3  as  an  equitable 


by  express  terms  or  by  fair  intendment,  that 
such  was  tlic  intent  of  the  party  to  be 
charged. " 

A  verbal  agreement  for  a  mortgage  lien  is  not 
BUiiicient.  "It  was  not  proven  that  tlic  al- 
leged agreement  was  made  in  writing;  b.it  it 
ap[»carj  tj  have  been  entirely  verlial,  and  Lliere- 
foro  tiio  l!:)ili:ig  that  sueli  agreement  was  m  ido 
is  not  suitained  by  the  evidence;"  citing  tlie 
above  seetio;i:  Porter  v.  Midli-r,  53  Cal.  077; 
and  sec  JejJ'ers  v.  Cook,  53  Id.  15J. 

This  GOjcIoa  dD33  UDi  desrive  a  oouri  of 


mortgage.  Strictly,  it  u  evi  lence  of  a;i  a^'ree- 
ment  to  give  a  mortgage,  which  is  trea'ed  in  a 
court  of  equity  as  a  m;)rtgagc,  and  enforccil  as 
sueli.  In  this  st;ite  there  lias  never  been  any 
sucli  general  })raetice  of  deposing  title  deeds  as 
rc:ider3  it  desirable  to  recognize  the  fact  of  ile- 
posit  as  one  method  of  mortg:vging  tlic  land; 
indejvl,  it  vs  diiiicult  to  see  how,  un.ler  our 
system  of  recording  title  deeds  and  treating 
the  rec.ird  a?  evhlcnce  of  the  title,  sucli  a  prac- 
tice can  o:)tain,  to  any  extent.  If  it  coid  I,  it 
O'.v'Iit  not  t  )b:!c;icour.i'e  1;  since  it  co:itravcncj 


equiiy  of  tiie  power,  ia  a  p^-opar  casj,  of  de-  tiu  p  iliey  of  the  stat'ite  of  frauds,  and  of  thfl 

clariiig  an  iastrameut  which  u  not  a  m  >rtgag3  recDrding  acts.     For  these  reasons,  no  i.icnlion 

in  form  to  be  one  in  ed'ect,  an  1  tlicreiorc  a  deed  i^  made  in  the  text  of  a  deposit  of  decdj  as  a 

conveying  kind,  and  in  express  terms  rese:-ving  mjthod  of  making  a  ujortgage.     Case.s  i:i  v/Iiich 

to  the  grantor  a  lien  to  secure  the  payment  of  such    deposit    is   male    under    circumstances 

two  promissory  notes  for  a  part  of  the  price,  wliich  evince  an  agreement  to  give  a  mort^a^je. 

Civ.  Coue— 32  45>7 


f§  2923,  2024 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


or  create  a  lien  upon  tlie  deed,  arc  left  to  the 
application  of  the  general  rules  relative  to  the 
Bpecilio  perfurmance  of  contracts,  aiul  to  liens. 
As  to  the  present  law  in  New  York  upon  tiiis 
question,  see  Uockivell  v.  I/ohhi/,  2  Sandf.  Ch.  9; 
Moddard  v.  Hart,  23  N.  Y.  5J1;  Maude cilie  v. 
Wdiih,  o  Wiieat.  277.  And  in  support  of  the 
views  here  expressed,  sec  Ex  ])arte  Wlillcbread, 
19  Vos.  209.  No  particular  wor.ls  are  neces- 
sary: Leon  V.  I/ijucra,  13  Gal.  483;  Woodwirth 
V.  Guzman,  1  Id.  203;  IJarroHhel  v.  BarteUe,  7 
Id.  450;  I'olhemus  v.  Trainer,  30  Id.  683." 

Equitable  mortgage  lield  to  be  created  by 
assignment  of  title  deeds  as  security  for  a  debt, 

2923.    Lien  of  a  mortgage,  when  special. 

Sec.  2923.     The  lien  of  a  mortg'age  is  special,   unless  otherwise  expressly 
a^eecl,  and  is  independent  of  possession. 


the  facts  occurring  before  the  code:  fllll  v.  El- 
dred,  49  Cal.  39S.  So  where  a  deed  convoying 
land  in  express  terms  reserves  a  lien  to  the 
grantor  securing  the  payment  of  two  promissory 
notes  for  a  part  of  the  pi  ice,  an  equitable  mort- 
gage was  held  created  tliercby  not  lost  by  as- 
signment of  the  notes:  Dimjlci)  v.  Bank  of  Ven- 
ture, 57  Id.  437;  and  see  Betiis  v.  Townsend,  61 
Id.  .333. 

Description  in  mortgage  by  reference  to  a 
map:  See  Borel  v.  Donohoe,  01  Cal.  447,  where 
parol  evidence  was  necessary  to  help  out  the 
description  in  a  mortgage. 


Possession.— This  is  a  repetition  of  the 
principle  recognized  in  section  2929,  ante,  and  iu 
Nag!e  v.  Macy,  9  Cal.  42G;  Fo'iarly  v.  Sawyer, 
17  Id.  589;  Dutton  v.  Warschauer,  21  Id.  009; 
Kidd  v.  Tecple,  22  Id.  255;  Jackson  v.  Lodije, 
36  Id.  28;  Uaynor  v.  Lyon.^,  37  Id.  452. 

Contrary  doctrine  formerly  held  as  to  cliat- 
iel  mortgages:    Wilson  v.  Ilrann'tn,  27  Id.  258; 

j'Jleiylad  v.  Badger,  35  Id.  404;  see  note,  "  Chat- 

t-tel  Mortgages,"  sec.  2920,  ante. 


Mortgagee  in  possession  is  accountable 
for  nothing  more  than  the  actual  rents  and 
profits  received,  or  what  with  reasonable  at- 
tention he  ought  to  have  received:  Murdock  v. 
Clark,  59  Cal.  083.  He  has  no  power  to  make 
expensive  improvements,  but  may  make  re- 
pairs necessary  to  preserve  the  property  from 
ordinary  wear  and  tear:  Bcckman  v.  ]i'Uson, 
01  Id.  .3.35. 

Special  lien.  —For  definition,  see  sec.  2875. 


'2924.    Transfer  of  interest,  ivhen  deemed  a  mortgage. 

Sec.  2924.  Every  transfer  of  an  interest  in  property,  other  than  in  trust, 
made  only  as  a  security  for  the  performance  of  another  act,  is  to  be  deemed  a 
mortgage,  except  when  in  the  case  of  personal  property  it  is  accompanied  by 
actual  change  of  possession,  in  which  case  it  is  deemed  a  pledge.  [Amendment ^ 
approved  March  30,  1874;  Amendments  1873-4,  2G0;  took  effect  July  1,  1874.] 

Deed  absolute  on  its  faoe,  ■when  a  mort-    mortgage,  is  a  question  of  intention  to  be  in- 


gago:  See  sees.  2921,  2950.  That  parol  evi- 
•lenoe  is  admissible  to  show  that  a  deed  absolute 
on  its  face  is  a  mortgage,  see  the  cases  cited 
below. 

The  deed  and  defeasance  mast  be  between 
the  same  parties:  Low  v.  llenrij,  9  Cal.  538; 
and  the  criterion  will   be  whether  tliere  is  a 


ferred  from  all  the  facts  and  circumstances  of 
the  transaction  in  which  the  deed  was  executed, 
taken  in  connection  with  the  conduct  of  the 
parties  after  its  execution.  In  sucli  cases,  the 
central  fact  to  be  found  is  the  existence  of  au 
indebtedness  at  the  time  of  the  transaction, 
and  a  continuation  of  tiie  relation  of  debtor 


Bul)S!scing  and  continuing  debt  from  the  grantor    and  creditor.     If  that  fact  bo  found,  the  infer- 
"  -  ■  ence  deducible  from  it  is  that  the  dued  was  not 

made  to  transfer  the  title  to  the  land  described 
in  it,  but  was  made  for  the  purpo.-^e  of  securing 
the  debt  which  the  grantor  owed  to  tho 
grantee."  Same  as  to  cliatfcel  mortgages:  Moore 
V.  Murdock,  23  Id.  514;  see  Mabnry  v.  A'cJa. 
53  Id.  11.  A  deed,  absolute  in  form,  intended 
as  a  mortgage  is  to  bi;  construe  I  as  a  mortgage, 
and  does  not  constitute  an  al>audonnicnt  of  the 
liomestead.  Also  Bettis  v.  'J'oivnseiid,  01  Id. 
333,  where  the  court  held  a  d<.ed  absolute  v\ 
form  a  mortgage,  and  held  that  the  mortgagor 
might  recover  from  the  mortgagee,  after  tlio 
latter  had  sold  the  property,  the  surplus  which 
tlie  latter  received  on  the  s:de  above  tiie  amount 
secured  by  the  mortgage. 

Evidenoa  that  deed  a  mortgage.  —  Tho 
evidence  to  show  that  absolute  <leed  an  1  defea- 
sance was  intended  as  a  mortgage  should  be  so 
clear  as  to  leave  no  doubt  as  to  tho  real  inten- 
tion of  the  parties:  Henley  v.  Ilola^lng,  41  Cal. 
22;  llop-per  v.  Jones,  29  Id.  IS;  and  see  supra 
herein  as  to  parol  evidence. 
Transfer  of  personalty  a  plsdgo. — Of  this 


to  the  grantee:  Farmer  \.  Gro>ie,  42  Id.  109; 
Jones  V.  Gardner,  58  Id.  Oil;  Uickox  v.  Love, 
10  Id.  197;  Par/e  v.l'Uhic,  42  Id.  75;  Lodge 
V.  Turman,  24  Id.  385;  >Sear^  v.  Dixon,  33  Id. 
326;  Knhn  v.  Biompp,  40  I<1.  299;  Morris  v. 
Angle,  43  Id.  236;  Montgomry  v.  Sp'ct,  55  Itl. 
352;  People  v.  Irwin,  14  Id.  423;  Ford  v.  Irwin, 
18  Id.  117;  chattel  mortgage:  Moore  v.  Marilock, 
26  Id.  514;  parol  evidence  is  admissible  to 
determine  this:  Farmer  v.  Grose,  42  Id.  109; 
Taylor  v.  McLain,  04  Id.  513:  at  law  as  well 
as  in  equity:  Jaclcson  v.  Lodge,  30  Id.  28; 
Vance  v.  Lincoln,  38  Id.  580;  Grcni  v.  Ihnnillon, 
33  III.  080;  Raynor  v.  Lyons,  37  Id.  452;  Tay- 
lor V.  MrLain,  supra. 

Legal  title  not  naces^arily  conveyed  by 
an  aosolute  deed. — It  has  been  held  that  an 
absolute  deed,  though  shown  by  parol  evidence 
to  have  been  intended  as  a  mortgage,  conveys 
the  legal  title:  Hughes  v.  Dacls,  40  Cal.  117; 
on  the  autliority  of  which,  Espinosa  v.  Gregory, 
40  Id.  58,  to  the  same  effect.  But  iu  Mont- 
gomery V.  Sped,  55  Id.  352,  the  court,  without, 
however,  referring  to  these  cases  on  this  point. 


decides  in  effect  that  a  deed  absolute  in  form  portion  of  the  section  the  commissioners  say: 
docs  not  necessarily  transfer  title.  Tlie  court  "  It  is  intended  by  the  exception  made,  which 
4ay:  "  Whether  a  deed  absolute  iu  form  be  a    in  some  respects  involves  a  material  alteration 

498 


Title  XIV,  Chap.  II.] 


MORTGAGE. 


§§  2925,  2026 


of  the  law,  to  relieve  chattel  mortgages,  ac- 
companied witli  a  genuine  cliange  of  posses- 
sion, from  the  necessity  of  recordation,  and  to 
prevent  the  frauds  against  which  the  statute 
requiring  t'.ie  recordation  of  mortgages  was 
aimtil  l.y  subjecting  such  mortgages  to  the 
law  of  pledge,  by  which  it  is  clear  that  they 
ought  to  1)0  governed." 

Sec  an  application  <if  this  clause  of  this  sec- 
tion in  Sonoma  I'.  Bank  v.  //iK,  59  Cal.  107. 

*'Otlicr  than  in  trust.' — This  clause  was 
introduced  liy  the  code  examiners. 

D:  ccl  of  trust,  given  to  secure  a  note,  and 
au'horizing  the  trustee  to  sell  the  land  at 
public  auction,  and  cxeinite  to  the  purchaser  a 
good  an!  sutficient  deed  of  the  same,  upon  de- 
fault in  paying  the  note  or  interest  as  it  falls 
due,  and  out  of  the  proceeds  to  satisfy  the 
trust  generally,  and  to  render  the  surplus  to 
the  giantor,  etc.,  the  trustee  not  being  the  cred- 
itor, but  a  third  party,  is  not  a  mortgage  requir- 
ing judicial  sale:  Koch  v.  Dri'ji/t,  14  Cal.  "230; 
(Jraiil  V.  Burr,  54  Id.  298;  see  also  Burr  v. 
Schroalr,  32  Id.  CIO;  Green  v.  Butler,  23  Id. 
59o;  N.  <t-  P.  R.  n.  V.  Supr.  Ct.  of  San  Fran- 
cisco, 5')  Id.  453;  Baternan  v.  Burr,  57  Id.  480; 
DurLin  V.  Burr,  60  Id.  300. 

Geueritlly  in  those  stuCes  tvhere  the  "  lien  the- 
ory "  oj'  mortgages  jyrevails,  such  trust  deed  is 


held,  like  a  mortgage,  not  to  convey  the  legal 
title;  such  being  the  decisions  in  Iowa,  Ne- 
braska, Kansas,  and  Texas:  Jones  on  Mort* 
gages,  sec.  17G9.  But  in  this  state  and  in  I'lor- 
ida,  Sontti'r  v.  Miller,  l.">  Ha.  025,  and  perhaps 
in  other  states,  it  is  hcl  1  that  the  trust  deed 
vests  the  legal  title  in  the  trustee:  Koch  v. 
iZ/vV/f/s  14  Cal.  250;  Grant  v.  Burr,  54  Id.  208. 

Tlierefore  equity  will  not  enjoin  the  trustee, 
to  whom  the  title  has  passed,  from  selling  the 
land  to  pay  the  debt,  although  the  statutory 
time  for  bringing  an  action  upon  such  debt  has 
expired:  Grant  v.  Burr,  54  Cal.  298. 

Merger  of  mortgage. — A  mortgage  is 
not  merged  by  the  conveyance  of  the  land 
from  the  mortgagor  to  the  mortgagee  vv  here 
there  is  an  intervening  mortgnge:  Brooti  v. 
Bice,  50  Cal.  428;  Bumpp  v.  Gerkena,  59  Id. 
49G. 

Equitable  mortgage:  See  note  to  sec.  2922. 

Default  in  payment  of  interest  or  taxes. 
The  mortgagee  may  delay  foreclosing  for  de- 
fault in  payment  of  interest;  he  is  not  oljliged 
to  take  advantage  of  the  priv'lege  at  once: 
Bricke'l  v.  BatclicUbr,  G2  Cal.  02.3.  And  that 
the  right  of  the  mortgagee  to  foreclose  for  non- 
paj'ment  by  the  mortgagor  of  taxes  which  the 
former  pays  and  charges  to  the  latter,  see  the 
same  case. 


2925.  Transfer  made  subject  to  defeasance  may  he  proved. 

Sec.  2925.  The  fact  tLat  a  transfer  was  made  subject  to  defeasance  on  a  con- 
dition may,  for  the  purpose  of  showing  such  transfer  to  be  a  mortgage,  be 
proved  (except  as  against  a  subsequent  purchaser  or  incumbrancer  for  value 
and  without  notice),  though  the  fact  does  not  appear  by  the  terms  of  the  in- 
strument. 

Deed  absolute  on  its  face  a  mortgage:  mortgagee  was  an  innocent  purchaser  without 
See  sees.  2024,  2950,  and  notes.  In  Mahuri/  v.  notice  of  tlie  real  character  of  the  deed  to  lii- 
liulz.  r.S  Cal.  1 1,  which  decides  that  a  grant  of  guera,  he  is  i^rolected,  and  the  homestead  nmst 
a  homct-tead  absolute  in  form,  executed  by  the  be  held  abandoned  as  to  the  plaintiff  in  this 
liusbund  and  wife,  but  intended  as  a  mortgage,  action,"  and  cite  the  abo\e  section, 
docs  not  constitute  an  abandonment  of  the  Recording  defeasance:  See  sec.  2950,  j>osi. 
homestead,  the  court  say:  "If,   however,  the 

2926.  Mortgage,  on  loliat  lien. 

Sec.  292G.  A  mortgage  is  a  lien  upon  everything  that  vrould  pass  by  a  grant 
of  the  property. 

"Witia  respect  to  fixttires,  in  the  opinion  of 

the  auihur  of  the  notes  in  the  Americaa  Decis- 
ions, "  whether  the  controversy  arises  out  of  a 
claim  iiiteq)Oied  by  the  heir,  vcnilee,  or  mort- 
gagee of  the  owner  of  the  fee,  we  think  is  in  most 
cases  immaterial.  The  tnie  test,  we  appre- 
hend, in  either  of  such  cases  is  this:  Was  the 
property  in   controversy  made  a   part  of   the 


treilje  v.  Wood,  3  N.  H.  503;  S.  C,  14  Am.  Dec. 
393;  Chase  v.  Wingate,  G  Rep.  749,  and  the  note 
thereto:  "  Gray  v.  Uoldship,  17  Am.  Dec,  note 
G90. 

Pistures  generally:  See  anie,  sec.  G60. 
Mortgage  lisn  extends  to  all  improve- 
ments  and  repairs  upon  mortgaged  premises, 
although  made  subsecpiently  to  the  execution 
freehold  fur  the  enjoyment  of  the  inheritance?     of  the  mortgage,  whether  made  by  the  mort- 
To  make  it  a  part  of  the  freehold,  there  need     gagor  or  by  a  purchaser  from  him  without  act- 


not  bo  anj' physical  annexation;  the  property 
may  be  attached  with  screws  or  iiingesinsuch  a 
manner  that  its  removal  will  work  no  injury  to 
the  inheritance;  or  it  may  be  that  it  is  retained 
in  its  i)'ace  solely  by  tlie  laws  of  gravitation. 
Thus,  fencing  material  accidentally  or  tempo- 
rarily detached, after  having  been  used  as  apart 
of  a  fence:  Goodrich  v.  Jones,  2  Hill  (X.  Y.), 


ual  notice  of  the  existence  of  the  mortgage: 
Sands  V.  P/eifer,  10  Cal.  258;  iVartin  v.  Beatty, 
54  111.  103;  Bk-e  v.  Dwe'f,  54  Barb.  455;  Whar- 
ton V.  Moore,  84  N.  C.  479. 

iMortgagor,  after  sale  of  mortgaged  premises, 
possesses  no  right  to  despoil  the  property  of  its 
fixtures.  The  deed  of  the  sherilf  takes  eilect 
by  relation  from  the  date  of  the  mortgage  and 


142;  or  placed  along  the  line  of  a  contemplated     passes  fixtures  subsequently  annexed:  Sands  v. 


fence,  but  not  yet  used,  because  the  construc- 
tion of  the  fence  is  not  completed,  has  been 
adjudged  to  be  real  estate:  (.'onLlln  v.  Parson-', 
1  Ciiand.  240;  and  so  has  manure  produced  upon 
a  farm,  even  as  against  a  tenant  thereof:  Kit- 


PjViffer,  10  Cal.  253,  wiiicli  must  be  considered 
as  limited  by  Hid  v.  Gic'in,  51  Id.  47,  to  the 
extent  that  it  relates  back  to  those  fixtures  an- 
nexed after  delivery  of  the  mortgage  and  re- 
maining adLxed  to  the  premisea  at  the  time  of 


499 


§§  2927-2929 


OBLIGATIONS. 


[Div.  Ill,  Pakt  IV, 


foreclosure  and  sale.  Fixtures  severed  from 
the  realty  become  jjersoiuilty:  Scnv/sv.  Pfeijj'cr, 
10  Id.  258;  JJuc/coiit  v.  Sayt,  27  Id.  433;  JJill 
V.  Gwin,  51  Id.  47;  Gardner  v.  Fiiilej/,  l\)  Barb. 
317.  The  authorities  are  divided  on  tliis  jjoint. 
Contra:  JIutchins  v.  Kii>g,  1  Wall,  o."),  59;  Dorr 
V.  Dudderar,  88  111.  107;  Gore  v.  Jenness,  19 
Me.  53. 

Gas-fistures,  -whether  logically  or  not,  have 
generally  been  held,  even  when  attached  by 
the  owner  of  the  fee,  mere  chattels:  JiJonta<jue 
V.  Deid,  10  Rich.  L.  135;  Vaujhni  v.  Jlaldcvian, 
33  Pa.  St.  522;  approved  in  Jarechi  v.  PhUhar- 
nionic  tiociety,  79  Id.  404;  Uoijcrs  v.  Crow,  30 
Iklo.  92;  coidra:  Keehr  v.  Ketier,  31  N.  J.  Eq, 
191.  See  Fratt  v.  WhHtier,  58  Cal.  126.  The 
rule  of  law  that  the  intention  of  the  owner  of 
the  fee  is  of  controlling  importance  is  conlirmed 
and  ajjproved  in  the  recent  cases  of  Arnold  v. 
Crowder,  81  111.  5G;  and  JIulchiiir/s  v.  Master- 
son,  46  Tex.  551;  see  Uawea  v.  Lalhrop,  43  Cal. 
493. 

Growing  crops:  See  sees.  2955,  2972,  and 
note. 


Engine  and  boiler  held  to  be  fixtures:  Mfr- 
ritt  V.  J  add,  11  t'al.  59;  Sands  v.  Pj^ffev,  10 
Id.  258;  McKlenuin  v.  JJeese,  51  Id.  594;  do 
not  liecome  fixtures  if  hired:  J  Jill  v.  Smrald, 
53  Pa.  St.  271;  see  Stell  v.  Pushall,  41  Tex. 
G40;  see  note  sec.  2955,  subd.  3. 

Sign  of  hotel  does  not  make  the  name  a  fix- 
ture:   Woodvard  v.  Lazar,  21  Cal.  448. 

Addition  to  a  house  is  a  fixture:  Uawea  v. 
Lathrop,  38  Cal.  493. 

Extension  of  wharf  beyond  boundary  of 
leased  property  not  a  fixture:  Coburn  v.  Amex, 
52  Cal.  385.  See  generally,  on  fixtures,  note 
to  sec.  GCO,  ante;  Jones  on  Mortgages,  sees.  428 
et  seq.;  note  to  Gray  v.  lloldship,  17  Am.  Dec. 
686. 

Appurtenances. — A  mortgage  of  a  building 
carries  with  it  the  land  on  which  it  stands  and 
which  is  essential  to  its  use,  if  siicli  appears  to 
have  been  the  intention  of  the  parties:  Vi'Uhoii 
V.  Hunter,  14  Wis.  683;  and  see  Whitney  v. 
Olney,  3  Mason,  280;  E.-<tr/  v.  Bakn;  43  Me. 
495;  Doyle  v.  Lord,  64  N.  Y.  433,  436;  Green- 
wood v.  Murdock,  9  Gray,  20. 


2927.    Mortgage  does  not  entitle  mortgagee  to  possession. 

Sec.  2927.  A  mortgage  does  not  entitle  the  mortgagee  to  the  possession  of 
tlie  property,  unless  autliorized  by  the  express  terms  of  the  mortgage;  but  after 
tlie  execution  of  the  mortgage  the  mortgagor  may  agree  to  such  change  of  pos- 
session without  a  new  consideration. 


Ths  interest  of  the  mortgagee  is  not  en- 
larged or  afi'ected  by  the  fact  thai  he  is  in  pos- 
Besoion  under  the  mortgage;  and  after  condi>.ion 
broken,  whether  in  or  out  of  possession,  he  can- 
not convey  the  legal  title,  and  his  deed  as  mort- 
gagee alone  passes  nothing  without  transfer  of 


the  debt:  Dutlon  v.  WarscJiauer,  21  Cal.  609; 
but  see  note,  "  Replevin,"  under  sec.  2926,  su- 
pra; and  Lajlin  v.  Griffiths,  34  Barb.  68,  com- 
mented ui)on;  see  sec.  2802,  note. 

Mortgagee's  possession:   See  sees.  2920, 
2923,  and  notes. 


2928.   Mortgage  not  a  personal  obligation. 

Sec.  2928.  A  mortgage  does  not  bind  the  mortgagor  personally  to  peri'ona 
the  act  for  the  performance  of  which  it  is  a  security,  unless  there  is  an  express 
covenant  therein  to  that  effect. 


Personal  responsibility  of  mortgagor:  See 
Bees.  2390,  2309,  ante,  and  notes,  'iliu  inva- 
lidity of  the  mortgage  does  not  a'dect  tlie  debt 
intended  to  be  sicuied:  >i/iarer  v.  Z».  A'.  <D  A. 
IV.  <L  M.  Co.,  10  Cal.  396.  See  Bidlel  v.  Uriz- 
zolarti,  04  Cal.  354,  for  a  statement  of  the  leg^l 


relation  existing  between  the  mortgagee  and  a 
purchaser  iwmx  t'le  mortgagor  who  assumes  the 
mortgage.  After  a  careful  examination  of  the 
New  York  decisions,  it  is  determined  that  the 
mortgagee  can  avad  himself  of  such  agreement 
only  ou  the  principle  of  subrogation. 


2029.    Waste. 

Sec.  2929.    No  person  whose  interest  is  subject  to  the  lien  of  a  mortgage  may 

do  any  act  which  will  substantially  impair  the  mortgagee's  securit3\ 

Y.  110;  Gardner  v.  Ileartt,  3  Denio,  232;  Lane 
v.  Jlitrhror/j,  14  John-^.  21.3. 

It  will  be  concluded  that  where  the  lien 
theory  obtains,  no  action  of  replevin  will  con- 
sistently lie. 

But  in  Lnflin  v.  Griffiths,  .34  Barb.  58,  it  is 
decided  that  tlio  mort  ;:.T,gec,  if  in  possession  of 
the  property,  tliougli  before  foieclosure,  may 
sustain  an  action  for  the  recovery  of  fixtures 
remo\ed  during  his  p'>ssessio:i  of  the  property, 
o:i  the  groanil  tliat  they  were  taken  from  his 
actual  possession.  That  lie  since  acquired  the 
legal  tlc.c  d.d  not  alter  or  in  any  way  inci-case 
ilia  rights  as  to  the  properly.  "  If  at  the  time 
of  its  ce'zure  ho  had  the  title  (even  a  condi- 
tional one),  that  is  snllicient  to  found  the 
action."  And  in  Sands  v.  P/tiffer,  10  Cal. 
259,  it  is  decided,  pt'r  Field,  J.,  upon  the 
ground  that  the  sheriff's  deed  relates  buck  to 


r.lortrgagee's  romsdy  for  r:moval  of  fi:x- 
tur3o,  aaJ  for  waste.— AV/j/criu.— Under  the 
common-law  system,  the  mortgagee  may  main- 
tain replevin,  his  riglit  of  action  being  based 
upon  his  general  Lgal  ownershii):  Jones  on 
Mortgages,  sees.  453,  OSS;  but  this  is  not  con- 
sistently maiatained  in  soma  states  where  this 
system  prevails;  as  New  Jersey:  Kirsher  v. 
SdiaL,  39  N.  J.  L.  335.  Another  and  c  ncur- 
rent  remedy  is  tliat  of  an  action  for  damages, 
in  which,  upon  the  same  ground,  he  may  re- 
cover the  full  extent  of  the  injiU'v:  Junes 
on  Mortgages,  sec.  4.14,  note  6.  Tliis  latter 
action  also  exists  where  tlio  lien  t'.ieoi-y  of 
mortgages  has  been  a  lo;)tc.!,  but  it  is  not 
maintainable  unless  the  mortgagee  shows  t'lat 
Lis  S'jcnrity  has  been  impaired;  and  the  dum- 
ages  will  be  limited  to  the  losj  he  may  sustain 
upon  his  security:  Van  Pell  v.  AIcGruw,  4  N. 


eoo 


TrTLEXIV,  Chap.  II.] 


MORTGAGE. 


-2032 


the  date  of  the  mortgage,  tlmt  the  purchaser 
at  tlic  sherifl'  's  sale,  after  delivery  of  the  deed, 
may  maiuLain  re[)le\in  for  lixtures  removcil 
alier  foreclosure  aud  before  the  delivery  of  the 
deed. 

And  the  right  to  this  action  must  be  confined 
to  t!;e  rciiioval  during  such  period,  under  the 
modiiication  of  this  decision  made  by  Ui'l  v. 
O'lviii,  51  C'ul.  47,  referred  to  supra.  In  these 
two  c^ses,  then,  it  hiis  been  held  tliat  replevin 
may  be  maintained  even  under  the  lien  theory, 
but  only  upon  the  ground  of  some  sort  of  tiile 
existing  iu  the  mortgagee.  But  when  there  is 
£l  total  abicnce  of  title  in  the  mortgagee,  it  is 
«litiicult  to  see  how  this  action  can  lie.  Thus 
"when  a  fixture,  as,  for  instance,  a  house,  an- 
nexed to  tlio  real  estate  by  the  mortgagor,  is 
p.fterv, ards,  before  the  forecioBure  of  the  niort- 
fjage,  by  him  removed  from  the  premises  and 
bold,  alchough  it  was  pait  of  tlie  mortgaged 
j.-rcmises,  tlie  mortgagee  cannot  recover  it  from 
the  purchaser:"  Jones  on  i.Iortgages,  sec.  433, 
citing  (Jlurl:  v.  Uayhurn,  1  Kan.  261;  I/arrii  v. 
Baa.ioit,  7S  Ky.  5GS;  same  eil'cct,  Bucloat  v. 
iS'ifV'/,  '27  Cal.  4.').');  CitizeKs'  Bank  v.  Kiifpp,  22 
La.  Ann.  117;    Woehler  v.  Endier,  4G  Wis.  301. 

In  case  of  a  cliattcl  mortgage,  where  before 
the  eode.ibotii  the  title  a'.ul  possession  passed  to 
the  mortgagee  (ico  notes  to  sees.  2SSS,  2320,  and 
siic.  2021),  leplcvin  was,  of  course,  sustainable  by 
the  r.'.'rt^agcc:  Strln'jcr  v.  Davis,  M5  Cal.  2o. 

Action  for  daraagos. — But  two  more  reme- 
dies exist  in  favor  of  the  mortgagee  to  protect 
his  security:  action  for  damages,  and  injunc- 
tion to  lestrain  waste. 


In  the  fonncr,  as  Tre  have  seen,  the  measure 
of  damages  will  be  the  loss  sustained  upon  the 
security,  the  action  resting  upon  proof  that 
befoi'e  the  alleged  iujui-y  the  preu.ises  were  of 
sullicient  value  to  pay  the  plaintiff 's  mortgage, 
or  a  part  of  it,  and  that  l»y  reason  of  such 
injury  tb.ey  became  inadequate  to  pay  the 
mortgage  or  that  part  of  it  which  they  were 
originally  capable  of  paying:  Von  PelL  v.  Mc- 
G,aw,  4  N.  Y.  110;  Sdialk  v.  Kimjdei/,  42  N. 
J.  L.  32. 

Damages  are  recoverable  by  the  purchaser 
at  the  sale,  for  injuries  to  the  property  by  the 
tenant  between  such  sale  and  the  delivery  of 
the  deed,  Ijy  section  740  of  the  Code  of  Civil 
Procedure. 

Injunotion  to  restrain  -wasts. — Tliis 
renieily  is  provided  by  sections  70G  and  74-3 
of  the  Code  of  ("\v'\\  Procedure,  to  restrain 
waste  occurring  during  foreclosure  and  until 
conveyance,  but  it  also  exists  during  the 
continuance  of  the  mortgage  lien  before  fore- 
closure. In  the  latter  case,  before  tlie  in- 
junction is  granted,  it  must  be  made  to 
appear  that  tlie  conmiission  of  the  threat- 
ened waste  will  materially'  impair  and  ren- 
der inailef|uate  the  mortgage  security,  and 
that  the  defcnilants  are  insolvent  or  unable  to 
respond  iu  damages  for  the  threatened  injury: 
liohiii.fon  V.  Bn-sill,  24  Cal.  4G7;  BncLoiU  v. 
Str'j'l,  27  Id.  43.');  see  Vandersllce  v.  Kiinj>p,  20 
Ran.  C47,  and  sec.  2020,  post.  It  will  not  bo 
granted  to  restrain  sales  of  the  property  du:-i!!g 
foreclosure  of  the  recorded  mortgage:  See  note, 
sec.  203'2,  2J0t>t. 


£933.    Suhsequenthj  acquired  title  iniires  to  morffjageo. 

Sec.  2Q30.     Title  acquired  b}'  the  mortgagor  subsequent  to  the  execution  of 

the  ii^ortgage  inures  to  the  mortgagee  as  security  for  the  debt  in  like  manner 

as  if  acquired  before  the  execution.     [Amendment,  approved  March  30,  IST-l; 

Amewhnents  1873-4,  2G0;  tnoJc  effect  J ahj  1,  1874.] 

jiasses  merely  as  further  security:  SheTmanv. 
Mcf'nrUui,  57  Id.  507. 
"VJilQa  raortsaso  of  commuaity  property 

v/liioh  she  sub-jCquo'-jtly  iiilioiiuo Under 

the  priueii^.le  stated  in  this  scctio.i,  it  has  been 
held  that  aUhongh  a  mortgage  given  by  tiio 
wife  on  eonimunity  property  creates  no  lien, 
yet  t'.ie  mortgage  is  not  void;  and  if  t'le  luis- 
band  afterwards  dies,  and  the  wife  inherits  the 
property,  the  mortgage  becomes  a  lieu  on  tl:e 
interest  thus  inherited  by  the  wife,  subject  to 
the  payment  of  the  (L'bts  of  the  estate:  l*urry 
v.  K'-Lfij.  52  Cal.  334.  Tlie  same  principle 
holds  in  the  case  of  pledges:  See  sec.  29c>G, 
note. 


Tlifs  rulo  was  early  settled  in  California, 
a  mortgage  in  foe  being  considered  a  suliicieut 
conviyance  iu  fee  to  pass  after-acquired  titles 
without  any  covenant  of  warranty,  as  was  pro- 
vided in  tlie  case  of  conveyances  in  fee  by  the 
thirty-third  section  of  the  conveyance  act  of 
this  state:  Sec.  IICG,  aidt;  Clark  v.  liakfr,  14 
Cal.  012;  Saii  Irancisco  v.  I.awton,  18  Id.  4G.J; 
KlrkaLilc  v.  Larrahec,  31  Id.  455;  Chris/y  v. 
Jhu:a,  31  Id.  54S;  Valkjo  Lnid  Asshi  v. 
Viera,  48  Id.  572.  This  is  one  of  the  incon- 
gruities of  the  lien  tlieory  of  mortgiges:  Sjc 
note,  "  Diirerences,"  etc.,  see.  2888,  aide  The 
inconsistency  is  reconcilable ou  the  theoiy  of  the 
above   section,    that   the    after-acquired   title 


2931.  Foreclosure. 

Sec.  2931.  A  mortgagee  may  foreclose  the  right  of  redemption  of  the  mort- 
gagor in  the  manner  prescribed  b}'  the  Cods  of  Civil  Procedure. 

Foreolosuro  of  mortgago Place  of  trial:  sive:  II.,  sec.  744;  surplus,   how  disposed  of: 

Code   Civ.    Proc,    sec.   3j2;    receiver    may    be  Id.,  see.  727:  iastaduieut  loans:  Id.,   sec.  728; 

ajjpointeil:  Id.,  sec.  504;  proceedings  iu  actions  actions  against  estates:  Id.,  see.  1500. 
for  lorceiosure:  Id.,   sec.  720;    reuiedy  exclu- 

2932.  Power  of  mle. 

Skc.  2932.  A  power  of  sale  may  be  conferred  by  a  morbgiga  upon  the  mort- 
gagee or  any  other  person,  to  h?.  exercised  after  a  breach  of  the  obligatLou  for 
"which  the  mortgage  is  a  security. 

501 


S§  2933-2935 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


Method  of  conducting  sale. — If  the  power 
mak(.':>  no  provi:iio;i  as  to  I'lc  time,  place,  terms 
of  sale,  or  luaniR'r  of  advurtisinj^  it,  and  there 
is  no  statutoiy  provision  to  tliat  efl'ect,  the 
mort'jagce  may  exercise  his  discretion;  and  if 
fairly  exercised,  tlic  sale  will  be  valid:  Olcottv. 
Bjnam,  17  Wall.  44;  though  the  more  prudent 
course  would  be  to  pursue  the  mode  usually 
proviJcil  for  judicial  sales:  Calloway  v.  People'' s 
Bni.l:  of  Udlrfonlalni-,  54  Ga.  441. 

P-Sortja^cs  not  allo.vcd  to  purchase. — 
Lest  thid  power  of  sale  bcco.ue  a  means  of  op- 
pi'cssion,  it  is  generally  held  that  the  mortgagor, 
unless  expressly  permitted,  cannot  himself,  or 
through  an  agent,  become  a  purchaser  at  tlie 
sale:  Roberts  v.  Flnniiir/,  53  III.  19G;  Miclioud 
^.  Girod,  4  How.  50.'>;  J'at/ierford  v.WilUnnfi, 
42  Mo.   IS;  Whileheiul  v.  ilcll-n,  7(3  N.   C.  09. 

But  sucli  purchase  is  not  void,  but  only 
voidable,  on  application,  in  equit}',  of  the 
mortgagor,  within  a  reasonable  time.  The 
legal  title  passes  by  the  sale:  Blockley  v.  Fowler, 

2933.    Poiver  of  altrney  to  execute. 

Sec.  2933.  A  power  of  attorney  to  execute  a  mortgage  must  be  in  writing, 
subscribed,  acknowledged,  or  proved,  certified,  and  recorded  in  like  manner  as 
powers  of  attorjiey  for  grants  of  real  property. 


21  Cal.  326.  The  equity  of  redemption  upoa 
l^urehase  by  the  mortgagee  still  attaches  to  the 
property  in  favor  of  the  mortgagor:  JJenliam  v. 
Sharffor,  2  Id.  .387. 

From  lai)sc  of  time  and  acquiescence  in  the 
possession  of  the  purchaser  the  regularity  of 
the  sale  may  be  presumed:  Stmaoti  v.  Eckmeiii, 

22  Cal.  580. 

Good  title  passes. — "  When  the  sale  is  con- 
ducted in  accordance  with  the  conditions  of  the 
power,  and  is  fairly  made,  a  good  title  will  pasa 
to  the  purchaser  upon  its  consummation  liy  a 
conveyance:  Fojarty  v.  Sawyer,  17  Cal.  594. 
Such  power  includes  power  to  execute  convey- 
ance: Id.  Power  of  sale  is  merely  a  cumula- 
tive remedy,  and  does  not  aifect  the  right  to 
foreclose  in  chancery:  Cormeruis  v.  Geuella,  22 
Id.  IIG. 

Power  of  sale  assl3nable. — Power  of  sale 
is  a  part  of  the  security  and  passes  by  assigu- 
ment  of  the  debt:  Sec.  8u8,  ante. 


provisions  customarily  used  in  the  state  or 
country  where  the  land  is  situated:"  Jones  on 
Mortgages,  sec.  129;  sec.  2319,  ante. 

In  England  powers  of  sale  in  mortgages  are 
so  common  as  to  be  alinost  indispensable; 
therefore,  it  is  there  well  settled  that  a  general 
power  to  mortgage  includes  the  power  to  in- 
sert a  power  of  sale:  Jones  on  Mortgages,  see. 
17Go.  The  sa:ne  principle  was  declared  iu 
HwYdOrt  V.  Troup,  2  Cow.  195;  S.  C. ,  14  Am. 
Dec.  453,  and  note,  in  which  it  is  surmise  1  that; 
this  is  tlie  only  American  case  upon  this  point. 
Of  course  the  custom  must  appear  well  estab- 
lished by  continuous  and  general  usage. 


"Other  provisions  of  this  code  require  pow- 
ers adeeming  real  property  to  be  in  writing,  and 
if  this  chapter  referred  to  mortgages  of  real 
property  alone,  this  section  would  be  unneces- 
s.iry.  \Vere  it  omitteil  iiere  and  placed  under 
the  head  of  mortgages  of  ])ersonal  pro[)erty,  it 
might  be  contemleil  that  the  psiwer  to  execute 
mortgages  of  real  property  could  be  orally  con- 
ferrc.i:"  Commissioners'  note. 

Authorisation!  generally:  See  sec.  2309, 
ante,  and  note. 

Povvcr  of  sale. — "A  power  to  mortgage 
given  i.i  general  terms,  without  specifying  the 
provisions  the  deed  shall  contain,  includes  tlie 
power  to  make  it  in  the  form  and  with   the 

2334.    Record  oj"  assignment  of  mortgage  as  notice. 

Stc.  2934.  An  assignment  of  a  mortgage  may  be  recorded  in  like  manner  a3 
a  mortgage,  and  sucli  record  operates  as  notice  to  all  jjersons  subsequently 
deriving  title  to  the  mortgage  from  the  assignor.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  231;  t  >ok  cjfect  July  1,  1874.] 

Effect  of  reoord. — "The  only  effect  of  re-     title:"  Jones  on  Mortgages,  sec.  474.     There- 


cording  the  assignment  is  to  protect  the  pur- 
chaser against  a  subsequent  sale  of  the  m^irt- 
g:igo  l)y  the  apparent  holder  of  it:  Craie  v. 
'J'anier,  G7  N.  Y.  437;  Van  Kcnren  v.  Cork'ni-^, 
CO  Id.  77.  As  against  subsequent  purchasers 
of  the  premises,  or  Imlders  of  subsequent  mort- 
gages upon  tliem,  the  record  of  a  prior  mort- 
gage ij  suliicieut  notice  of  its  existence,  with- 


fore,  if  the  mortgagee  assigns  the  mortgage, 
then  obtains  a  release  of  the  equity  of  re- 
dem;)tion  from  the  mortgagor,  and  conveys 
all  h:3  right,  title,  anil  interest  to  a  hoiui  fide 
pur^lla3er  without  actual  notice  of  the  mort- 
gage, who  records  his  deeil  ahead  of  the 
assignee  of  tlie  mortgage,  yet  this  imrcliaser 
will    be    charged    wit.li    constructive    notice. 


out  record  of  an  assignoient  of  the  moi'tgage  to  and  be  put  upon  inquiry,  since   the   original 

one  v.'lio  has  pareliascd  it.     T!ie   failure  to  re-  mortgage  still  remains   of    record  ami   unsat- 

cord  the  assignment  dies  not  blot  out  tiic  rec-  isfijd.      He  will  take  sul)ject  to  the  mort(ago 

ord  of  tile  mortgage  ioself:  Camithiil  s'.Vtdder,  in  the  hands  of  the  assignee:   Partly  v.  JJu/d- 

3  Keyes,   174.     If  the  premi-ies  are  conveyed  ijujton,  42  N.  Y.  334;  see  Jones  on  Mortgages, 

to   the  mortgagee  after  he   has   assigned  the  sec.  474;  i.ee  James  v.  Murey,  14  Am.  Due.  512, 

mortgage,  there  is  no  merger  of  the  mortgage  note. 

2935.    WJien  not  notice  to  mortgagor. 

Sec.  2935.  When  the  mortgage  is  executed  as  security  for  money  due,  or  to 
become  due,  on  a  promissory  note,  bond,  or  other  instruaient,  designated  in 
the  mortgage,  the  record  of  the  assignment  of  the  mortgage  is  not,  of  itself, 

502 


Title  XIV,  Chap.  II.] 


MORTGAGE. 


§§  2OC0-2939 


notice  to  a  mortgagor,  Lis  heirs  or  personal  representatives,  so  as  to  invalidate 
any  payment  made  by  them,  or  either  of  them,  to  the  person  holding  such  note, 
bond,  or  other  instrument.  [Amendment,  approved  March  30,  1874;  Amendmenla 
1873-4,  2G1;  took  effect  Juhj  1,  1874.] 

Object     of    this    provisioa — i\Ir.    Jones,     executed  by  the  mortgagee  is  invalid:  Beldcn 
Mortgages,  SCO.  473,  says  that  the  object  of     v.  Meeker,  47  N".  Y.  .307. 

such  statutory  i)rovision  is  to  save  tlie  necessity  To  the  peraon  holding  such  note,  etc.  It 
of  exaniiuing  the  record  every  time  a  payment  hasljceu  held  in  this  state,  upon  the  gi'ound  of 
is  made.      "It  is  argued,  therefore,  that  for  all     the  accessory  nature  of  a  mortgage,  that  a  niort- 


other  purjioses  the  record  of  assignment  is 
notice  even  to  the  mortgagor."  Therefore,  it 
has  been  held,  under  tliese  provisions,  that  tlie 
record  of  an  assignment  of  a  mortgage  is  con- 
structive notice  as  against  a  grantee  of  the 
mort^jagor;  tliat  the  mortgagee  can  no  longer 
deal  with  tlio  mortgaged  interests;  and  a  sub- 
eequent  discharge  or  release  of  the  mortgage 

2936.    3Iort<jagc  pasnes  by  assignment  of  debt. 

Sec.  293G.     The  assignment  of  a  debt  secured  by  mortgage  carries  with  it  the 
security. 


gage  independent  of  the  debt  it  is  given  to  secure 
has  no  assignable  cjualities,  and  tlierefore  tho 
assignee  of  a  mortgage,  wlio  receives  no  assign- 
ment of  the  del>t,  takes  nothing  by  the  assign- 
ment: Polhemux  v.  'J'raiiier,  30  Cal.  035;  Pefcrs 
V.  Jitmesfown  Bridije  Co.,  5  Id.  33 j;  see  also 
next  section. 


See  note,  "To  Person  Holding  Such  Note," 
etc.,  su]iru. 

The  above  rule  is  the  natural  consequence 
of  a  mortgage  being  a  mere  accessory  security. 

In  Urotiu  V.  Ii'«7/.<f,  57  Cal.  304,  no  note 
accompanied  the  mortgage,  which  simply  re- 
cited tiiat  it  was  "to  secure  tlie  payment  of 
the  sum  of  two  thousand  five  hundred  dollars 
indebtedness."  1  he  court  found  there  was  no 
note  and  no  iiidel<tedness,  and  gave  jutlgnicnt 
against  an  assignee  of  tlie  mortgage  who  sought 
to  rcco\er  thereon. 

The  assignment  of  one  of  several  promissory 
notes  secured  by  the  same  mortgage,  in  the 

2S37.    Time  allowed  to  record  mortgage. 

Section  2037  was  repealed  by  act  approved  March  30,  1874;  Amendments  1873-4,  201;  took 
eflect  July  I,  1874. 
See  sec.  858,  aide. 

2938.    IJorfgoge,  how  discharged. 

Sec.  2938.  A  recorded  mortgage  may  be  discharged  b}'  an  entry  in  the  mar- 
gin of  the  record  thereof,  signed  by  the  mortgagee,  or  his  personal  representa- 
tive or  assignee,  achnowledgiog  the  satisfaction  of  the  mortgage  in  the  i:)resence 
of  the  recorder,  who  must  certify  the  acknowledgment  in  form  substantially  as 
follows:  "  Signed  and  acknowledged  before  me,  this day  of ,  in  the 


absence  of  an  agreement  to  the  contrary,  car- 
ries with  it  a  pri)  rata  intiresfc  in  the  security: 
lledmaii  V.  Parriiujtoii,  3  West  Coast  Hep.  SO; 
Graltaii  v.  Wi/gins',  23  Cal.  30. 

The  assignee  sui-cerds  to  the  rights  of  t!n9 
mortgagee  in  covenants  in  tlie  mortgage:  Jitd- 
man  v.  Purrhiiyon.  .sujira. 

Equitable  assignment  of  mortgage  arises 
wlicre  a  third  person  pays  olT  the  mortgigo 
debt  and  takes  a  conv(;yance  of  tlie  premises, 
and  the  mortgage  so  assigned  will  take  prece- 
dence of  a  judgment  creditor  of  tlie  iiiortg.igor 
subsequent  to  tlie  execution  of  the  mortgage: 
McUzen  v.  Shacffcr,  2  West  Coast  Hep.  12G. 


year 


A.  B.,  I'ecorder." 

fied,  is  void  as  against  a  subsequent  morcgagea 
of  the  same  premises  executed  by  the  guardian, 
the  land  boin^  the  p'operty  of  the  allegeil 
guardian:  Aldrl-h  v.  W'lUia,  55  Iil.  81. 

A  power  of  attorney  to  satisfy  a  mortgage 
docs  not  authorize  t'le  agent  to  enter  satisfac- 
tion unless  tho  debt  is  paid:  JJiUchi,i(js  v. 
Clark.  04  Cal.  228. 


Ent  ring  the  clisoharge  of  a  mortgage  by 
the  mortgagee  does  not  of  itself  discharge  the 
debt,  but  on!3'  the  security:  Shencood  v.  Dan- 
bar,  0  Cal.  53.  A  mortgage  unsatistied  upon 
the  record  is  the  subject  of  sale  to  innocent 
parties:  Petcrx  v.  Jamesiown  />.  Co.,  5  Id.  3.)4. 
A  discharge  entered  of  record  by  one  acting  .as 
guardian  for  an  infant,  but  not  having  quali- 

2939.    Same. 

Sec.  2039.  A  recorded  mortgage,  if  not  discharged  as  provided  in  the  pre- 
ceding section,  must  bo  discharged  upon  the  record  by  the  officer  having  custody 
thereof,  on  the  presentation  to  him  of  a  certificate  signed  by  the  mortgagee,  hi* 
personal  representatives  or  assigns,  acknowledged  or  proved  and  certified  aa 
prescribed  by  the  chapter  on  recording  transfers,  stating  that  the  mortgage  haa. 
been  paid,  satisfied,  or  discharged. 

Oral  agreement  for  the  discharge  of  a  mortgage  is  not  binding:  Porter  x.  JTidler,  3  Wes6.: 
Coast  Iicp.  G19. 

503 


id  2940-2&t7  OCLIGATIONS.  [Div.  Ill,  pAr.T  IV 

£940.   Samd. 

Sec.  2940.  A  certificate  of  the  discharf^'e  of  a  Tnort,';^ag"0,  and  the  proof  or 
acknowledgement  thereof,  must  be  recorded  at  length,  and  a  reference  made  in 
the  record  to  the  book  and  pag'e  where  the  mortgage  is  recorded,  and  in  the 
minute  of  the  discharge  made  upon  the  record  of  the  mortgage  to  the  book  aad 
page  where  the  discharge  is  recorded, 

2941.    SnlisfacUon  of  ynorlgarjnsi. 

Sec.  2941.  When  any  mortgage  has  been  satisfied,  the  mortgagee  or  laa 
assignee  must  immediately,  on  the  demand  of  the  mortgagor,  execute,  acknowl- 
edge, and  deliver  to  him  a  certificate  of  the  discharge  thereof,  so  as  to  entitle 
it  to  be  recorded,  or  he  must  enter  satisfaction,  or  cause  satisfaction  of  such 
jnortgage  to  be  entered  of  record;  and  any  mortgagee,  or  assignee  of  sucii 
mortgagee,  who  refuses  to  execute,  acknowledge,  and  deliver  to  the  mortgagor 
the  certificate  of  discharge,  or  to  enter  satisfaction,  or  cause  satisfaction  of  the 
mortgage  to  be  entered,  as  provided  in  this  chapter,  is  liable  to  the  mortgagor, 
or  his  grantee  or  heirs,  for  all  damages  which  he  or  they  may  sustain  by  reason 
of  such  refusal,  and  shall  also  forfeit  to  him  or  them  the  sum  of  one  hundred 
dollars.  [Amendment,  aj)proved  April  15,  1880;.  Amendments  1880,  lU  {JJan.  ed. 
2'G9);  took  effect  immediately.} 

The  forfeiture  cf  one  hundred  dollars  can  he  decreed  only  where  demand  for  certificate  of 
discliarye  is  proved:  See  Richmond  v.  Luttui,  04  Cal.  27o. 

2342.    Provisioi^s  of  tJiis  chapter  do  not  affect  bottomry  or  respondentia. 

Sec.  2942.  Contracts  of  bottomry  or  respondentia,  although  in  the  nature  of 
mortgages,  are  not  affected  by  any  cf  the  provisions  of  this  chapter. 

Eottomry.  See  sec  3017,  j^o^t.  Piospoadentia:  See  sec.  303G.  post. 

ARTICLE  II. 

MORTGAGE  OF  REAL  PROPERTY. 

2947.    IVJiat  real  property  may  be  mortgaged. 

Sec.  2947.  Any  interest  in  real  property  which  is  capable  of  being  transferred 
may  be  mortgaged. 

General  rule. — Mr.  Jones,  Mortgages,  sec.  But  an  interest  in  land  existin'^j  in  possession, 

1.36,  says  of  this  section:  "  The  code  of  Califor-  reversion,  remainder,  by  executory  devise,   or 

nia  stales  the  general  rule  of  law  upon  tliis  sub-  contingent  remainder,  may  be  omveycd,  ami 

ject  in  tlie  provision  that  any  interest  in  real  tlierefore    mortgaged,    the    unvested    interest 

property  which  is  capable  of  being  transferred  passing  by  way' of  estonpel:  Jw-Lkoii  v.  Cad'n, 

may  be  mortgaged.     Such,  for  instance,  is  the  2  Joiuis.  '231;   3  Waslib.   on    Ileal  Prop.,  4th 

interest  of  one  who  holds  au  agreement  or  bond  ed.,  94;    Wd-^onv.   Wilson,  "M  ]>.ir!).  328;  Lire. 

for  title:     Laiighlhi  v.   Urutcy,  2j   Kan.    147;  John  and  Clwrni  Streets,   19  Wend.  Gr/9;    b''^'- 

Bahr  v.  Bishop  HUl  Colony,  45  II.  2o4;  Crane  s'ln  v.  Ras'^,  17  I'la.  GOl;  Jones  on  Mortgages, 

V.  Turner,  7  Hun,  357;   S.  C,  67  N.  Y.  437;  sec.  136. 

Smith  V.  I'aUen,  12  W.  Va.  541;  and  even  the  Pre-emption. — The  rig!it  of  pre-emption  is 

interest  of  one  in  possessi(m  under  a  parol  con-  not  assignable:    Wlutney  \.  B:icLinnn,    13   Cd. 

tract  to  purchase:  Sinclair  v.  Armilar/^;  12  ]>!.  5:)'6;  (Jiiinn   v.    K-nyyn,    33   11.    49;);  but    the 

J.  Eq.  171;    Uull  V.  Sykes,  7  Wis.  449;    Jlwjar  possession  oi  public  land  for  whatever  parpu.ie 

V.  Bndiierd,  44  Vt.  294;  or  the  interest  of  the  takju,  or  the  land    itself,  may  l)e   mortga'^cd, 

holderot  sc'.iool-Iand  certilicates  until  forfeited  and  if  the  mortgagee  gets  no  title  throu,irt!ie 

by  non-fulfdlment  of  the  conditions  of  the  sale:  mortgige,  this  objection  cannot   be  riispd    by 

itdowry  V.  Wood,  12  Wis.  41?,;  Jarvixv.  Dutc/i./'r,  the  man  who  makes  it:    WhUnty  v.  Backmaa, 

16  Id.  307;  or  of  a  certificate  of  stock  in  an  un-  13    Id.  53'J;  bat  if    the  mortgagor  afterw  ir  Is 

1;«3orporated  company  repi-eseuting  an  interest  se'ls  to  another,  who  pre-eniMt^thc  land  and  ob- 

ia  real  esta  e:  Darkee  v.  S/rinr/ham,  8  Id.  1 1."  tains  a  title  from  tlie  United  States,  the  mort- 

C3pabl3    of  belag  traiisisrred :     See  sec.  gago  cannot  l)o  enforci'd  again^;t  the  title  thus 

1045,  «'/'>.     The  heir's  exi)ectancy  in  his  anoes-  acquired  from  tlie   United   Sta'-es,  l)jeause  the 

tor's  estate  is  a   "bare   possibility  uncoupled  pre-cmptor  does  not  deraign  his  from  the  United 

T.ith  an  interest,"  and  hence  not  transferable:  States     tliroiigli    the     person     v/!io     executed 

.2  Washb.  on  LJealProp.,  4th  ed.,  348:  JJ/iri.s  v.  tlie   mortgage:   Iht/t  v.  Sham,  4S   Id.   4,V>.     A 

l!nyd<n,  %  .Mass.  519;  Dart.  v.   Dart,  7  C.mn.  court  of  equity  will  not  set  aside  a  mortv^age 

■£o5;  Bayitr  v.  Conimonw(-allh,'iO  Pa.  St.  37.  ma  le  by  a  .jiiaLiied  pre-eiupt<.r  for  the  reason 

504 


Title  XIV,  Chap.  II.] 


MORTGAGE. 


§§  294S-2950 


that  tlie  statute  prohibits  him  from  perfecting     the  law:    Dcyiffjlas  v.   Gould,  52   Id.   65G;  see 
his  pre-emption  after  he  executes  the  mortgage,     Jouea  ou  Mortgages,  sec.  13G. 
aud  that  lie  gave  the  mortgage  iu  iguorauce  of 

2948.    Form  of  mortgage. 

Sec,  2948.     A  mortgage  of  real  property  may  be  made  in  substantially  the 
following  form: 

This  mortgage,  made  the day  of 

mortgagor,  to  C.  D. ,  of ,  mortgagee,  witnesseth: 


in  the  year ,  by  A.  B.,  of , 


That  the  mortgagor  mortgages  to  the  mortgagee  [here  describe  the  property], 

as  securit}'  for  the  payment  to  him  of dollars,  on  [or  before)  the  day 

of ,  in  the  year ,  with  interest  thereon  [or  as  security  for  the  payment 

of  an  obligation,  describing  it,  etc.).  A.  B. 

rorm  of  mortgage. — No  particular  form  or  its  face,  but  made  in  consideration  of  a  loan  of 
arrangLMnent  C'f  words  is  necessary:  W'ooilirorlh 
V.  Gaziiufii,  1  Cixl.  4S.3;  De  Lioii.  v.  Iliiiiwra,  1,3 
Id.  48.'^;  JJttrudde  v.  Terry,  4.5  CJa.  G21;  Mkhoii 
V.  iMood;/,  20  Miss.  184;  WUroz  v.  Jllorrix,  .3 
Am.  iJcc.  GTS.  But  it  must  be  in  writing:  .Sec. 
29'J2,  and  note;  and  tliun  equity  may  c'cercisc 
its  jui-irtdiction  in  giving  efrocb  to  the  intention 
of  t!io  parties,   as,    for  instance,   in   case  of  a 


..lonev,  witli  a  ilcfeasance  back  to  reassign  upon 
the  payment  of  the  loan  and  interest,  cousti- 
tutes  a  uiortL'age  of  tlie  leasehold:  Potlicmus  v. 
Trahirr,  :^Ohl.  GS.'). 

De~d  absolute  ia  form  construed  as  a 
mortg  >ge:  See  sees.  29:^4,  ante. 

A  description  of  the  premises,  however 
general  it  may  be,  if  by  extrinsio  evidence  it 


written  agreement  to  give  a  niortgage,  or  an     can  bo  made  i)ractically  certa'n  what  property 


imiierfect,  defectively  executed  mortga^.. 
Dnf/'jftl  \.  Rai!Uii,3l  Cal.  .321;  HacoiiU'aU  v. 
Sanxcruiii,  32  Id.  .37G;  J?emviijtoii.  v.  /li  jijins,  54 
Id.  620;  or  in  relieving  from  a  mistake  in  the 
description  of  the  property:  Wooil worth  v.  Gitz- 
viuii,  1  III.  20.3;  De  Leon  v.  Ilvjueni,  15  Id.  4S3. 
The  assignment  of  a  lease  for  ytara,  absolute  on 


it  was  intended  to  cover,  will  be  sullicient  to 
sustain  the  lien:  Wliilney  w  Biiclman,  13  Cal. 
53G;  De  Leon  v.  Hitjncni,  15  Id.  4S3;  llancorl: 
v.  ir«^-o//,  18  Id.  137;  B>'ian  v.  U'KcUly,  32 
Id.  11;  Vooijan  v.  Burlhi'j  JJii's,  121  Mass.  390; 
Tucker  v.  I'leU,  rA  Miss.  191;  DlaLtmore  v. 
Tuber,  22  lud.  4G3. 


aSO.   Defeasance,  to  affect  grant  absolute  on  its  face,  must  be  recorded. 

Section  2949  was  repealed  by  act  approved  ISlarch  30,  1S74;  Auicudmeuts  1^73-4,  2Gi 
effect  July  1,  1S74. 


took 


2G50.    What  must  be  recorded  as  a  mortgage. 

Sec  2950.  "When  a  grant  of  real  property  purports  to  be  an  absolnte  convey- 
ance, but  is  intended  to  be  defeasible  ou  the  performance  of  certain  conditions, 
such  grant  is  not  defeated  or  afiected  as  against  any  person  other  than  the 
grantee  or  his  heirs  or  devisees,  or  persons  having  actual  notice,  unless  an 
instrument  of  defeasance,  duly  executed  and  acknowledged,  shall  have  been 
recorded  in  the  office  of  the  county  recorder  of  the  county  where  the  property 
is  situated. 

Deed  absolute  on  its  face,  -wliea  a  mort- 
gago:  ^^ee  .Mcs.  2924,  2925. 

Icecording  defeasance. — "These  provis- 
ions of  statute  are  only  the  en.actnient  of  a 
principle  thi.t  is  necessarily  deduced  from  the 
genei-al  pfovisiims  of  the  registry  system:" 
Jones  on  Mortgages,  sec.  549.  "  T.ie  equities  of 
the  parties  [mortgagor  and  bona  fide  purchaser 
from  moi-tgagoe]  being  equal,  tlie  [atiparent] 
legal  estat.j  is  allowed  to  prevail,  an. I  a  rule  of 
])olicy  is  at  tlie  same  time  subserved  by  leav- 
ing the  transmission  of  titles  uneinbar'rassed  as 
far   as   practicable,  thus  inspiring  confidence, 


Possession  giving  notice. — In  Drtubennpeck 
V.  JHutt.,  22  Cal.  331,  333,  it  was  held  that 
open  an  1  notori  tus  possession  of  the  mortgagor 
was  .sullicient  to  put  the  bonn  fide  purchaser 
upon  inquiry,  and  charge  him  witli  notice  of 
the  mortgagor's  equity.  But  it  has  since  been 
held  tliat  sucii  possession  is  not  notiro  of  the 
mortgagor's  e(|uity,  bub  only  tends  t.>  prove 
notice,  and  that  a  finding  of  the  lower  court 
that  at  the  date  of  the  conveyance  tiie  mort- 
gagors were  in  possession  of  the  demanded 
premises  does  not  estiililish  notice  against  the 
bona  fde  ))ureliaser:  Pico  v.  (lullardo,  52  Id. 


rather   than    distrust,  in    the    transmission    of     233.     This  (lecisi(m  is  based  upon /'a// v.  .S^cw- 


titles  to  real  estate:"  Per  Bedlield,  C.  J.,  in 
Jlart  V.  Fanner^  .£.•  M.  IJuidc,  33  Vt.  252. 

In  such  case,  ihedefeasance  being  unrecorded, 
the  grante(!  can  of  course  convey  a  good  title 
to  a  bo  1(1  fide  purchaser:  Pien  v.  Galfardo.  52 
Cal.  '2Q'6;' IJadey  V.  Myricfc,  50  Me.  171;  Tu/t.-i 
V.  Tdjileii,  12^  Mass.  380;  see  idiUd  v.  Voin- 
Btuck,  5  Jolius.  Ch.  214. 

Co;upare  with  sec.  2925,  unle. 


vot,  29  Id.  4SG,  which,  although  deciding  that 
the  mere  fact  of  possi'ssion  does  not  furnish  a 
conclusive  presunii)tion  of  notice,  but  that  it 
may  be  rebutted  hy  proof  that  the  bona  fide 
purchaser  lias  pursued  a  due  course  of  inquiry 
without  obtaining  knowledge  of  an  adverse 
title,  yet  goes  furtlier,  and  slates  tiiat  it  is  to  be 
understoad,  "of  coarse,  that  the  open,  notori- 
ous, and  exclusive  possession  of  the  prior  pur- 


505 


§§2051-2955 


OBLIGATIONS. 


[Biv.  Ill,  PAy.r  W, 


chaser  is  suflicient  to  prrt  the  subsequent  pur- 
chaser upon  inquiry,  and  from  that  fact  alono 
notice  of  the  unrecorded  deed  shoukl  Ije  found, 
unless  lie  shows  that  he  pursueil  the  inquiry 
with  proper  diligence,  and  failed  to  attain 
knowledge  of  the  deed,"  and  finally  decides 
that  t'lie  court  Ijelow,  in  disregarding  evidence 
of  the  jiossession  of  the  person  under  whom 
tlie  plaintiff  claimed,  was  in  error,  and  conse- 
quently that  the  judgment  for  the  defendants 
be  reversed.  The  doctrine  of  this  case  as  to 
the  ed'ect  of  open  and  notorious  jiossession  of 
one  holding  adversely  to  the  vendor  is  in  full 
accord  with  the  majority  and  weight  of  author- 
ities: SmtfJi  V.  Yule,  .31  CaL  ISO,  183;  and  hns 
been  repeatedly  affirmed  in  subsequent  Cali- 
fornia cases:  Thorn paoii  v.  Pioche,  4-4  Id.  508, 
616;  see  llcVman  v.  Levy,  55  Id.  117;  and  aee 
next  jiaragraph.  See,  further,  the  note  to  sec. 
19,  ant',  and  to  sec.  1217,  ante. 

"Actual"  notice,  definition  of. — "This 
knowledge  exciting  intjuiry  is  called  by  some 
of  the  authorities  actu:il  notice,  and  by  others 
constructive  notice.  In  either  instance  it  is 
equivalent  to  actual  notice,  as  one  who  has  it  is 
affected  with  the  same  liabilities  as  one  having 
actual  notice:  "  Lodfje  v.  Slmonton,  23  Am.  Dec. 
3G,  note  47.  There  is  a  difference  of  opinion 
as  to  the  meaning  of  the  words  "actual  notice" 
in  these  statutes;  some  autliorities  holding  that 
actual  notice  is  not  implied  from  open  and 
notorious  possession;  others  holding  tliat  when 
a  subsequent  purchaser  has  actual  knowledge 
of  such  acts  as  would  put  a  prudent  man  upon 
inquiry,  and  would,  if  inquired  into  wit!i  ordi- 
nary diligence,  lead  to  the  discovery  of  a  hostile 


title,  this  notice  mnst  be  held  to  be  actual: 
Jones  on  Moj'tgages,  sec.  253,  citing,  as  in  fa- 
vor of  the  first  construction,  Lamh  v.  Pirce, 
113  Mass.  72;  Crassen  v.  Sicovilaud,  22  Ind. 
427,  434;  of  the  second:  Brinkrnnii  v.  Jone'<,  44 
Wis.  498,  510;  Mifijrove  v.  Bon-ser,  5  Or.  313; 
Wilmn  V.  Miller,  10 Iowa,  111;  Maupiiiv.  Em- 
mons, 47  Mo.  304;  Porter  v.  Sevey,  43  ^le. 
519. 

In  this  state  the  doctrine  must  be  considered 
as  firmly  established  (at  least  before  the  decis- 
ion of  Plo  V.  Gallardo,  52  Cal.  20G,  and  the 
apparent  intention  of  this  case  being  to  affirm 
Fiiir  V.  Stevenot,  29  Id.  4SG)  that  open  and 
notorious  possession  of  one  holding  adversely 
to  the  vendor,  if  the  effect  of  such  jiossessioa 
is  not  rebutted  by  evidence  that  tlie  vendee 
prosecuted  inquiries  with  due  diligence  with- 
out obtaining  information  of  an  adverse  title, 
furnishes  sullicient  proof  of  notice  to  render 
the  vendee  not  a  bona  Jide  pxirchaser.  The 
cases  have  not,  however,  design;ite<l  this  notice 
by  the  terms  "actual"  or  "  constructive,"  but 
by  section  19,  ante,  this  notice,  from  knowledge 
of  facts  putting  a  prudent  man  upon  inquiry, 
is  termed  constructive.  In  view  ot  these  facts, 
and  in  the  absence  of  judicial  construction,  it 
is  impossible  to  predicate  the  effect  of  the  word 
"actual"  in  the  above  section.  Upon  the  ef- 
fect of  possession  as  regards  notice,  see  supra 
in  this  note;  Ludlow  v.  Gill,  1  Auk  Dec.  G95; 
Knox  v.  7'hompson,  13  Id.  250;  Srotl  v.  Calla- 
fjher,  16  Id.  512,  and  notes:  also  note  to  Lodge 
v.  SlmoiUon,  23  Am.  Dec.  47;  Jones  on  Mort- 
gages, sees.  253,  579,  580;  and  sec.  3048,  and 
note,  post. 


2951.  Successor  of  estate,  lohen  to  pay  mortgage. 

Section  2951  was  repealed  by  act  approved  ilarch  30,  1874;  Amendments  1873-4,  2G2;  look 
effect  July  1,  1874. 

2952.  Record  of  mortgages. 

Sec.  2052.  Mortgages  of  real  property  may  be  acknowledged  or  proved, 
certified,  and  recorded  in  liko  m.anner  and  with  like  effect  as  grants  thereof. 
[Amendmeid,  approved  March  30, 1874;  Anundinents  1873-4,202;  loolcefcct  July 
1,1874.] 


See  sees.  1169-1172  and  121.3-1217,  ante; 
Pol.  Code,  sees.  70S,  4235,  4245. 

Sales  of  mortgaged  property.— If  the 
mortgage  i^  recorded,  its  lien  cannot  be  affected 
by  sales  of  the  mortgaged  property  pending 
proceedings  to  foreclose  it,  and  therefore  an 
injunction  sliould  not  be  granted  t.)  lestrain 
such  sales,  as  it  could  not  benefit  the  plaintiif, 
and  mig'.it  em'iarrass  the  defendant:  Breoii  v. 
Streliiz,  43  Cal.  645. 

Prior  record  of  subsequent  mortgase. — 


To  entitle  one  to  precedence  who  has  recorded 
his  mortgage  aliead  of  a  i)rior  iuortg:igee,  it  is 
necessary  that  betake  not  only  wiliujut  notice 
of  tlie  prior  mortgage,  but  also  that  lie  gave 
value:  Withers  v.  Little,  56  Cal.  370.  Where 
two  mortgages,  executed  on  the  same  <lay.  are 
recorded  on  different  days,  n.)  presiDuption 
arises  from  priority  of  record  as  to  |irionty  of 
execution:  Walker  v.  Biilfua  lean,  6.3  Id.  312. 
Mortgages  recorded  in  separate  set  of 
books:  Sec.  1171,  ante. 


ARTICLE  III. 

MORTGAGE    OF    PERSONAL    PROPERTY. 

2955.    What  personal  property  may  be  mortgaged. 
Sec  2035.     Mortgages  may  be  made  uj^on  : 

1.  Locomotives,  engines,  and  other  rolling  stock  of  a  railroad; 

2.  Steau:boat  machinery,  the  machinery  used  by  machinists,  foundrymen, 
and  mechanics; 

3.  Steam-engines  and  boilers; 

4.  Mining  machinei'y; 

50a 


2955.  What  Personal  Property  May  Be  Mortgaged.  Mori 
gages  may  be  made  upon  [all  growing  crops,  includm 
grapes  and  fruit,  and  upon  any  and  all  kinds  of  persons 
property,    except   the   following: 

1.  Personal  property  not  capable  of  manual  delivery; 

2.  Articles  of  wearing  apparel  and  personal  adornment; 

3.  The  stock  in  trade  of  a  merchant],  fin  effect  60  dn 
from   and  after  February  20,   1009.      Stats,   V.WK   Chap.   30.' 

Civ.   Code,  190! 


Title  XIV,  Chap.  II.] 


MORTGAGE. 


§§  '-'3oG,  2957 


5.  Priij ting-presses  <anJ  material; 

6.  Professional  libraries; 

7.  Instruments  of  a  surveyor,  physician,  or  dentist; 

8.  Upliolsteiy  and  furniture  u.sed  in  hotels,  lodging  or  boarding  houses, 
■when  mortgaged  to  secure  the  j^urchase  money  of  the  articles  mortgaged; 

9.  Growing  crops; 

10.  Vessels  of  more  than  five  tons  burden; 

11.  Instruments,  negatives,  furniture,  and  fixtures  of  a  photograph  gallery; 

12.  The  machinery,  casks,  pipes,  tubs,  and  utensils  used  in  the  manufacture 

of  wine,  fruit  brandy,  and  fruit  syrup,  or  sugar.     [Ameiuhneiif,  approval  April 

1,  1878;  Amendments  1877-8,  88;  look  cffccl  sixlielh  day  afler  pa.'<sa(je.] 

Chattel  mortgage  generally. — "Where  a 
chattel  inortL^agc  can  be  made  only  upon  uertain 
classes  of  property  S[)eci!ieal!y  mentioned  Ijy 
statute,  to  render  a  niortgnge  valid  it  must  lie 


shown  that  it  embraces  pi'operty  specilied  by 
the  sti;tute:"  Jones  on  Chattel  Mortgiges,  see. 
122.  Thus,  under  the  eighth  subdi\i.-5ion  of  the 
above  section,  an  alle<;atJOii  that  the  2'>roperty 
was  "used  in  furnishing"  is  not  a  sutlicieiitly 
direct  allegation:  Slr'nnjery.  DavU,  .'JOCal.  318. 

In  (JasKuer  v.  Pal'cr-<oi/,  2'3  Cal.  2'J9,  it  was 
held  that  a  chattel  mortgage,  under  the  act  of 
1S57,  was  of  no  validity  except  as  between  the 
parties,  unless  the  provisions  of  the  act  were 
etrict'y  complied  with.  For  an  instance  where 
property  not  falliiig  within  the  above  classes 
was  hclil  not  mortgageable,  see  Glenn  v.  Arnold, 
5GId.  031. 

A  chattel  mortgage,  until  foreclosure,  con vc3'3 
no  title:  Kuowlen  v.  Ihrbert,  3  West  Coast  Kep. 
230  (Or.). 

Subds.  3,  4.  Engines  and  machinery. 
A.,  the  owner  of  a  quartz-mill,  executed  a 
mortgage  on  it  to  I>. ;  subsequently  A.  jnir- 
chaseil  a  steam-engine  and  boiler;  and  to  secure 
the  purchase  money  executed  to  C.  a  chattel 
mort.  a;ie  on  the  same.    A.  then  took  the  engine 


and  iioiler  to  his  mill,  and  placed  them  therein, 
so  that  they  became  party  of  the  realty.  It  was 
held  t.iat  the  mortgage  to  C.  on  the  engine  and 
boiler  had  priority  over  the  mortgage  to  B.: 
'J'ih'irf/x  V.  il/oo/v,  -J.-}  Cal.  23S. 

Subd  0.  Furniture  in  hotsl. — The  furni- 
ture must  be  actually  used  in  a  hotel  or  board- 
ing-house: SlriiKjcr  V.  Daris,  3J  Cal.  318.  Fur- 
niiure  and  fixtures  of  saloons  are  not  includetl 
among  the  property  which  may  be  mortgaged: 
tr'(,siiiter  v.  PcUlcrnon,  23  Id.  '2U'.). 

If  the  chattel  mortgage  on  furniture  in  a 
hotel  includes  other  property,  it  will  be  void: 
l)a!l!r/f  V.  Shicl'h,  03  Cal.  3:]J. 

Suijd.  9.  Mortgage  of  growing  crops: 
See  sec.  2972,  post.  See  J'rrliiin  v.  Kfkcrt,  55 
Cal.  400,  involving  the  (|uestion  as  to  who 
shoulil  bear  a  loss  arising  from  the  transporta- 
tion of  moitgaged  wheat.  This  section  is  cited 
in  HdrctUai  v.  Green,  o?  Id.  2.')4,  to  show  that 
growing  crops  are  jiersonal  property. 

A  mortgage  of  land,  witu  the  rents,  issues, 
and  protits  thereof,  attaches  as  a  lien  to  the 
crop  growing  o:i  the  land  at  the  time  of  fore- 
closure: Montgomery  v.  Merrill,  3  West  Coast 
iiep.  375. 


2856.    Form  of  personal  mortgage. 

Sec.  295G.  A  mortgage  of  personal  property  may  be  made  m  substantially 
the  following  form: 

This  mortgage,  made  the day  of ,  in  the  year ,  by  A.  B. ,  of ,  by 

occupation  a ,  mortgagor,  to  C.  D. ,  of ,  by  occuiDatiou  a ,  mortgagee, 

witnesseth : 

That  the  mortgagor  mortgages  to  the  mortgagee  [here  describe  tlie  property], 

as  security  for  the  payment  to  him  of iloU.irs,  on  [or  befon>|  the day 

of ,  in  the  year ,  with  interest  thereon  [or,  as  security  for  the  payment  of 


A.  B. 

t^ntion  of  the  parties  governs:  See  note  to  sec. 
2;)13.  ante.  Thus,  a  sale  of  pcrsonrd  property 
m  ide  to  secure  an  indel)tcdness  of  the  vendor 
to  t!ie  vendee  makes  the  transaction  a  niort- 
ga;ce:  Moore  v.  M unlock,  20  Id.  514;  and  see 
note,  sec.  2924,  ante. 


a  note  or  obligation,  describing  it,  etc.]. 

Perm. — Under  the  chattel-mortgage  act  of 
1857,  an  "occupation"  stated  as  that  of  "bite 
merchant  of  Pine  (irove,"  etc.,  is  sufficient: 
Lde  V.  Johitson,  15  Cal.  53.  For  a  case  of  de- 
fective execution,  see  Collins  v  Monti/Oiiirn/, 
16  Id.  398.     The  form  is  immaterial;  the  in- 

2957.  WJien  void  as  to  tliird  person. 

Sec.  2957.  A  mortgage  of  personal  property  is  void  as  against  creditors  of 
the  mortgagor  and  subsequent  purchasers  and  incumbrancers  of  the  property 
in  good  faith  and  for  value,  unless: 

1.  It  is  accompanied  by  the  afHdavit  of  all  the  parties  thereto  that  it  is  made 
in  good  faith  and  without  any  design  to  hinder,  delay,  or  defraud  creditors; 

507 


§§  295S-29G0  OBLIGATIONS.  [Div.  Ill,  Part  IV, 

2.  It  is  aclcnowledged  or  proved,  certified,  and  recorded  in  like  manner  as 
grants  of  real  i^roperty. 

Chattel  mortgage  good  between  the  par-  ofTicer,   it  is  not  necessary   that  the  parties 

ties. — Altli<)u;^li  the  nnntgago   does   not  con-  should  sign  the  aflidavit:  LVe  v.  JoIiiihoh,   15 

form  to  rof]nireiiients  of  a  statute  such  as  tlie  Cal.  .O,'},  57.    A  mortgage  of  chattels  williout  the 

above,    relatiug   to    acknowledgment,    record,  aliidavit  required  l>y  statute  is  valid  against  a 

aflidavit,  and  tlie  like,  it  is  valid  lietwcen  tiie  subsequent    puichascr    with    notice    tliat    the 

parties  to  it:  Sli^inirt  v.  Ptutt,    lUl    U.    S.    731;  mortgage  was  made  in  good  laitli  and  for  a  full 

JJacirl/  V.  Maiilorc,  ]4Cal.  Sa;  L<nnn>!  v.  Will-  consideration:  Roberts  v.    CrauJ'ord,  58  N.  H. 

tVt??is,  o'J  Aik.    KJti;   /Jni/Dian  v.  Joii'.t,    7   Huu,  49.). 

238;  Kilhouriie  v.  Fciy,  2J  Ohio  8t.  2G4;  IJa(l</i-r  Subd.  2.    Recording  mortgag2:  See  aeon- 

V.    liaf(ivit(     P.     M.     Co.,    70    111.    .'W'J;     even  strucliou  of  the  recording  jnovisions  of  the  code 

althougli  it  iri  fraudulent  as  to  the  mortgagor's  relative   to   chattel   mortgages,    in   Beraoa   v. 

creditors:   liroirn  v.  W'eho,  20  Oiiio,  o8!);  Good-  Kuii'tii,  G.">  Cid.  550. 

iiifj  V.  mien,  50  N.  11.  400,  40tJ;  Andrews  v.  The  object   of  such   a   provisiou  is   to   pre- 

^htrxhdl,  48  Me.  'IQ.  vent     the     settiug    up    of     secret     mortgages 

"The  statutes  make  such  a  mortgage  void  against,  persons  wUo  may  deal  with  the  niort- 

only  against  i/crsous  other  than  the  parties  to  gagor  on  tiie  f.dth  that  liis  property  is  not  thus 

it,  or  as  to  purchasers,   mortgagees,  and  cred-  incumbered.     Therefore  in  New  York  it  is  held 

itors  of  the  mortgagor  without  notice.      Tlie  that  when  a  creditor  has  obtaijied  judgment 

only  effect  of  <lelay    in   recording  or   filing    a  and  execution,  but  not  until  then,  he  may  go 

mortgage  is  to  render  it  void  as  against  inter-  back  to  the  origin  of  the  debt  ami  show  that 

vening  purchasers,  or  mortgagees,  or  creditors,  when   it  «as  contracted  the  incuiidjraiice  v/ith 

obtaining    liens  by  attachment,  judgment,    or  which   he  is  then  confronted  was  kept  secret, 

execution:" Jon(sonChattelMortg;igcs,sec.2;)7,  by  being  withheld  from  I'cgistrj-:    'J'homp-oii  v. 

citing  ■•^mkh  v.  Arker,  23  \Vend.''G53;    li'e-ilcoU  Van  I'i'c/Ucn,  27  N.  Y.  5(Jb;   Sli-wurt  v.  Uiat,  7 

V.   Giuni,   4    Duer,    107;  llaymmi  v.  Jouvs,    7  Hun,    405;    Frazrr    v.    G'Uirrt,     11     Id.    G.34; 

Hun,   'JoS;  ^itvi'iison  v.  Broucniwi,  48  111.   78;  Urfirkctl  v.   Harvey,  25  Id.  502;  Clark  v.  QiU 

Gaff\.  llardiiHj,  Id.    148.               '  bert  {C.  1'.,  18S4),  14  Week.  Dig.  241. 

t>ubd.  1.    Aiildavit. — It  sufficiently  appear-  UeronliiKj:  See  sees.  2959,  23Lil-G5,  post,  and 

ing  that  the  alhdavit  was  taken  by  a  competent  note  to  sec.  2924,  ante. 

2958.    Mortgage:  o/ sJnpii,  when  void  a.s  to  tliird  pennons. 

Sec.  2958.  A  mortgage  of  auy  vessel  or  part  of  any  vessel  under  the  flag  of 
the  United  States  is  void  as  against  any  person  (other  than  the  mortgagor,  his 
heirs,  and  devisee,  and  persons  having  actual  notice  thereof),  unless  the  mort- 
gage is  recorded  in  the  office  of  the  collector  of  customs  where  such  vessel  is 
registered  or  enrolled. 

2953.    Where  recorded. 

Sec.  295'J.  A  mortgage  of  personal  property  must  be  recorded  in  the  office  of 
the  county  recorder  of  the  county  in  which  the  mortgagor  resides,  and  also  of 
the  county  in  which  the  property  mortgaged  is  situated,  or  to  whit;h  it  may  be 
removed. 

Mortgagor's  residence. — "Wlien  a  mortgage  If  neither  of  the  partners  resiiles  within  the 
is  made  by  p;utner.s  as  joint  mortgagors,  bat  state,  the  place  of  business  of  the  partnership 
they  reside  in  liiircrunt  towns,  tiie  mortgage  mig'it  be  considered  as  the  prop  r  jil.ice  for  re- 
must  be  recorded  iti  each  of  the  towns  in  which  cording;  and  therefore,  where  one  partner  re- 
they  resile:  Slficitrt  v.  Plitl,  101  U.  S.  731;  sided  without  the  state,  the  morigiige  was 
Jiirh  V.  A'o/«'?V.s,  48  Me.  548;  S.  C,  50  Id.  395.  properly  recorded  at  the  town  wliere  tlie  other 
The  word  "mortgagor"  must  i)e  regarded  as  partner  resided  and  the  business  u  as  carried  on: 
including  "  mortgagoi's:"  Morrill  v,  Saii/ord,  JJiif>har /■■<ton  LamhprCo.  \-.Coi'frt.^,')},ln:h.'2.'ti. 
49  Id.  5G6.  Il3cord  in  diiferent  places:  See  see.  5'JU2. 

2960.    Property  in  transit,  where  to  he  recorded. 

Sec  20(10.  For  the  purposes  of  this  article,  property  in  transit  from  the  pos- 
session of  the  mortgagee  to  the  county  of  the  residence  of  the  mortgagor,  or  to 
a  location  for  use,  is,  during  a  reasonable  time  for  such  transportation,  to  be 
taken  as  situated  in  the  county  in  which  the  mortgagor  resides,  or  where  it  is 
intended  to  be  used. 

Property  in  transrt — This  provision  results  where  the  property  mortgaged  is  situated;  and 
from  the  :\\}<)Vii  section,  wiiieh  declares  tiiat  see  also  see.  29G5,  subd.  1 ;  see  also  I'l-rLiiis  v. 
the  mortgage  must  be  recorded  ju  the  county     Eckert,  55  Cal.  400;  aud  note  to  sec.  2^diJ2,  post. 

50S 


TitieXIV,  CuAP.  II.]  MORTGAGE.  §§2001-2067 

2961.    Pr<>pcriy  of  a  common  carrier,  ichcre  to  he  recorded. 

Sec.  29G1.  For  a  like  purpose,  personal  properly  used  in  conducting'  the 
business  of  a  common  carrier  is  to  be  taken  as  situated  in  the  county  in  which 
the  principal  office  or  place  of  business  of  the  carrier  is  located. 

See  note  to  sect  on  29G0,  supra. 

2£62.    liecorded  in  different  placea. 

Sec.  20G2.  A  single  mortgage  of  personal  property,  embracing  sexeral  things? 
of  such  character  or  so  situated  that  by  the  provisions  of  this  article  separate 
mortgages  upon  them  would  be  required  to  be  recorded  in  dififerent  i^laces,  is 
only  valid  iu  respect  to  the  things  as  to  which  it  is  duly  recorded. 

County  wlieie  property  is  situated— Sec-  regards  a  portion  of  the  property  embraced  in 
tion  2S59.— Unuer  a  statute  reciuiring  the  rtc-  it,  is  not  rendered  im.peiativo  as  to  such  prop- 
ord  to  be  m;ule  in  the  county  where  tlie  prop-  erty  by  its  not  being  lecordcd  in  tlie  proper 
erty  is  situated,  a  record  in  another  county  is  ofiiie  as  to  the  other  chattels  desenljcd  in  it: 
iDeH'ccturd:  Plait  w  Stewart .  1.3  Blatchf.  481.  11  uhbard.-^ton  Luinltr  Co.  v.  Coutrl,  35  Mich. 
A  mortgage  recorded  iu  the  proper  odice,  as    254. 

2963.  Personal  mortgage  may  he  recorded. 

Sec.  29G3.  Except  as  it  is  otherv.isc  in  this  article  provided,  mortgages  of 
personal  property  may  be  acknowledged  or  proved,  certified,  and  recorded  iu 
like  manner  and  with  like  efiect  as  grants  of  real  property;  but  they  must  be 
recorded  in  books  kept  for  personal  mortgages  exclusively. 

See  sees.  IlCO-1171,  1213-1217,  and  2057,  subd.  2,  note,  ante. 

2964.  Certified  copies  v\ay  he  recorded,  v:]if'n. 

Sec.  2904.  A  certified  copy  of  a  mortgage  of  personal  property  onco  recorded 
may  be  recorded  in  any  other  county,  and  when  so  recorded,  the  record  thereof 
has  the  same  force  and  effect  as  thoiigh  it  was  of  the  original  mortgage. 

2S65.    Properly  exempt  from  effect  of  mortgn.je,  xelien. 

Sec.  2905.  When  personal  property  mortgaged  is  thereafter  by  the  mort- 
gagor removed  from  the  county  in  which  it  is  situated,  it  is,  except  as  between 
the  parties  to  the  mortgage,  exempted  from  the  operation  thereof,  unless 
either: 

1.  The  mortgagee,  within  thirty  days  after  such  removal,  causes  the  mortgage 
to  be  recorded  iu  the  county  to  which  the  property  has  been  removed;  or, 

2.  The  mortgagee,  within  thirty  days  after  such  removal,  takes  possession  of 
the  proj)erty,  as  prescribed  in  the  next  section. 

2966.    May  he  taken  hy  mortgagee  as  a  ]>Iedge,  ruhen. 

Sec.  29GG.  If  a  mortgagor  voluntarily  removes  or  permits  the  removal  of  the 
mortgaged  property  fi'om  the  county  in  which  it  was  situated  at  the  time  it  wa3 
mortgaged,  the  mortgagee  may  take  possession  and  dispose  of  the  projicrty  as 
a  pledge  for  the  payment  of  the  debt,  though  the  debt  is  not  due. 

2S67.    Ilmv  foreclosed. 

Si-C.  29G7.     A  mortgagee  of  personal  property,  when  the  debt  to  secure  which 

the  mortgage  was  executed  becomes  duo,  may  foreclose  the  mortgagor's  right 

of  redemption  by  a  sale  of  the  property',  made  in  the  manner  and  upon  the 

notice  prescribed  by  the  title  on  "  Pledge,"  or  by  proceedings  under  the  Code 

of  Civil  Procedure. 

Bale  of  plsdgo:  Sec  roc^.  3030ct  scq.,  p-int.  sufTicient  must  a<isign  some  rc.a.son  for  his  alle- 

Actual  uotio3  required:  Sec.   3v)JJ,   /lost.  gatioii.     If  a  sulhcicnt  notice  is  given,  and  the 

A\  hat  is  a  rcasonaUJc  notice  to  the  UDrtgagor  sale  is  bona  Ji  le,  au  absohitc  title  to  the   jirop- 

of  the  tinie  and  place  o.*'  sale  at  auciion  of  per-  erty  passes  to  the  purciiaser:    Wilson  v.  Bran' 

Bonal  propeity  mditgaged  nuist  lie  detcrmineil  nan,  27  Cal.  2r>,S. 

from  all  the  ciicuiiiHlances  of  each  particular        Foreclosure;  Code   Civ.   Proc.,  sees.   726- 

ca.se,  and  he  who  alleges  that  a  uoiice  is  not  728. 

509 


§§  29GS-2072  OBLIGATIONS.  [Div.  Ill,  Part  IV, 

2968.  Morigagp.  properiij  may  he  levied  vpon. 

Sec.  29G8.     Personal  property  mortgaged  may  be  taken  under  attachment  or 
execution  issued  at  the  suit  of  a  creditor  of  the  mortgagor. 

At  common  law. — A   chattel   pawned   or  An  unripe  growing  crop  is  personal  property 

mortgaged  was  not   liable  to  attachment  in  an  not  capalile  of  manual  delivery,  and  an  attach- 

action  against  tlie.  pawnor  or  mortgagor  who  nieut  may  be  levied  upon  it  as  such.    An  attach - 

had  only   an    ecjuitable    interest    in    the  prop-  nient  upon  such  property  in  the  possesion  of 

erty.      Where    there    is    no   legal    right   tliere  the  dctendant  is  suiiiciently  lc\iod  by  serving 

is  no  legal  remedy.     Therefore  it  is  only  uu-  upon   him   copies   of  tlie   wi'it  and   statutory 

der  statutory   authority   that  a   creditor   can  notice;  and  if  the  sheriff  dues  nothing  farther 

reacli  such   property  at  law:   Jones  on  Chat-  until  the  crop  is  ripe,  there  is  no  abandnni.ient 

tel  Mortgages,  sec.  ooo;  iJvans  v,   Warren,  122  of  the  lien,  but  he  may  gather  the  crop,  and 

^lass.   3U3;  Marsh  v.    Jjawrence,  4  Cow.  4G1;  take  it  into   his  actual  custody:  Uavenlas  v. 

Bacon   v.   Kiiniml,  14   ^lich.    201.     Statutory  Grcpn,  bl  Cal.  2.54. 

authority  for  reasons  deducible  from  tlie  above  TIi3  mortgagee's  intsrest,  it  seems  to  be 

statements    is    not   necessary    in    those    states  agreed,  is  not  suljject  to  attachment  or  execu- 

■where  the   mo'-tgigor  is  considered   the   legal  tion;  at  least,  before  default  of  the  mortgagor, 

owner  of  the  property,  as,  for  example,  in  New  or  foreclosure,  i.  e.,  untd  tlie  ownership  vests  in 

York:   Jones  on  Chattel  Mortgages,  sec.  5'J2;  him:  Jones  on  Chattel  Mortgages,  sec.  ilGG;  yaci- 

and  in  this  state.  son  v.   WiUard,  4  Johns.  41;   Tra/ma/l  v.  ^State 

I^vy  of  attaohment  on  growing  crop. —  Bank,  18  Ark.  53;  Prout  v.  Boot,  UG  Mass.  410. 

2969.  Limitations  on  right  of  levy. 

Sec.  29G9.     Before  the  property  is  so  taken,  the  officer  must  pay  or  tender  to 

the  mortgagee  the  amount  of  the  mortgage  debt  and  interest,  or  must  deposit 

the  amount  thereof  with  the  county  clerk  or  treasurer,  payable  to  the  order  of 

the  mortgagee. 

Damasss  for  seizure  without  tend?r.—  mortgagee  is  not  confined  to  his  action  of  tro- 
If  an  otiicer  under  process  seizes  personal  ver  or  replevin:  iroo(/  v.  Frauka,  50  Cal.  217; 
property  mortgaged  without  paying  or  tender-  .see  note,  "Levy,"  etc.,  sec.  29GS,  supra.  See 
ing  the  amount  due,  the  detriment  proximately  further  illustration  of  the  princi]»lo  of  this  sec- 
caused  by  the  seizure  is  not  the  value  of  tiie  tion,  Berxon  v.  Nunan,  03  C;;!.  530. 
property,  but  the  amount  of  the  mortgage  Measure  of  special  owner's  damage  for 
debt;  and  this  detriment  the  officer,  in  seizing  conversion:  See,  post,  sec.  333S. 
the  property,  assumes  to  make  good;  and  the 

2970.  Distribution  of  proceeds  of  sale  under  process. 

Sec.  2070.     When  the  property  thus  taken  is  sold  under  process,  the  officer 
must  api^ly  the  jDroceeds  of  the  sale  as  follows : 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee,  with  interest  from 
the  date  of  such  jjayment;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of  sale  under  execu- 
tion are  applied  in  other  cases. 

2971.  Certain  sections  not  applicable  to  mortgage  of  certain  ships. 

Sec.  2971.  Sections  twenty-nine  hundred  and  fifty-seven,  twenty-nine  hun- 
dred and  fifty-nine,  twenty-nine  hundred  and  sixty,  twenty-nine  hundred  and 
sixty-one,  twent^'-nine  hundred  and  sixty-two,  twenty-nine  hundred  and  sixty- 
three,  twenty-nine  hundred  and  sixty-four,  twenty-nine  hundred  and  sixty-five, . 
and  twentj'-uine  hundred  and  sixty-six  do  not  apply  to  any  mortgage  of  a  ship 
or  part  of  a  ship  under  the  flag  of  the  United  States. 

2972.  Continuance  of  lien  of  mortgage  on  craps. 

Sec.  2972.     The  lien  of  a  mortgage  on  a  growing  crop  continues  on  the  crop 

after   severance,  whether   remaining   in   its   original   state  or  converted   into 

another  product,  so  long  as  the  same  remains  on  the  laud  of  mortgagor.     [Xew 

section,  approved  April  1,1878;  Amendments  1877-8,  89;  look  ejfect  from  passage  ] 

One  can  mortgage  only  his  interest  in  suit  in  ejectment,  tlie  defenrl  mt  mortgages  the 

growing   crops. — Tlierefore   where  a  tenant  growing  crop,  the  mortga^'ce  takes  su reject  to 

mortgages  tlie  whole  crop,  the  mortgagee  takes  the   judgment   rendered    tlicrein,   and   maybe 

subject  t )  the  interest  therein  of  the  laniMonl  evicted   under  a  writ  issued    tlierciimler.      As 

previously  agreed  upon  with  the  tenant:  Sunol  between  him  and  tiio  successful  plaiiititf,  such 

V.  Molloy,  G3  Cal,  309.     So  where,  pending  a  growing  crops  are  part  of   the  lealty,  and   the 

510 


Title  XIV,  Chap.  III.] 


PLEDGE, 


§2936 


mortgagee  is  not  entitled  to  possession  for  the 
purposes  of  harvesting  them:  Ihierstalv,  Muir, 
64  LI.  430. 

Unfler  the  chattel-mortgage  act  of  1857, 
a  mortgage  might  be  made  upon  growing  crops, 
but  was  void  against  subsequent  purchasers 
nnless  the  possession  of  such  crops  was  deliv- 
ered to  the  mortgagee  as  soon  as  thiy  were 
harvested:  Qu'rkique  v.  Demiis,  24  Cal.  154; 
Goodyiar  v.  WilUston,  42  Id.  11;  but  see  Rider 
V.  EJ'jar,  54  Id.  127. 

Future  products. — Even  a  mortgage  of  an 
unplantcd  crop,  or  of  future  products  of  a 
farm,  made  by  one  in  possession  of  land,  as 
owner  or  lessee,  is  generally  regarded  as  valid 
in  law:  Jones  on  Chattel  Mortgages,  sec.  143, 
and  cases  cited. 


The  lessee^f  land,  in  possession  of  the  same, 
may,  before  he  has  planted,  execute  a  valid 
mortgage  on  the  crop  to  be  raised  by  him  tlie 
coming  cropping  season:  Argues  v.  Waason,  51 
Cal.  G-'O. 

But  it  has  been  held  that  the  landlord's  lien 
on  the  crop  for  rent  is  superior  to  that  of  a 
mortgagee:  Watson  v.  Johnson,  33  Aik,  737; 
S(er)i  V.  Simpson,  C2  Ala.  194. 

So  long  as  it  remains  on  the  land. — Grain 
harvested  and  some  three  niili-s  away  from  the 
land  of  the  mortgagor,  where  it  was  grown, 
may  be  seized  on  attachment,  tiie  lien  of  the 
mortgage  on  the  growing  crop  expiring  with  its 
removal  from  the  land  where  giowu:  il'cUermcm 
V.  Giif.ji,  59  Cal.  142;  see  also  Gomljear  v. 
WULUton,  42  Id.  11,  supra,  in  this  note. 


CHAPTER  nX 

PLEDGE. 
2986.   Pledge^  what. 

Sec.  298G.     Pledge  is  a  dqjosit  of  personal  property  by  way  of  security  for 

the  performance  of  another  act. 


TIiG  term  "collateral  security"  has  in 
recent  years  come  into  general  use  to  designate 
a  pledge  of  negotiable  paper,  corpoi  ate  stocks, 
or  other  incorporeal  personalty,  as  distinguislied 
from  a  pledge  of  corporeal  chattels:  Jones  on 
ned^,es.  sec.  1. 

Much  ddijculty  has  sometimes  arisen  in  de- 
termining whether  a  certain  transaction  is  a 
pledge  or  a  chattel  mortgage,  the  fjuestion  gen- 
erally  being   whether  the  title  has  passed  or 


ler  V.  Ortftfshiirg  Dnnl;  34  Am.  Dec.  449,  note 
4ril.  Tl'.ere  may  be  statutory  jiroliibition  of 
the  pledging  of  a  particular  species  of  jn-opertj'. 
Tims  a  1  ledge  of  a  peusion  certificate  is  wholly 
void,  wliatever  be  the  purpose  for  which  it  is 
made:  Act  of  congress,  July  29,  1848;  R.  S., 
sec.  4745;  I'ayne  v.  Woodhall,  U  Duer,  1G9. 

Note  and  jncrt;jage. — When  the  payor  of  a 
note  assigns  to  the  ])ayee,  as  collateral  security 
for  the  payment  of  a  note,  a  note  and  mort- 


not.     In  this  state,  it  has  been  seen,  title  never     gage  given  by  a  tliird  person  to  the  payor,  the 


paiscs  in  case  of  property  conveyed  or  depos- 
ited as  security:  Sec.  28S8,  ante.  And  also, 
whenever  the  possession  of  per.sonal  property 
is  transferred  as  security  only,  it  is  to  be 
treated  as  a  pledge:  Sec.  2987,  post.  And  even 
a  chattel  mortgage,  when  tlie  possession  of  the 
property  nio.tga;_;cd  is  transferred,  becomes  a 
pledge:  Sec.  2J"J4,  commissioners' note;  and  sec. 
2987,  and  note.  The  question  is,  therefore, 
much  siinnlitied,  possession  being  the  criterion. 

'*  When  the  real  ciiaracter  of  the  transaction 
is  maniiested  by  the  language  of  the  parties  to 
the  contract,  disclosing  tiieir  purpose  and  in- 
tention, all  tliat  a  court  has  to  do  is  to  recog- 
nize its  real  and  true  character,  and  to  cai'ry 
into  I  fleet  by  an  appropriate  decree  the  parties' 
declared  intention:"  Wrirjlit  v.  Jioss, 'SQ  Cal. 
414,  42J;  see  Dimrjan  v.  Mutual  B.  L.  J.  Co., 
SSiMd.  242.  252. 

Gubjecta  of  pledge. — Negotiable  paper. — 
In  G  nj  V.  Moss,  34  Cal.  125,  the  court  decided 


payee  liolds  this  note  and  mortgage  as  a  pledge, 
and  an  assignee  of  the  payee  who  receives  the 
note  and  mortgage  upon  the  same  terms  also 
holds  them  as  a  pledge:  Ponre  v.  McElvy,  47 
Cal.  154;  see  further  example  of  pledging  notes 
secured  by  mortgage:  Newtll  v.  Sexton,  Gl  Id. 
G45. 

Certificates  of  stock  may  be  pledged,  and 
if  tiie  owner  so  indorses  them  as  to  give  the 
depositary  apparent  ownership,  the  owner  can- 
not recover  them  from  a  pledgee  without  first 
paying  the  amount  of  the  pledge:  Ambrose  v. 
Erans,  4  West  Coast  Eep.  297;  see  also  note  to 
sec.  324,  a7ite. 

A  /case  assigned  as  security  is  a  pledge,  and 
the  pledgee  does  not  take  the  legal  title  by  the 
assignment,  but  he  may  co^eet  rents  and  ap- 
ply them  on  the  debt  secured,  an<l  he  is  res])on- 
sible  for  the  surplus:  Dewey  v.  Bowman,  8  Cal. 
145. 

Wagons. — One   may  pledge   his  interest   in 


that  a  chose  in  action  assigned  as  security  for  a  wagons  which  he  has  shared  in  constructing: 
debt  constitutes  a  pledge,  as  distinguished  from  Watilie  v.  Doll,  29  Cal.  555. 
a  cha'.  tel  mort  ;age.  \i\xtin  Donoliiie  v.  Gam-  After-acquired  title. — One  assuming  to  be  an 
hie,  33  Id.  310,  some  doubt  was  exhibited  owner  of  personal  property,  and  as  such  pledg- 
whether,  under  sucii  circumstances,  negotiable  ing  property,  is  afterwards  estopped  from  as- 
paper  c;iuld  be  considered  as  pledged;  and  ulti-  serting  that  he  did  not  own  it;  and  if  he  after- 
mately  decided  that  under  special  eircum-  wards  acquires  title,  it  inures  to  the  benefit  of 
stances,  such  as  the  maker  of  the  note  residing  the  pledgee,  as  between  the  jiarties  to  the  con- 
in  a  foreign  state  or  country,  and  having  no  tract:  Goldstein  v.  llort,  39  Cal.  372. 


leviable  property  iu  this  state,  a  court  of  ctiuity 
has  power  to  decree  a  sale  of  the  instrument. 

That  suc'.i  property  may  be  pledged  is  well 
Bettled:  Jones  on  Pledges,  sees.  80  et  scq.;  and 
appears  to  ba  recognized  by  sec.  300G,  post ; 
see,  as  to  ri^j'hta  and  duties  of  such  pledgee,  Mil- 


Advances  on  pledges  must  be  paid  from  pro- 
ceeds of  specilic  pledged  jiropcrty,  and  that 
first  made  to  be  first  paid:  Marzion  v,  Pioche, 
8  Cal.  522. 

Increasa  of  property  pledged:  Sec  2989, 
infra. 


511 


§§  29S7-2991 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


2987.    ^]^lr7l  contract  is  to  be  deemed  a  j)h'dge. 

Sec.  2987.     Every  contract  by  which  the  possession  of  personal  property  is 
transferred  as  security  only  is  to  be  deemed  a  pledge. 


Constritction  of  section. — "This  section 
places  every  iii()itya<,'e  of  jieisonal  property, 
accompanied  hy  a  clian;^e  of  i)ossc'ssioii,  upon 
the  same  footing  with  a  pledge.  This  is  in  ac- 
cordance with  the  rule  of  the  civil  law,  and 
will  greatly  .simplify  the  law  in  respect  to 
pledges  and  mortgages:  See  Stoi-y's  Kq.  Jnr. , 
Bee.  lO'Jo;  Code  Napoleon,  sees.  2071,  2117.     It 


was  held  in  the  case  of  Pnyve.  v.  Buifilpy.  8 
Cal.  2G7,  that  a  ]dcdge  of  pcr.sonal  propii-ty  is 
a  'mortgage'  within  tlie  meaning  of  the  'at- 
tachment act,'  the  word  heing  there  i:seil  in  ita 
most  general  signilicatiou,  meaning  'security.'" 
Commissioners'  note. 

See  note,   sec.    2986,   supra,  and  note,  sec. 
2924,  ante. 


2S88.    Diilvery  essential  to  validily  of  pledge. 

Sec.  2988.  The  lien  of  a  pledge  is  dejoendent  on  possession,  and  no  pledge 
is  valid  until  the  property  pledged  is  delivered  to  the  jjledgee,  or  to  a  pledga 
bolder,  as  hereafter  presciibed. 

Delivery  of  possession  to  pledgee  or  to 
pledge  holtler  (sec  sec.  293.'j)  is  essential:  Dodje 
V.  Meyer,  (jl  Cal.  40j,  429;  and  soe  cases  infra. 

A  mere  agreement  is  not  equivalent  to  an 
actual  or  symbolical  delivery:  C'uffiu  v.  Kar- 
wan,  7  La.  Ann.  221;  ColliitA  v.  Uwk,  03  Me. 
459;  Keiser  v.  I'opping,  72  111.  22G;  Nishit  v. 
Macon  B(u/k  d-  VrMwi  Co.,  12  Fed.  Rep.  GSG. 
Thus,  wliere  it  was  agreed  that  upon  the  sure- 
ty's being  ohliged  to  ]iay  he  miglit  come  and 
take  a  horse,  tiie  conditions  being  fuliilled  and 
he  having  taken  the  horse,  it  was  lieUl  that  he 
had  no  riglit  to  do  so,  as  he  had  no  lien  upon  it 
either  by  ))ledgc  or  mortgage:  C'eo-s  v.  Bramltii, 
18  Hun,  187;  and  see  Beeman  v.  Laicton,  37 
Me.  543,  and  Cardinell  v.  Bennett,  52  Cal.  470. 

The  delivery  nmst  be  such  as  would  be 
requisite  to  transfer  the  property  in  the  same 


chattels  in  case  of  the  sale  of  them;  and  to 
preserve  Ids  lien,  the  pledgee  must  letain  pos- 
session: See  Jones  on  I'ledges,  see.  2;>,  and 
cases  cited.  Hence,  symbodcal  deliveiy  is 
suuicie;it  wlierever  such  a  delivery  would  bo 
sulFieient  in  a  sale  of  tha  same  property. 
Thus,  tlie  delivei-y  of  a  warehouse  receipt  or 
wharfinger's  certiiicate  is  suliiclent:  Jjicr  s  v. 
Ihn^^ell,  52  Cal.  Gil;  Dow*  v.  2\'ut.  Enh.  Bank, 
91  U.  S.  G18;  Fir>it  Nat.  Bank  v.  Kel/y,  57  N. 
Y.  34;  Cartwr'Kjht  v.  W'dnierdunj,  24  N.  Y. 
521;  or  an  indorsed  bill  of  ladng:  llathaicay 
V.  IIayiu'!<,  124  Mass.  311;  Marine  Baiu-  v.  FlsUe, 
71  N.  Y.  3.j3;   Tajlor  v.  Tnrner,  87  LI.  29G. 

Lien  lost  by  rcleasins  the  po3303iion: 
See  note,  sec.  291.'!,  ante,  and  Jones  on  I'l:dges, 
sees.  40  et  seq. ;  Palmtaj  v.  Dontridc,  59  CuL 
154. 


2989.    Increase  of  thing. 

Sec.  2989.     The  increase  of  property  pledged  is  pledged  witb  the  property 

"The  increase  of  the  property  pledged 
is  pledged  with  the  pi'operty;  for  althougli  it 
does  not  come  into  existence   until  aiter  the 


pledge  is  made,  it  is  an  incident  of  the  thing 
pledged,  and  with  that  is  in  tiie  pledgee's  pos- 
eession: "  Jones  on  Pledges,  sec.  32.    Where  the 


relation  of  plcilgor  and  pledgee  exists,  if  the 
deljt  is  paid,  it  is  the  duty  of  the  pledgee  to 
account  for  and  pay  over  all  the  income,  proiits, 
antl  advantages  derived  from  the  bailment: 
JIun'iacb'r  v.  Slur/jis,  29  Cal.  142. 
See  Schouler  on  liaihn.  170. 


2990.    Lienor  may  j)ledge  property  to  extent  of  his  hen. 

Sec.  2990.     One  who  has  a  lien  ujdou  property  may  pledge  it  to  the  extent  of 
his  lieu. 


Lienor's  action  for  damages:  See  sec.  3338, 
pofit. 

"This  power  was  not  fully  recognized  by  the 
law  prior  to  the  adoption  of  the  code;  but  it  is 


established  in  England,  and  seems  just:  See 
Wcddle  V.  Dull,  29  Cal.  555:"  Conimistiionera' 
note. 

Compare  next  section. 


2991.   R<-al  oicner  cannot  defeat  pledge  of  properly  transferred  to  apparent  owner 

for  purpose  of  pledge. 

Sec.  2091.  One  who  has  allowed  another  to  assume  the  apparent  ownership 
of  property  for  the  purpose  of  making  any  transfer  of  it  cannot  set  up  his  own 
title,  to  defeat  a  pledge  of  the  property,  made  by  the  other,  to  a  pledgee  who 
received  the  property  in  good  fai:.h,  in  the  ordinary  course  of  business,  and  for 
value. 


Pledge  by  apparent  owner. — As  to  factor, 
compare  with  section  23GS;  and  sec  IVri'/'d  v. 
Solomon,  19  Cal.  Gl;  Davis  v.  Rnt-ifll,  52  Id. 
611;  Chirar/o  T.  P.  P.  Co.  v.  Lowdt,  GO  Id.  454; 
Dof/'/e  V.  .ileyer,  Gl  Id.  405. 

The  code  comndssioners,  in  exj)lanation  of 
this  section,  say :  ' '  Before  this  code  was  adopted 


it  was  limited  to  disposition  by  a  'factor  or 
ot!ier  agent.'  The  text  extends  it  to  a  1  per- 
sons allowed  to  assume  the  apparent  ownership. 
This  wdl  not,  iiowever,  extend  the  rule  to  all 
cases  of  meie  jjossession.  Mere  iioisession  of 
goods  is  not  evidence  to  the  world  of  an  un- 
limited authority  to  sell  them,  so  as  to  pieclude 


512 


Title  XIV,  Chap.  III.] 


PLEDGE. 


§§  2992-2995 


the  owner  from  showing,  as  against  a  purchaser, 
that  they  were  intrusted  to  him,  not  for  sale, 
but  for  a  tliffcreiit  purpose,  such  as  transporta- 
tion or  temporary  custody:  Cook  v.  Beal,  1 
Bosw.  497;  com;'are  Zachrhson  v.  Ahman,  2 
Samlf.  GS.  it  is  clear  that  one  who  takes  from 
the  factor  or  agent,  with  notice  of  the  true 
owner's  right,  is  not  protected  by  tlie  act: 
.sfn-riK'i  V.  WiUon,  .3  Denio,  472,  affirming  S.  C, 
6  Hill,  512;  Covell  v.  Hill,  G  N.  Y.  374;  ]i-ilsoii 
V.  Nason,  4  Bosw.  15.").  This  principle  is  pre- 
served by  the  provisions  in  the  text:  See  G^Ll- 
alriii  V.  Ilort,  ?>0  Cal.  372.  Where  a  factor 
purchases  property  in  liisown  name  he  v.as,  in 
Left  v.  Wa-Jsicorth,  5  Id.  405,  held  to  be  to  the 
whole  world  the  apparent  owner.  When  his 
only  business  is  to  se'll  them,  and  they  are  coii- 
eigned  to  liim  for  that  purpose,  tlie  factor,  in 
tin;  case  of  Hutchinson  v.  Bours,  G  Id.  3S5,  was 


hell,  on  account  of  Ins  notorious  employment, 
to  be  known  to  all  the  world  as  a  factor  for  the 
pur])ose  of  selling  only,  and  liad  no  power  t9 
pledge  the  goods  consigned  to  him.  L>ut  whea 
there  was  nothing  in  the  business  of  consignees 
to  make  them  technically  factors,  third  i^arties 
arc  not  bound  to  knov/  that  they  acted  as  fac- 
tors in  pledging  particular  goods:  Gladden  v. 
Lucas,  7  Id.  29;  sec  rdso  lion-  v.  Barker,  11 
Id.  402.  See  also,  as  to  srde  of  stocks  pledged, 
Mahonnj  v.  Capcr.'on,  15  Id.  315." 

Same  rule  as  to  transfer  of  negotiable  securi- 
ties: Colt  V.  Iliim'icrt,  5  Cal,  200;  and  as  to  min- 
ing stock  held  in  secret  trust  althou^di  pledged 
contrary  to  l)ankrup1  cy  laws:  Thowpsoii  v.  To- 
hnd,  43  Id.  CO;  see  Brewster  v.  Sline,  42  Id.  139. 
The  possession  of  a  warehouse  rcc(.ipt,  duly 
indorsed  is  presumptive  evidence  of  onuerabip: 
Davis  v.  lUuseU,  52  Id.  Gil, 


2S92.    ried-ge  lender,  what. 

Sec.  2992.     Property  may  be  pledged  as  security  lor  tlie  obligation  of  another 

person  than  the  owner,  and  in  so  doinj?  the  owner  has  ail  the  rights  of  a  plecl^oje*; 

for  himself,  except  as  hereinafter  stated. 

Pledge  lender. — Even  without  the  consent 
of  the  owner,  as  in  the  preceding  section  and 
otherwise,  the  thing  may,  as  between  the  par- 
ties, be  conjpletely  deemed  a  pledge,  so  that 
the  pledgor  himself  cannot  reclaim  it,  except 
on  discharging  the  obligation;  for  it  does  not 
lie  in  his  mouth  to  deny  his  ownership:  Story 


on  Bailm.,  sec.  291.  On  the  otK-er  hand,  tha. 
pledgee  cannot  ordinarily  re>5ist  the  ptcdgor',«( 
right  to  redeem;  for  ho  cannot  set  up  the  lighfc 
of  a  third  person  (jus  tertii)  unless  it  is  enl'orccd  , 
against  him,  or  lie  is  authorized  by  the  tiiird 
person  to  dose:  Id.;  i^alnikty  Y,  JJoutric!:,  Si) 
Cal.  154. 


29S3.    Pledge  holder,  ivhat. 

Sec.  2993.  A  pledgor  and  pledgee 
whom  to  deposit  the  property  pledged, 
a  pledge  holder, 

A  delivery  of  property  in  pledge  to  one 

person  as  security  for  a  debt  due  him,  and  also 
as  security  fur  elcbts  due  severrd  other  credi- 
tors, the  terms  of  the  pledge  having  been  as- 
sented to,  is  a  good  pledge  for  all  of  them,  and 
gives  them  all  a  lien  u]ion  the  property:  Ma- 
comber  V.  Parker,  14  Pick.  407;  l>a»J'orlh  v. 
Denny,  25  N.  H.  155.     A  delivery  to  a  work- 


may  agree  upon  a  third  person   with 
■who,  if  he  accepts  the  deposit,  is  called 


man  or  clerk  employed  by  the  pledgor,  and 
possession  by  such  workman  in  belialt  of  the 
pledgee,  are  sufucieiit:  Combs  v.  Tnclult,  24 
Minn.  423;  Sumner  v.  Hamlet,  12  Pick.  70.  A 
corporation  issuing  stock,  as  security,  to  ou9 
person  as  trustee  for  another,  to  wlioni  it  is  in- 
debted, tliereby  pledges  the  stock:  Brewster  v, 
Hartlftj,  37  Cal.  15. 


2S94.    When  pledge  lender  may  withdraw  property  pledged. 

Sec.  2994.  One  who  pledges  property  as  security  for  the  obligation  of 
another  cannot  withdraw  the  property  pledged  otherwise  than  as  a  pledgor  for 
himself  might,  and  if  he  receives  from  the  debtor  a  consideration  for  the  pledge 
he  cannot  withdraw  it  without  his  consent. 


The  conimissionera  here  say:  "This  follows 
as  a  necessity  from  the  position  authorized  to 
be  assiniicd  by  the  owner  of  property  pledged 
for  the  debt  of  another  by  section  2902,  aiUe, 


and  rests  in  the  simple  rule  rcgardin;;  contracts 
for  consideration  re(piiring  compliaiico  with 
the  undertaking." 


2393.    Obligations  of  pledge  holder. 

Si:c.  2995.  A  pledge  holder  for  reward  cannot  cxonei*ate  himself  from  his 
undertaking;  and  a  gratuitous  pledge  holder  can  do  so  onl}-  by  giving  reason- 
able notice  to  the  pledgor  and  pledgee  to  appoint  a  new  pledge  holder,  and  ia 
ease  of  their  failure  to  agree,  by  depositing  the  property  pledged  with  some 
impartial  person,  who  will  then  be  entitled  to  a  reasonable  compensation  for  his 
care  of  ihe  same. 

•♦Anot!i?r  Inconsistent  requirem'jnt  aria-  assumes  tlic  position,  duties,  and  obli  rations  of 
ing  from  sect.ou  2092,  fw^e.    The  pledjc  holder     a  bailee,  either  of  a  gratuitous  deposit  or  a 


Civ.  Cod;::— 33 


513 


§3  2396-3001  OBLIGATIONS.  [Drv.  Ill,  Part  IV, 

Jeposit  for  liire,  or  otheiv/iso,  according  to  the  them,  and  thus  relieve  his  position  from  mis- 
*; i roil ni stance 3.  These  gections  simply  pailicu-  understandings  whicli  might  othcrwiae  cmbar- 
lurizc  tlicic  responsibilities  and  duties,  regulate     rass  him:  "  Commissioiiers'  note. 

2993.    Pledge  holder  must  ev force  rights  (if  pledgee. 

Sec.  200G.     A  pledge  bolder  niuat  enforce  all  the  rights  of  the  pledgee,  nnless- 
iiitliorized  by  him  to  waive  them. 

Sue  preceding  note. 

2997.    Obligation  of  pledg'^e  and  pledge  holder  for  reward. 

Sec.  2C07.  A  pledgee,  or  a  pledge  holder  for  reward,  assumes  the  duties  and 
linbilities  of  a  depositary  for  reward. 

D-posiiaryforre-vyard:  Sccsec.  lSo2,  aji/'e.  held  in  pledge  without  this  protection    from 

Ordinary    diligsnce    is    required     of     the  theft,  and  it  is  stolen,  lie  is  responsil)le  for  the 

pledgee,  Imt  a  special  agreement  may  be  made  loss:  Petty  v.  Overall,  42  Ala.  143;  see  Abbdt 

increasing  his  liability,  as  that  the  goods  shall  v.  Frederick,  50  How.  Pi-.  G8. 

be  stored  in  a  certain  warehouse,  whereupon.  If   the   pledgor  leaves  perishable  goods    in 

if  the  goods  are  removed  therefrom,  the  pledgees  pledge  until  they  perish  from  natural  causes, 

become  liable  for  any  damage  caused  by  their  the  pledgee  having  oljserved  ordinary  cai-e,  the 

being  stored  in  an  improper  aud  insecure  place:  loss  will  fall  upon  the  pledgor,  and  the  pledgee 

St.  Losl'i/  V.  Davidson,  G  Cal.  G4.'>;  sec  Drake  v.  may  maintain  an  action  for  his  loan:  Thoinason 

White,  117  Mas3.  10.     Or  an  agreement  limit-  v.  Dill,  8'J  Ala.  444;  see  sec.  3007,  jwst.    When 

ing  bis  liability  may  be  made:  Bank  of  British  the  debt  is  paid,  the  pledgee  must  account  for 

,Cohimhia  v.  Marshal/,  11  Fed.  Pep.  19.  and  pay  over  all  the  income,  prollts,  and  advan- 

fl  the  pledgee  puts  his  ov/u  goods  in  an  iron  tages  derived  fi-om  the  bailmeiit:  Lbiiiaaker  v, 

f?5ifp,  ^)\'\  leaves  property  of   the  same  kind,  Sturpis,  29  CaL  142. 

1^933.    GratuUous  pledge  holder. 

..Spe.  2908.     A  gratuitous  pledge  holder  assumes  the  duties  and  liabilities  of 

:agratuitous  depositary. 

See  sec.  1S45,  ante,  aud  sec.  2995,  and  note. 

:2999.    Debtor's  misrepresentation  of  value  of  pledge. 

Sec.  2999.     Where  a  debtor  has  obtained  credit,  or  an  extension  of  time,  by 

.a  fraudulent  misrepresention  of  the  value  of  property  joledged  by  or  for  him, 
the  creditor  may  demand  a  further  pledge  to  correspond  with  the  value  repre- 
sented; and  in  default  thereof  may  recover  liis  debt  immediately,  though  it  be 
not  actually  due. 

-30G0.    When  pledgee  may  sell. 

Sec.  30C0.     "When  performance  of  the  act  for  which  a  pledge  is  given  is  due, 
in  wl\ole  or  in  part,  the  pledgee  may  collect  what  is  due  to  him  b}'  a  sale  of 
property  pledged,  subject  to  the  rules  and  exceptions  hereinafter  prescribed. 
Ramedies     of     pledges. — "As      with      a     by  the  language  of  the  above  section,  or  rathei 

.  mortgr.ge  so  with  a  pledge,  the  creditor  may  merged  in  the  third  remedy:  Jones  o;i  Pledges, 
upon  default  pursue  any  or  all  of  his  several  sec.  G02.  The  fourtii  remedy  is  provided  by  sec. 
remedies.     The  remedies  upon  a  pledge  are  also     3011,  post.     And  sale   is  restricted  in  case  of 

-similar  to  those  upon  a  chattel  mortgage.  They  most  choses  in  action  by  section  3006, /fosi;  see 
are:  1.  By  action  upon  the  debt  socui-cd;  2.   By     also  sec.  2S90,  ante. 

sale  of  the  pledge  at  common  law  without  ju-  Action  by  pledgee. — A  pledgee  may  bring 
«licial  proceeding;  3.  By  sale  under  statutory  an  action  to  recover  the  debt  without  lirst  ex- 
provisions;  4.  By  sale  under  a  decree  of  a  court  hausting  the  subject  of  the  pledge:  Sonoma 
of  chancery;  .').  By  sale  under  a  special  power  Bank  v.  Hill,  59  Cal.  107;  EhrUck  v.  Ewald, 
of  sale:"  Jones  on  Pledges,  sec.  589.  Tiie  4  West  Coast  Pep.  3S0. 
secoud  remedy,  it  will  be  observed,  is  excluded        Foreclosure  of  pledss:  Sec.  3011. 

8001.    Demand  of  performance  requisite  before  sale  of  pledge. 

Sec.  3001.     Before  property  pledged  can  be  sold,  and  after  perfomiance  of  the 

act  for  which  it  is  security  is  due,  the  pledgee  must  demand  performance  thereof 

,  from  the  debtor,  if  the  debtor  can  be  found.     [Amendment,  approved  March  30« 

1874;  Amendments  1873-4;  took  effect  July  1,  1874.] 

Demand. — The  amendment  of  1874  added  must  be  given  to  authorize  pledgee  to  sell: 
the  clause  "  if  the  debtor  can  be  found,"  which  Dewej/  v.  Bowman,  8  Cal.  145.  May  be  sold,  if 
is  of  obvious  advantage.     Demand  and  notice    at  public  auction,  after  debt  is  due  aud  notice 

61^ 


Title  XIV,  Chap.  III.] 


PLEDG] 


§§  3002-3000 


is  given  for  a  reasonalilc  time   prior  thereto:  held  as  to  pledge  in  chattels  in  Manrje  v.  ITi'r- 

WJsoii  y.  JJraiiiian,'27  ld.'25S.     If  sold  witliout  iinjhi,  '2lj  Id.  577;  consult  tlie  case  of  Trend  mil 

deni;uid;indiioticeitisaci)nvcision,and  iilcd^ce  v.  Davi<,  o^  \<\.  001;  but  see  Jones  on  Pledges, 

liable:  (/a//  v.  Mos-s  ''-^  Id.  {•27).     This  right  to  sec.  GOS. 
licuiaiid  and  notice  existed  at  coinniou  law.     So 

3C02.    Notice  of  sale  to  pledgor. 

Skc.  3U02.  A  pledgee  xnust  give  actual  notice  to  the  pledgor  of  the  time  aiid 
place  at  which  the  property  pledged  will  be  sold,  at  such  a  reasonable  time 
before  the  sale  as  will  enable  the  pledgor  to  attend. 


r.ot-ce  necessary:  See  note  to  previous 
section. 

Ratification. — No  demand  having  been 
made,  or  suliicient  notice  given,  stiil  if  the 
pledgor  made  no  oljjection  and  after  the  sale 
ap])rovod  it,  and  pi'omiscd  to  pay  a  balance 
claiim  d  by  tlie  pledgee,  such  acts  constitute  a 
Buflicient  ratitication  of  the  sale:  Child  v.  lluqij, 
41  Cal.  519. 

Serving  the  notice. — Notice  must  be  given 


to  the  general  owner  of  the  pledge  or  his  au- 
thorized agent:  Washburn  v.  Pond,  2  Allen, 
474;  may  be  Lft,  in  the  absence  of  the  pie  Igor, 
at  his  oliice  with  the  per.-^on  in  charge:  /'o/hr 
V.  'Jliompson,  10  \l.  I.  1;  Dryan  v.  Ikddirin,  7 
Lans.  174;  also  pi'operly  directed  and  scut 
through  the  post-otiice:  Wort/tiiiijfnv.  v.  Tornvy, 
34  Md.  lS-2;  but  notice  left  at  pledgor'.^  oliice 
without  date  or  signature  is  iusutScieut:  Geiiei 
V.  I/owland,  45  Barb.  5G0. 


3003.  Waiver  of  nol ice  of  sale. 

Sec.  3003.  Notice  of  sale  may  be  waived  by  a  pledgor  at  any  time;  but  is  not 
waived  by  a  mere  waiver  of  demand  of  performance. 

3004.  Waiver  of  demand. 

Sec  3004.  A  debtor  or  pledgor  waives  a  demand  of  performance  as  a  con- 
dition precedent  to  a  sale  of  the  property  pledged,  by  a  positive  refusal  to  per- 
form, alter  performance  is  due;  but  cannot  waive  it  in  any  other  manner,  except 
by  contract. 


Notice  may  be  waived  by  agreement: 
Loovii-i  V.  S/ave,  12  111.  GJ3.  A  waiver  of  the 
connnondaw  rule  of  notice  is  generally  made 
by  a  special  power  of  sale,  wherein  the  debtor 
provides  for  a  special  notice  or  waives  all  no- 
tice citlur  expressly  or  by  giving  the  pledgee 
the  option  to  sell  at  public  or  private  sale: 
Ilohinsou  V.  Hurley,  II  Iowa,  410;  AliUikinv. 


Drhon.  27  N.  Y.  .3G4,  reversing  S.  C,  lOBosw. 
3'25.  The  right  of  redemption  incident  to  every 
filedge  would  be  valueless  if  the  creditor  could, 
in  tlie  absence  of  any  agreement  dispensing 
wilh  notice  of  sale,  sell  the  property  pledged 
without  demand  of  payment  and  without  notice 
of  the  time  and  place  of  sale:  WiUon  v.  Liltle, 
2  N.  Y,  443;  Jones  on  Pledges,  sees.  GIO,  Gil. 


3005.   Sale  must  he  by  auction. 

Sec.  3005.  The  sale  by  a  pledgee,  of  property  pledged,  must  bo  made  by 
public  auction,  in  the  manner  and  upon  the  notice  to  the  public  usual  at  the 
place  of  sale,  in  resjject  to  auction  sales  of  similar  property;  and  must  be  for 
the  highest  obtainable  price. 


board  of  brokers  does  not  authorize  a  sale  made 
otherwise  than  openly  at  the  board  after  stat- 
ing the  facts  concerning  the  pledge:  Dylcers  v. 
Allen,  42  Am.  Dec.  83. 


Sale  at  board  of  brokers. — In  Child  v. 
Ilit'j.l,  41  Cal.  510,  the  (piestion  whether  a  sale 
of  stock  ill  a  board  of  b.okers  is  a  sale  at  pub- 
lic auction  was  presented  l)ut  not  decided. 

Express  authority  to  sell  pledged  stock  at  a 

3006.    Pledgee's  sale  of  securities. 

Sec.  3006.  A  pledgee  cannot  sell  any  evidence  of  debt  pledged  to  him, 
except  the  obligations  of  governments,  states,  or  coi'porations;  but  he  may  col- 
lect the  same  when  due. 


Neerotiable  paper  as  collateral  security 
— Diligence  -which  holder  must  exsrcise. 
In  the  note  to  Mil'er  v.  Gefh/ihunj  Bank,  34 
Am.  Dec.  451,  it  is  said:  "Where  a  creditor 
takes  a  negotiable  instrument  fiom  his  delator 
as  collateral  security  for  the  payment  of  liis 
debt,  and  holds  it  until  it  becomes  due,  it  is 
his  duty  to  present  it  for  payment  at  maturity, 
and  if  it  is  dishonored,  to  give  notice  to  the 
parties  entitled  thereto,  in  the  same  manner  as 
if  ho  were  the  absolute  owner  of  the  instru- 
ment: Peacock  v.  Purcell,  32  L.  J.  C.  P.,  N.  S., 


263;  S.  C,  14  C.  B.,  N.  S.,  728;  Byles  on  Bills, 
3S1;  1  Daniel  on  Xeg.  Inst.  G77,  GS4;  BHterton 
V.  Roope,  3  Lea,  215;  S.  C,  31  Am.  Rep.  633; 
Smith  V.  Miller,  43  N.  Y.  171;  S.  C,  3  Am. 
Rep.  GOO;  Atfxandrln  etc.  I{.  If.  Go.  v.  Jiurket 
22  Gratt.  254,  232;  Seller-^  v.  Joiw,  22  Pa.  St. 
423,  427;  Mnlrlicnd  v.  /{Irkpa'rhk,  21  Id.  237; 
Jiiisse'l  V.  /fcxfcr,  lOAla.  53');  Sehouler  on  IJaihn. 
10.3.  213;  ]Vh''eler  v.  Nowbonld.  IG  N.  Y.  302; 
Jii'rvPH  V.  Plo'iijh,  41  Ind.  204;  Foofe  v.  Brown, 
2  McLean,  3J6.  But  in  the  performance  of 
this  duty,  ordinary  diligence  and  skill  are  the 


515 


§§  3007-3010 


OBLIGATIONS. 


[Div.  Ill,  Paht  IV, 


measure  of  the  pledgee's  responsiliility:  Reevfis 
V.  Flou'jh,  41  Iml.  '21)4;  Lee  v.  Bald  win,  10  Oa. 
208;  Schouler  on  Bailm.  103;  Goodall  v.  Rich- 
ardson,  14  N.  H.  5u7."  Seo  also,  to  the  same 
effect,  Jones  on  rieJijes,  sec.  G02-719. 

The  laches  of  the  pledgee  in  failing  to 
use  due  diligence  in  the  collection  of  the  instru- 
ment extinguishes  the  debt  for  which  it  is  de- 
posited as  security:  See  cases  cited  tmpra;  and 
in  Michigan  renders  him  liable  in  every  case 
for  the  amount  of  the  note:    Whitten  v.  Wrvjht, 

3007.    SaJe  on  the  demand  of  the  pledgor. 

Sec.  3007.  Whenever  property  pledged  can  be  sold  for  a  price  sufficient  to 
satisfy  the  claim  of  the  pledgee,  the  pledgor  may  require  it  to  be  sold,  and  it3 
l)roceed3  to  be  applied  to  such  satisfaction  when  due. 

Of  this  section  the  code  commissioners  say:     curities.     A  pledge  should  be  used  only  as  a 


34  Mich.  92;  but  it  is  elsewhere  generally 
belli  that  he  becomes  li:'.ble  only  for  tlie  actual 
loss  or  prejudice  to  tlic  pledgor:  Jones  ou 
Pledges,  sec.  702;  Clark  v.  Youikj,  1  Cranch, 
ISl;  Kcpharty.  Butcher,  17  Iowa,  240;  J'o.oell 
V.  Ilenrif,  27  Ala.  012;  Grove  v.  Roberta,  G  La. 
Ann.  210;  llunicr  v.  Monl,  98  Pa.  St.  13; 
Wedphal  V.  Ludlow,  G  Fed.  Pvep.  348  (C.  C. 
D.  Minn.,  ISSl);  sec  also  note  to  MUler  y.  Get- 
tysbunj  Bank,  34  Am.  Dec.  452. 


"  Tills  provision  is  new,  or  at  least,  it  is  very 
doubtful  whether  such  a  right  existed  before 
the  adoption  of  this  code.  But  its  justice  is 
^ery  clear:  Story  on  Bailm.,  sec.  320.  It  is 
not  proposed  to  extend  the  same  privilege  to 
mortgages,  as  they  are  used  as  permanent  se- 


transient  security."  In  support  of  tlie  propo- 
sition of  the  newness  of  this  law,  FicLl  v.  Lcav- 
ill,  5  Jones  &  S.  215,  may  be  cited,  which  de- 
cides that  the  ple^lgee  is  not  liable  for  1 1  fusal 
to  sell  the  pledge  when  requested,  even  tiiough 
great  loss  occur  therefrom:  See  sec.  3009,  iuj'ra. 


8008.    Surplus  to  be  paid  to  pledgor. 

Sec.  3008.  After  a  pledgee  has  lawfully  sold  property  pledged,  or  otherwise 
collected  its  proceeds,  he  may  deduct  therefrom  the  amount  due  under  the 
pi'incipal  obligation,  and  the  necessary'  expenses  of  sale  and  collection,  and 
must  pay  the  surplus  to  the  pledgor  on  demand. 

Whenever  the  purpose  of  the  pledge  is  satis-     Co.,  7   Daly,  303;  see  also  Jones  on  Pledges, 
fied,  the  right  of  the  pledgor  to  t!ie  surplus  be-     sees.  040,  050,  745. 
comes  absolute:  Earle  v.  iVeio  York  Life  Ins. 

COOO.    Eights  of  pledgee  on  sale  of  pledge. 

Sec.  3000.  "When  i^r^^perty  pledged  is  sold  b}'  order  of  the  pledgor  bsforg 
the  claim  of  the  pledgee  is  due,  the  latter  may  retain  out  of  the  proceeds  r.U 
that  can  possibly'  become  due  under  his  claim  until  it  becomes  due.  [Ainend- 
menl,  approved  March  30,  1874;  Amendments  1873-4,  262;  look  effect  July  1, 
1874.] 

"This  and  the  preceding  section  are  mr\de  It  is  well  to  note  that  this  section  originally 
necessary  l)y  and  harmonize  with  section  3007,  contained  the  clause,  "  With  the  jnop'jr  rebate 
aiile,  which  is  there  said  to  be  new:"  Commis-  of  interest;"  that  is,  the  debt  was  discounted, 
sioners'  note. 

8010.    Plegee's  purcliase  of  propertg  pledged. 

Sec.  3010.  A  pledgee,  or  pladge  holder,  cannot  purchase  the  property 
pledged,  except  by  direct  dealing  with  the  pledgor. 

Purchase  by  pledgee. — .1  </riierul  /lurhifr    the  creditor  still  holds  the  property  in  pledge 
in  (I  Jinn  hold/u;/  /iro/x'r'  /  in  plrdijc  cannot  pur-     Bryan  v.    Bal  (win,  5 


chase  at  the  sale,  but  a  special  partner  may,  for 
he  !ia3  no  .share  in  t'.ie  management  of  tlie  alfairs 
of  tiie  firm,  r.n.l  is  tliercf  >re  not  one  »)f  tlie 
persons  cliarged  with  t^ie  duty  of  selling  tlie 
property  at  the  best  piice  that  can  reasonably 
1)0  obtained:  Leicis  v.  draham,  4  .Vbb.  l*r  100. 
Ilosuit  of  purchase  by  pled:;33 — If  the 
pledgee  i)ui'chase  l!ie  [ledge  at  pub:ic  sale  he  is 
not  char  cnbie  wi:  h  a  conver.sion  of  it.  Such 
s;ile  wiLiiout  a  sal)de(iuci;t  ratilic:itii>n  is  not 
Eiuricicnt  to  transfei-  t.:c  title  to  t!ie  pioperty. 
'J  he  sah\  liowever,  is  not  void,  bat  voi  lablo. 
The  debtor  may  raLify  and  legal. ze  thos:de,  and 
b-:-  entitled  to  credit  u])on  his  debt  to  t'le 
amount  of  t!ic  net  procec('-s  of  the  sal'.  But 
if  \\■^  does  not  elect  to  d  )  t'.iis  tlie  sale  'm  void, 
and  tlie  parties  are  renutte.l  t>  t  leir  origi.ial 
rights.     The  deijtor  is  liable  upon  his  d^bt,  and 


X.  Y.  232,  alii rn ling  S. 
C,  7  Lans.  174;  Canfuld  v.  Minneapoli-t  A.  <L-  M. 
A-"-^',!,  1  1  Ted.  Rep"  8)1  (U.  C.  D.  Minn.,  lt.S3). 
Ilatili cation.  —  '-Thero  can  be  no  doubt  that 
a  sale  in;ide  by  a  plcdgeo  in  contravcnLion  of 
the  proviaons  of  a  sta  ute  may  be  ratiiicd  by 
the  [le  Igor;  and  it  has  been  expressly  so  do- 
cidoil  1)V  the  court  in  the  case  cf  Child  v. 
Hiijij,  41  Gal.  512.  *  *  *  The  sjction 
[>iH]tr  ]  was  undonbteilly  enacted  for  the  pro- 
tecci  ;ii  of  t!ie  pltid  ;or — to  the  end  that  no  un- 
fair advantage  be  taken  of  him.  It  iirohiiiits 
a  pledgee  or  pledge  holder  from  ])urchasing  the 
properi^y  pledged,  except  by  direct  dealing 
wi.li  the  jiledgor. '  By  such  dealing  with  the 
pledgor,  the  pledgee  may  purchase  it.  If  the 
])leiijoi'  c. looses  to  do  so,  we  see  no  reason  why 
he  may  not  consent  tliat  the  pledgee  may  buy 
at  tlic  public  sale.     lu  some  cases  jfc  may  be  to 


516 


TiTLK  XIV,  Chap.  IV.] 


BOTTOMRY. 


§§3011-3018 


his  interest  that  this  be  done.  Such  consent 
may  be  given  either  at  the  making  of  the 
pleilge  or  at  any  subsequent  time,  without 
clianging  the  form  of  tlie  original  contract,  ami 
without  consideration:"  Jlill  v.  Fiimhjan,  C2 
Cal.  421),  439. 

Tlie  assent  of  the  pledgor  may  be  presumed 
where  the  facts  are  notorious,  and  no  dissent 


is  shown:  Carroll  v.  Mullanphy  F^av.  Bank,  8 
Mo.  App.  249;  Hamilton  v.  klate  .Bank,  22 
Iowa,  .S0(j;  st^e  Jones  on  T 'ledges,  sees.  ().3G-G.'!9. 
Right  to  purchase  at  judicial  sale.— Tlio 
conini'ssioners  say:  "Of  course  tiiis  section  is 
subject  to  tlie  right  of  tlie  jilcdgee  to  purchase 
at  a  judicial  sale,  as  provided  in  tlie  next  sec- 
tion." 


soil,    riedrjee  man  foreclose  rigid  of  redemj^'ion. 

Sl-o.  3011,  Instead  of  selling  property  pledged,  as  hereinbefore  provided,  a 
pledgee  may  foreclose  tlie  right  of  redemption  by  a  judicial  sale,  under  tho 
direction  of  a  competent  court;  and  in  that  ease  maj'  be  authorized  by  the  court 
to  purchase  at  the  sale. 

Judicial  sale. — It  may  become  necessary  or  Keman,  24  Ind.  G2;  Stearns  v.  Ularsh,  4  Dcnio, 

desirable   to   proceed   in   equity   to   enforce  a  227. 

jiled^e,  for  the  reason  that  the  pledgor  cannot         In  case  of  a  pledge  of  a  title  deed,  it  seems 

be   found  so  tlie  personal  notice  of   the  time  that  there  can  be  no  valid  sale  except  under  a 

and  place  of  sale  of  tlie   pledge  can  be  served  decree  of  a  court  of  eijuity:  Jones  on   I'ledges, 

upon  liim;  Indiana  iL  Jll.  Cent.  11.  Go.  v.  Mc-  sec.  G43;  sec.  2922,  ante,  commissioners'  note. 


CHAPTER  IV. 

BOTTOMRY. 
S0I7.    PtoUomry,  what. 

Sec.  oU17.     Bottomry  is  a  contract  by  whicli   a   ship   or  its  freightage  13 

livpothecated  as  security  for  a  loan,  which  is  to  be  repaid  only  in  case  the  ship 

sui'vives  a  particular  risk,  voyage,  or  period. 

"Bottomry." — The  keel,  or  bottom,  of  the  tions  against  steamers,  vessels,  and  boats,  so 

ship  is  liypoliiecatcd,  pars  pro  toto:  Bouv.  Law  far  as  it  attempts  to  authorize  in-oceeduigs  in 

Diet.;  //if' y^raro,  2  Sumn.  I7G.    It  isaconti'act  rem  for  causes  of  action  cognizable  in  aduiir- 

fur  a  loan  of  money  on  tlie  bottom  of  the  vessel  alty,  is  unconstitutional,   fur  of  such  pioceed- 

at  an  cnhancctl  interest,  upon  .sea  risks,  to  be  iiigs  the  district  courts  have  exclusive  jurisdic- 

borue  or  incurred  by  the  lender  during  a  \oy  tion:  Craivford  v.  Bark  Caroline  lle<(l,  42  Cal. 

age  or  for  adohuitc  pei'iod  of  time:  Id.;   Thorn-  4G9;  Judiciary  act,  1789,  Jur.  Dist.  Ct.,  subd.  8. 

dike.  V.  Stone,  II  Pick.   1S3;   The  Orajieshot,  9  Therefore,  when  tlie  bond  is  to  be  speciHcaily 

Wall.   13.i;    Thorvd'ike  v.  Stone,   11    Pick.  183;  enforced  by  a  proceeding  «//,  jrw,  i.  e.,  seizing  tiie 

Cole  V.  White,  20  Wend.  oil.    U.surious  ami  ra-  subject  of  hypothecation  into  custody,  a  coiiit 

pacious  iiiturcst  may  l)0  restrained,  under  sees,  of  admiralty  is  the  ap[iropriate  court:   'J'he  Je- 

3022, 1 lost.     That  the  terms  of  the  boiul  resem-  rusnlem,  2  Gill,    Ifll,  I9G;   but   the  remedy  afc 

ble  those  used  in  a  mortgage,  and  apparently  common  law  remains,  by  action  of  covenant  oi 

purport  a  ti'unsfer,  makes  nod  iH'erence;  it  vests  debt  fur  breach  of  the  conditions  of  the  liond 

no  absolute  indefeasible  interest  in  the  vessel,  Tyler  j\lar.  Loans,  782;  see  i'arsous  on  Ship.  & 

but  gives  a  claim  on  lierwiiicli  maj' be  enforced  Adm.  133. 

in  aihiiiralty:  Blaine  v.  The  Charles  Carter,  4         But  as  to  the  operation   and   effeot   of   the 

Crancii,    328;    U.  S.  v.   Delmcare   //ts-.   Co.,  4  bond,  tho  law  of  place  goxerns:  Pop'-  v.  2\'ii/:er- 

\\'asli.    418;     The    Youmj   Mechavir,    2    Curt.  so)i,  3  Story,  478;   'J'he  Pachl,  3  Mason,  2.m; 


404;  Ii'ih-rtson  v.  U.  S.  Ins.  Co.,  2  Johns.  Cas. 
2.j0.  This  is  a  maritime  contract:  De  Lorio  v. 
Bort,  2  (jall.  47o,  per  Story,  J.;  enforceable 
generally  only  by  a  proceeding  in  rem:  Field 
Fed.  Ct.,  sec.4o;  Adui.  Rule,  18;  and  section  813 
of  the  Code  of  Civil  Procedure,  concerning  ac- 


Appleton  V.  CrowiiiiishieUl,  3  Mass.  340;  Joyce 
V.  Williamson,  3  Doug.  1G4. 

Itisiudepeudsutof  pos33ss:on:  Sec.  3027, 
2^0x1,  and  cases  cited. 

Insuraiica  by  owner;  See  sec.  2GG0,  ante, 
and  note;  Barber  on  ins.  149,  s§c.  95. 


3018.    Owner  of  sJiip  may  hypothecate. 

Sec.  3018.     The  owner  of  a  ship  may  hypothecate  it  or  its  freightage,  upon 
bottomry,  for  any  lawful  purpose,  and  at  any  time  and  place. 


Home  port. — Bottomry  bondsareoften  made, 
in  tliis  cDuntry,  by  the  owner  in  the  home 
Jiort.  Nur  is  any  necessity  whatever  recpii- 
site,  as  fir  as  his  own  interest  ij  concerned: 
Wi  mer  V.  Thf  Sniilax,  2  Pet.  Adm.  2,J.),  note; 
Cn\ey<i  V.  WaterhonM',  19  Me.  91;  8.  C,  33  Am. 
L>ec.  7oO;  The  Draco,  2  Suum.  137;   Thorndike 


V.  Sfo>ie,  11  Pick.  183;  The  Mary,  1  Paine, 
671;  and  if  in  such  a  case,  the  owner  is  also 
master,  although  he  professes  to  coutr.ict  as 
master,  he  confers  the  s.ime  rights  as  if  he  gave 
tlie  bond  as  owner:  The  Ship  Panama,  Olc. 
Adm.  313;  1  Parsons  on  Sliip.  &  Adm.  13S; 
Desty's  Siiip.  &,  Adm.,  sec.  9j. 


517 


§§  3019-3022 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


3019,    JVlieii  master  may  hypolhecale  sJiip. 

Skc.  3019.  The  master  of  a  ship  ma}--  hypothecate  it  upon  bottomry  only  for 
the  purpose  of  procuring  repairs  or  supplies  which  are  necessary  for  accom- 
plishing the  objects  of  the  voyage,  or  for  securing  the  safety  of  the  ship. 

cate  his  ship,  cargo,  or  freightage  only  in  a  for- 
eign port:  Thomas  v.  Osborn,  li)  How.  •22;  7Vt« 
Grapi'shut,  9  Wall.  1-29;  Burke  v.  The  M.  P. 
nich,  1  Cliff.  308;  Joij  v.  Allen,  2  Woodl).  & 
M.  303;  but  fur  this  purpose  the  jjorts  of  each 
state  are  deemed  foreign  to  those  of  other 
states:  Barke  v.  The.  M.  P.  Rich,  supra;  <V(7- 
deii  V.  Ilendrlcks'in,  1  Brock.  390;  The  William 
awl  Emmeliiie,  Blatchf.  &  H.  72;  but  see  note 
iii/ra. 

Freightage,  the  authority  of  the  master  ex- 
tends to:  Sec.  3021. 


Authority  of  master. — This  power  of  the 
master  is,  for  most  purposes,  a  branch  of  the 
law  of  agency:  Sec.  2377,  ante;  but  it  is  a 
power  whicii  he  cannot  exercise,  except  when 
it  is  impossible,  consulting  the  best  interests 
of  the  vessel,  cargo,  passengers,  and  crew,  to 
co;nnuinicate  with  the  owners,  or  otherwise 
reach  tiie  funds  or  obtain  the  credit  of  the  own- 
ers. Tlicrefore,  as  this  authority  rests  upon 
the  ground  that  there  is  no  means  of  communi- 
cating with  the  owners,  sec.  2320,  aide,  and 
note,  it  follows  that  the  master  can  hypothe- 


3020.   Same. 

Sec.  3020.  The  master  of  a  ship  can  hypothecate  it  upon  bottomry  only  when 
he  cannot  otherwise  relieve  the  necessities  of  the  ship,  and  is  unable  to  reach 
adequate  funds  of  the  owner,  or  to  obtain  any  upon  the  personal  credit  of  the 
owner,  and  when  previous  communication  with  him  is  precluded  by  the  urgent 
necessity  of  the  case. 


May  sell  ship  and  cargo:  See  sees.  2377- 
2371',  and  notes,  cnite. 

He  caunot  hypothecate  merely  to  secure 
or  pay  pre-ejdstiiig  debts:    'J'he  Aurora,   1 

^VllL•at.  90;  IJarry  v.  TlieJohn  and  Alice,  1 
Wasli.  293;  .SVo'/Ji  v.  The  A.  E.  /.,  Bee  Adm. 
250;  I'lie  Hunter,  7  Ware,  254;  but  lie  may 
bottom  the  ship  to  liberate  her  from  arrest  and 
sale  for  an  antecedent  debt,  but  iwt  for  a  mere 
threat  of  arrest:  The  Aurora,  1  Wheat.  90;  The 


BoHon,  Blatchf.  &H.  324;  Tlie  Yuba,  4  Blatchf. 
352. 

The  bond  itself  is  not  evidence  of  the  absence 
of  other  means  of  obtaining  money.  Tlnis  must 
be  sliown  aliunde,  and  otherwise  than  by  the 
assertion  of  the  master,  as  he  cannot  acquire  an 
authority  from  his  own  assertion  only:  Clark  v. 
Laidlaiv,  39  Am.  Dec.  520;  Bri<j  Bridi/evulfr, 
01c.  Adm.  3();  but  his  competency  is  generally 
admitted:  1  Parsons  on  Ship.  &  Adm.  149. 


3321.     When  master  may  hypothecate  freight  money. 

Sec.  3021.     The  master  of  a  ship  may  hypothecate  freightage  upon  bottomry, 

under  the  same  circumstances  as  those  which  authorize  an  hypothecation  of  the 

ship  by  him. 

To  the  same  effect:    The  Paelci-t,  3  Mason, 
255;   The  Zepliyr,  Id.  341;    Ward  v.  Green,  6 


Cow.  173;  not  for  his  private  purposes:   Keith 
v.  Murdock,  2  Wash.  297. 


3022.    Rale  of  interest. 

Sec.  3022.  Upon  a  contract  of  bottomry,  the  parties  may  lawfully  stipulate 
for  a  rate  of  interest  higher  than  that  allowed  by  the  law  upon  other  contracts. 
But  a  competent  court  may  reduce  the  rate  stipulated  when  it  appears  unjusti- 
fiable and  exorbitant. 


Marine  interest  must  run  risk. — To  con- 
Btitute  a  bottomry  where  more  than  legal  inter- 
est is  reserved,  it  is  essential  that  the  money 
lent  and  interest  should  be  put  at  risk.  If  tliey 
arc  payable  at  all  events,  or  if  tliere  is  collat- 
eral security  given  for  them,  which  is  payable 
at  all  events,  no  niiatter  by  what  name  the  con- 
tract is  called,  it  is  not  bottomry:  Jenn'nujs  v. 
Jus.  Co.  of  Penn.,  5  Am.  Doc.  404;  Desty's 
iShip.  &  Adm.,  sec.  94. 

i)idy  le/al  interest  will  be  allowed  if  the 
voyage  is  defeated  bL-fure  t!ic  mari.ie  risk  has 
been  run:  Greeltj  v.  Smith,  3  Woodb.  &  M.  230; 
The  Atlas,  3  Hagg.  Adm.  49. 

Maria3  inter aafc  nee  333ary,  whsii. — When 
the  bond  provides  for  no  marine  interest  nor 
Bea  risk,  and  its  condition  is  a  mere  [iledge  to 
recover  a  debt  and  siuiule  interest,  it  is  not  a 


bottomry  bond:  The  Virginia,  8  Pet.  538;  The 
Ann  C.  Pratt,  1  Curt.  .340;  S.  C,  18  llow.  G3; 
77(6  William  ami  Emetine,  1  Blatch.  &  II.  00; 
The  Hauler,  1  Ware,  249;  Lelan  I  v.  The  Me- 
dora,  2  Woodb.  &  iM.  92;  The  Atlantic,  Newb. 
514;  The  Mary,  1  Paine,  671;  Brown  v.  Ar- 
buHcle,  1  Wash.  484;  see  Selden  v.  Heiidrickson, 
1  Brock.  390;  see  Parsons  on  Ship  &  Adm.  136. 
Reduoins  iirfcerest— -"  The  court  lias  also 
the  pu\\'er  to  moderate  the  maritime  interest, 
when  it  is  manifestly  exiirbitant,  ami  it  is  ap- 
parent tliatau  undue  advantage  has  lieea  taken 
of  the  necessities  of  the  mister,  though  this  will 
be  done  with  great  caution:"  The  Ji'uiter,  I 
^Vare,  255;  also  The  Packet,  3  Mason,  2  ■)5;  Wil- 
mer  V.  The  Smilax,  2  Pet.  Adm.  2J5;  see  Par- 
sous  on  Merc.  Law,  342. 


518 


Title  XIV,  Chap.  IV.] 


BOTTOilUY. 


S§  3023-3025 


3023.    nights  of  lender,  wlien  no  necessity  for  bottomry  existed. 

Seo.  3023.  A  lender  upon  a  contract  of  bottomry,  made  by  the  master  of  a 
ship  as  such,  may  enforce  the  contract,  though  the  circumstances  necessary  to 
authorize  the  master  to  hypothecate  the  ship  did  not  in  fact  exist,  if,  after  due 
diligence  and  inquiry,  the  lender  had  reasonable  grounds  to  believe,  and  did  in 
good  faith  believe,  in  the  existence  of  such  circumstances. 

Duty  of  lendar. — It  is  well  settled  that  it     than   by  resortiug  to  bottomry:    The  Heart  of 


is  the  duty  of  tae  lender  to  see  tliat  tlie  ad- 
^■auces  are  iic-cessary  to  effectuate  the  objects 
of  the  voyage,  or  preserve  the  safety  of  the 
sliip:  Dusty's  Ship.  &  Adm.,  sec.  105;  Parsons 
on  .Ship.  &  Adm.  147.  But  the  proof  of  neces- 
sity fur  repairs  or  .supplies,  or  for  advances,  is 
sutiicient  to  establish  an  apparent  necessity  for 
credit  to  the  vessel:  The  Grapfuhof,  9  W'all. 
138;  The  Lain,  10  Wall.  102;  The  Kalorama, 
Id.  21(3;  PruU  v.  AVe</,  10  How.  3J0.  Further- 
more, tlie  necessity  for  repairs  being  shown,  tlie 
burden  of  proof  is  on  tlio  owner  to  show  tliat 
the  money  could  have  been  obtained  otherwise 


Ocd;  1  W.  Hob.  201;  The  Gauntlet,  3  Id.  82;  or 
that  tlie  master  had  funds  of  tlie  owners:  Forbe$ 
V.  Ap/detoii,  .')  Gush.  115;  and  there  is  even  a 
presumption  in  favor  of  the  lender  that  be 
made  tlic  proper  in(juiries  in  this  I'espect:  The 
Fortittirfe,  3  .Sumn.  228. 

Of  course  in  cas3  of  fraud  the  bond  is  void, 
and  furtaeriiiore,  tlie  lender  has  no  lien  on  tho 
siiip  for  the  amount  actually  advanced:  'J'he 
Xe/son,  1  Ilagg.  Adm.  IGO,  17G;  The  JJr.y  Ann 
C.  Pratt,  1  Curt.  3-10:  S.  C.  affirmed,  Carring- 
toil  V.  Pratt,  IS  Ilow.  03. 


3024.   Stipulation  fur  pevi^onal  liability  void. 

Sec.  3024.     A  stipulation  in  a  contract  of  bottomry,  imposing  any  liability 
for  the  loan  independent  of  the  maritime  risks,  is  void. 


Void  .stipulations. — This  section  appears  to 
be  founded  upon  Siahibaiik  v.  Shepfird,  13  C. 
B.  418.  In  tills  case,  the  vessel  being  in  a 
foreign  port  and  in  a  damaged  condition,  tho 
master,  to  obtain  money  for  repairs,  executed 
bills  of  exchange  upon  his  owner,  and  an  instru- 
ment purporting  to  be  a  bottomry  bond,  by 
which  the  master  took  upon  himself  and  his 
owner  the  risk  of  the  voyage,  making  the  owner 
personally  liable  wiiether  the  vessel  arrived  or 


time  with,  and  as  a  collateral  security  for,  billa 
of cxcliaugedrawnon  theowner.  [Inu  hiciicase, 
if  the  bills  are  honored,  the  bottomry  is  dis- 
charged; if  dishonored,  the  bond  with  the  mari- 
time interest  is  eiiforceble  in  the  usual  method 
upon  the  arrival  of  tlie  shij).  Upon  this  point, 
see  'J'he  Ne!-<o}i,  1  llagg.  Adm.  174;  7\'te  L'maji- 
cijiation,  1  W.  lloh.  123;  The  Atla^,  Id.  421; 
TheAitcjn.fta,  1  Doil.  233.  See  the  same  opinion.] 
But  the  lawforbitls  the  creditor  to  have  adirect 


not,  and  also  expressly  granting  to  the  lender     remedy  upon  the  bond  itself  [as  in  this  case] 


the  benefit  of  the  usual  proceedings  in  rem  to 
enforce  liottoinry  bonds.  Applying  the  prin- 
ciple that  to  constitute  a  valid  bottomry  bond 
maritime  risks  must  be  undertaken,  this  tjues- 
tioii  a[ipears  easy  of  solution;  for  here  it  is 
evident  the  sea  risks  are  avoided.  But  there 
is  yet  another  principle  to  be  reconciled.  The 
distinguished  jurist  (ilarou  Parke),  in  delivering 
the  judgment  of  the  court,  says:  "In  giving  our 
opini(jn  that  this  instrument  is  invalid,  in 
liypotliecating  the  ship  absolutely,  we  must 
not  Ijc  sup[iosed  to  intimate  a  doubt  that  a 
bottomry  bond  may  not  be  given  at  the  same 


against  the  owner  as  well  as  the  ship,  and  it 
makes  it  essential  to  the  remedy  against  the 
ship  that  it  be  contingent  on  its  safe  arrival." 
Upon  these  grouuils  the  bond  was  held  invalid. 
The  following  American  cases  hold  to  the 
same  ell'ect  widi  respect  to  collateral  security, 
that  tho  bond  may  be  accompanied  by  bills  of 
exchange,  and  a  payment  of  one  extinguishes 
both:  The  Atkviti'-,  Newb.  Adm.  521);  The 
lltader,  1  Ware,  249;  Greebj  v.  Smith,  3  Woodb. 
&  IM.  252,  That  is,  if  the  vessel  be  not  lost,  a 
provision  for  a  personal  liability  does  not  invali- 
date the  bond:  Id.;  The  Draco,  '2  Sumn.  176. 


3023.    When  money  loaned  is  to  be  rejjaid. 

Sec.  3025.     In  case  of  a  total  loss  of  the  thing  hypothecated,  from  a  risk  to 

which  the  loan  was  subject,  the  lender  upon  bottomry  can  recover  nothing;  in 

case  of  a  partial  loss,  he  can  recover  only  to  the  extent  of  the  net  value  to  ths 

owner  of  the  part  saved. 

Total  los3. — Xothiug  sliort  of  an  actual 
total  loss  will  discharge  the  liability.  A  loss 
not  strictly  total  cannot  be  turned  into  a  total 
loss  by  abandonment,  so  as  to  excuse  the  bor- 
rower from  payment:  Po/^e  v.  Nickerson,  3 
Story,  405;  Thoiii/>soH  v.  lioijal  Ex.  Amtiir.  <'o., 
IG  East,  214.  Tlierefore  if  a  ship  is  captured, 
and  restored  to  the  owner,  it  is  a  <letention, 
and  not  a  loss  of  the  sliii):  Joyce  v.  WiUianuoii, 
3  Dou„'.  104;  but  if  captured,  condemned,  and 
sold,  it  is  a  loss  of  the  vessel:  A/ipleton  v. 
Vroirninahicld,  3  Mass.  441.  A  bottomry  and 
renpondi'idia  bond,  conditioned  to  be  void  in 
case  of   "utter  loss,"  is  not  discharged  by  a 


stranding  of  tho  vessel,  abandonment  to  in- 
surers as  a  totfil  loss,  and  a  sale  by  them  as  not 
worth  repairing,  if  the  vessel  exists  in  specie  at 
tho  time  of  the  sale;  and  tho  holder  of  such 
bond  is  entitled  to  the  ))roceed3  of  t!ie  cargo 
saved  as  against  the  insurers:  Delan-nre  Mitt. 
iS  '/.  /ns.  Co.  v.  (I'oMfer,  1  Holmes,  475.  See 
Ajiplelon  V.  CroirninKliiehl,  3  Mass.  448.  /»- 
snrance  v.  Go.istfi;  03  U.  S.  G45,  contains  a 
careful  consideration  of  tho  principle  forniu- 
lat'j(l  in  tliis  section. 

Net  value:  Co.le  de  Com.  327.     Such  is  the, 
usage  in  New  Yoik^ 


519 


g§  302(>-002S 


OBLIGATIONS. 


[D.v.  Ill,  Part  IV, 


S02S.    WJien  hoUomnj  loan  hecomeH  due. 

Sec.  o02G.  Unless  it  is  otherwise  expressly  agreed,  a  bottomry  loan  becomes 
due  imuicdiately  upon  the  termination  of  the  risk,  although  a  term  of  credit  is 
Bpecilied  in  the  contract. 


Termination  of  fis!i. — If  a  salft  or  transfer 
of  tlie  vessel  takes  place,  or  the  voyaj^e  is 
broken  np  i;i  any  manner  by  t'no  l)orrowor,  the 
marine  ri.^k  terminates:  The  Drci'V,  2  Sumn. 
lo7;  and  there  being  no  laclics,  the  lien  will 
'prevail  against  a /;oKrt^(/(.' piii-cliaser:  Id.;  and 
Wilimr  V.  'J'he  Smilax,  2  I'ct.  Adm.  2D5>  and 
note;   i'ai'sons  on  Ship.  &  Adin.  1-33. 

iio  also  where  th6  non-cOmpletion  of  the 
voyago  has  been  occasioned  by  the  fault  or 
misconduct  of  tlie  master  or  owner,  as  tlio  in- 
leutioaal  loss  of  the  vessel:  Pope  v.  JSlicLer^on, 


3  Story,  405*  Greehj  v.  Smith,  3  Woodb.  &  M. 
25S;  U'ilinev  v.  'J'he  Smiln.n,  2  Pet.  Adm.  295; 
Tliorndlke  v.  Stone,  11  Pick.  IS.'};  W-.'cU  v. 
Cook,  10  Mass.  510;  see  1  I'arsons  on  .'''lip.  & 
Adm.  137,  138;  or  by  a. on Ird  person:  Grtcli/v. 
^m;//^  3  Woodb.  &  M.  2^/;. 

l)3viation  from  the  intended  voyage  ren- 
ders the  bond  due:  Ilarmati  v.  Van,  J/cUton,  2 
Vcrn.  717;  Wilnicr  v.  The  SinUd.r,  2  Pet.  Adm. 
294;  Wester  aw.  Wild;/,  Skin.  lo2;  WiH.um-i  v. 
Siedinnn,  Id.  34J;  but  not  wlicn  the  deviation  ia 
Irom  necessity:  TJ(e  Armudiilo,  1  \V.  liob.  251. 


S027.    Bottomry  lien,  Jiow  lost. 

Sec.  .3027.     A  bottomry''  lien  is  independent  of  possession,  and  is  lost  by 
omission  to  enforce  it  within  a  reasonable  time. 


Lien  lost  by  laches. — "It  lias  been  decided 
that  nei:I;er  the  statute  of  Anne,  Willard  v. 
Dorr,  3  Mason  91,  101,  limiting  suits  in  the 
Englibh  admiralty,  nor  the  statute  of  limita- 
tions of  any  of  our  states,  Brown  v.  Jones,  2 
(jiall.  477,  is  of  any  force  in  our  admiralty 
courts:"  2  Parsons  on  .Ship.  &  Adm.  3G1.  Cut 
see  The  Blenheim,  5  Saw.  191,  cited  infra.  The 
courts  lean  toward  tlie  conimondaw  limitations, 
and  depart  from  them  only  for  grave  reasons: 
Id.;  r/te  iVara/i^?i?t,  2Snmn.  200,  212;  "  tiiere 
13  an  univci'sal  maxim,"  Vigi'autibas  non  dor- 
riientib'is  subveniunt  leges,  "and  admiralty  will 
not  enforce  stale  demands:  "  Id.;  The  Anne,  5 
Kob.  Adin.  100;  The  Sanih  Ann,  svpra.  If 
the  lender  delays  suit  for  an  unreasonable  time, 
and  without  reasonable  cause,  the  lien  will  be 
deemed  waived  againsta  subsequent  purchaser, 
or  attachment  creditor,  without  notice:  Fon- 
taine  v.  Beers,  19  Ala.  722;  B'aine  v.  The 
Charles  (.'nrler,  4  Craiich,  323;  Wilmer  v. 
The  Smilax,  2  Pet.  Adm.  29.j;  Lei  and  v.  The 
Medora,  2  Woodb.  &  M.  92;  The  Draco,  2  Sumn. 


157;  The  Nestor,  Id.  73;  The  Chiisnn,  2  Story, 
45.1;  permitting  the  vessel  to  make  several  voy- 
ages without  asserting  the  lien  avoids  it  as 
against  executions  levied  upon  her:  Blaine  v. 
Tile  Charlen  Carter,  4  Cranch,  328;  but  if  pro- 
ceeding? are  taken  within  a  rcasonaMc  time, 
the  mere  departure  of  the  vessel  from  the  return 
port  does  not  affect  the  lien:  Burke  v.  'J'he  M. 
J\  Rich,  1  ClilT.  308. 

Two  years  hn,ving  elapsed,  the  libelants 
having  Ijeen  at  all  times  capable  of  suing,  and 
the  rights  of  a  ?<o««  /^ 'e  incu  nbraiicer  having 
intervened,  held  euit  barred.  This  was  an 
action  by  passengers  to  recover  damages:  Gris- 
■wold  V.  Steamer  Nevada,  2  Saw.  144,  14G. 

"There  is  no  fixed  rule  of  limitadon  in  ad- 
miralt}',  but  the  matter  is  left  to  the  discretion 
of  the  court,  to  be  governed  by  the  facts  and 
circumstances  of  the  case,  considered  with  due 
reference  to  the  wants  and  convenience  of 
coniincrce,  and  the  analogies  of  local  laws  of 
limitation:"  The  Blenheim,  5  Saw,  194. 


3023.    Preference  of  bottomry  lien  over  other  liens. 

Sec.  3028.  A  bottomiy  lien,  if  created  out  of  a  real  or  apparent  necessity,  in 
good  faith,  is  joreferred  to  every  other  lien  or  claim  upon  the  same  thing, 
excepting  only  a  lien  for  seamen's  wages,  a  subsequent  lien  of  material-men  for 
supplies  or  repairs  indispensable  to  the  safety  of  the  ship,  and  a  subsequent 
lien  for  salvage. 

Bottomry  liea— If  created   by  the  owmer    ;vr  Kent,  J.,  and  note  4,  p.  2.'>.3-2.')8;  tliis  rule 


wichout  necessity,  or  belief  of  necessity  in  the 
lender,  there  is  no  preference  over  a  jirior  lien: 
T/ie  Dumjf'jan  Castle,  3  llagg.  Adm.  331;  The 
Jloyal  Arch,  1  Swa.  Ad.  209. 

Salvags. — The  commissitmers,  in  their  note, 
refer  simply  to  The  William  F.  Safford,  Lush. 
69.  In  this  case  salvage  is  referred  to  in  a 
mere  of  tiler  dictum:  "A  bond  is  entitled  to  prece- 
'Icncc  over  all  claims  except  wages  or  a  sub- 
Bequent  bond  or  salvage  claim."  But  it  had 
previously  iteen  iicld  by  Lord  Mansfield  that 
there  was  neither  salvage  nor  average  upon  a 
bottomry  bond:  Jo]ice\.  W!lli'i77ison,oDn\'^.  104; 
8ee  also,  to  same  effect,  Wtdpole  v.  Ewer  Park 
Ins.  ('o.,  pi'r  Lord  Kcnyon.  C.  J.;  Ilolvrtson  v. 
United  Jus.  Co.,  2  Johns,  Cas.  250,  252,  dictum 


"is  contrary  to  the  maritime  law  of  France, 
and  of  other  parts  of  Euro[)C,  and  in  Louisiana 
we  iiave  a  decision  against  it:  Chandler  v. 
Gamier,  IS  Mart.  599." 

Parsons,  I  Ship.  &  Adm.  151,  152,  says: 
"Bat  the  parties  may  stiiiulate  that  tlio  bond- 
holder shall  be  lialile  to  contribute  ia  general 
average:  Ins.  Co.  of  Penn.  v.  Dnval,  8  Serg.  & 
R.  139.  And  it  is  now  very  common  to  pro- 
vide that  he  shall  be  liable  botli  for  a\'erage 
and  salvage.  In  suc'.i  case  ho  contributes  only 
on  tlievaUu;  of  tlie  property  hypothecated,  with- 
out tlic  addition  of  maritime  interest,  and  lie 
is  entitled  to  conti'ibution  and  to  salvage: 
Uihsonv.  Phila.  Ins.  Co.,  1  Binn.  405." 

Seamen's  I'/ayes:  See  sees,  2048-20G(>. 


520 


TitLl:  XIV,  Chap.  V.]  EESPOXDEXTIA.  §§  3029-3040 

3029 .    Pr  orify  of  bottom ry  liens. 

Sec.  3029.     Of  two  or  more  bottomry  liens  on  tlie  same  subject,  the  latter  in 
date  has  preference,  if  created  out  of  necessity. 

This  -vvell-settled  principle  rests  upon  tlio  ami    tliey  are  really  concurrent,  they  will  be 

f round  tlmt    llie  lust   bond  saved   tlie  sliip:   1  pa'd /j;-o  ra/a,  tliough  they  bear  ditl'inviit  actual 

ii'.-sons  on  Ship.  &  Adm.  l(il.  dates:    Vhe  E'-'ti'T,  1   lloh.  A.lni.    17;^,  170;  La 

If  the  property  will  not  j^ay  all  the  bonds,  Coutstancia,  4  Notes  of  Cases,  515-518. 


CHAPTER  V. 

EESiOXDENTIA. 
30S6.    Ppspoiulentia,  what. 

Sec.  803G.  Piespondentia  is  a  contract  by  wliicli  a  cargo,  or  some  p.art  thereof, 
is  hyi:)0thecated  as  security  for  a  loan,  the  repayment  of  which  is  dcpciideut  on 

mariUnje  risks. 

Respondentia. — The  master  of  a  vessel  gen-  7'Ae  GrafitncHnp,  3  RoK    240;  Thf  Padcet,   3 

erally  haii  uoihin!;  to  do  with  the  cargo  of   his  Mason,  255;   The  U.    S.    Iti-^.   Co.    \.    S'-ntt,    I 

vesacl  between  tlic  lading  and  delivery;  but  if  Johns.  lOG;  FonUunc  v.  Vol.  Ins.  Co.,  9  Id.  29; 

a  dire  necfssity — fjreater  than  that  striii"ei!t  Scarle  v.  Scoi'ei,  4  Johns.  Cii.  222;  Amer.  Ins. 

necessity  mentioned  iu  note  to  section  .SC20,  Co.  v.  Co.s/cr,  3  I'aige,  3.2;'.;  J'ossy.  .'^hip  Active, 

ante — exists,  lie  may  sell  it,  or  pait  of  it,  oi'  2  Wasli.  21^\:  From  commissioners'  note. 

pled.'C  or  hypotiiccate  it,  by  means  of  a  rtspou-  See  Maltlaud  w  The  Allnvl'ic,   Newb.  Adm. 

dentia  boml,  in  order  to  raise  money  for  the  514;   Des'y's  Ship.  &  Atim.,  sec.  113;  Parsons 

common  beuelit:    Parsou  on  j\lerc.  Law,  o8C;  on  Sliip.  &  Adm.  105. 

8037.    Reapnndeulia  by  owner. 

Sec.  3037.     The  owner  of  cargo  may  hypothecate  it  upon  respondentia,  at  any 

time  and  place,  and  for  any  lawful  purpose. 

Like   bottomry,   it  may   be  made   by  the  sliould  be  expended  in  the  purtihase  of  good.s,  or 

owner  of  the  goods  at  home,  Avitliout  any  nei'cs-  in  any  way  about  them:  Coiiard  v.  Alltinl'ic  Ins. 

sity  cither  beiore  or  during  tlie  voya_,e;  and  it  Co.,  I    Pet.  380;  Franklin  lua.  Co,  v.  Lord,  4 

ma}'  be  so  made  to  take  up  a  former  bond;  and  Masou,  248. 
it  is   not  necessary  that  the  money  so   raised 

3038.    Pe.<2)o)idt'niia  by  master. 

Skc.  3038.  The  master  of  a  ship  may  hypothecate  his  cargo  upon  respon- 
dentia only  in  a  case  in  which  he  would  be  authorized  to  hypothecate  the  ship 
and  freightage,  but  is  unable  to  borrow  sufficient  money  thereon  for  repairs  or 
supplies  which  are  necessary  for  the  successful  accomplishment  of  the  voyage; 
and  he  cannot  do  so,  even  in  such  case,  if  there  is  no  reasonable  prospect  of 
benefiting  the  cargo  thereby. 

Master  s  aiitliorifcy. — A  part  or  tlie  whole  not  be  given  to  include  cargo  not  actually  oa 

of  tlie  c.'.rgo  may  be  hypothecated,  accoriling  to  b(Kird:    The  Ednwid,  Lush.  .)7. 

the  necessity  of  t;ie  case:   The  Lord  Coc'irdin',  The  same  rule  of  necessity  applies  here  as  ixx 

IW.  Rob.  o!2;  S.  (J.,  2  Id.  320;  Thp  U'<niwi:i,  3  the  case  of  bottomry. 

Id.  198;  Justin  v.  litdlam,  1  Salk.  34;  but  it  can-  Master  may  ssll  cargo:  Sec.  2379,  ante, 

3030.    Rale  <f  hylered. 

Sec  303'J.     The  provisions  of  sections  thirty  hundred  and  twenty-two  and 

thirty  hundred  and  twenty-nine  apply  e(iually  to  loans  on  respondentia. 

Marine  interest,  in  order  to  be  entitled  to,  the  lender  must  run  the  marine  risk:  Thomdikt 
V.  Stum-,  1 1  Pick.  187. 

3040.    Ohliijdlioiis  of  ship-owner. 

Six.  304;>.     The  owner  of  a  ship  is  bound  to  repay  to  the  owner  of  its  cargo 

all  which  the  latter  is  compelled  to  pay,  under  a  contract  of  respondentia  made 

by  the  master,  ia  order  to  discharge  its  lien. 

To  the  s\n\3  eJeot:  Puncan  v.  lienxon,  1  Ivlaster  personally  responsible:  Soc.  23S3, 
I'xcii.  537;  and  see  also  sec.  2385,  aide.  ante. 

621 


3046 


OEJJGATIOXS, 


[Div.  Ill,  Paet  IV, 


CHAPTER  VI. 

OTHER  LIENS. 
3046.    Lirn  of  seller  of  real  property. 

Sec.  304G,  One  who  sells  real  property  lias  a  vendor's  lien  thei'eon,  inde- 
pendent of  possession,  for  so  much  of  the  price  as  remains  unpaid  and  unsecured 
otherwise  than  by  the  personal  obligation  of  the  buyer. 

Vendor's  implied  lien. — This  is  a  cloctiine  chase  money  due  the  vendor:  ^ffirqiiat  v.  Mar- 

ii.sh  courts  of  cliancery,  and  has  been  (/iiat,  7  How.  Pr.  417;   Cha//muu  v.  Al/rahnins, 

lieieiit  judges  upon  dili'ercnt  grounds;  Gl  Ala.  lOS;  see  McKiUip  v.  McKdlip,  8  liarb. 

to  the  doctrUie  that  it  is  a  "nat-  bo'l. 

Execution. — The  equitable  lien  held  by  the 
Vendor  of  real  estate  after  absolute  conveyance 
thereof  is  not  subject  to  levy  and  .sale  on  exe- 
cution; at  least,  if  the  purciiaser  at  such  sale 

_  acijuires  any  title  it  is  only  an  cr|uity,  to  hi  en- 

Ihat  it  rests   upon   the  supposeil  intention   <jf  forced   by  apiiropriate  proceedings   in  eijuitj'; 

the  p:ii-ties.     All  of  these  theories  are  open  to  but  the  indebtedness  secured   by  the  lien  may 

objections:  Jones  on  Mortgages,  sec.  190.     This  be  sold  under  execution:    lioss  v.   JItinUeu,  5Q 

doctiine  of  the  vendor's  lien  for  the  jiurchase  Cal.  313. 

money  has  been  adopted  in  upwards  of  half  '•  Cut  it  seems,  at  least  in  California,  that  all 

the  United  States:  Id.,  sec.   191.     Mr.  Jones,  kinds  of  clioses  in  action  may  be  levied  upon 

Mo:tgages,  sec.   191,  note,  says:  "It  is  to  be  and  sold,  except  contingent  and  complicated 

noticed  that  within  a  few  years  several  states  contracts,  of  which  the  true  amount  and  value 

have   abolished    this   implied    lien,    and   that  cannot   be  ascertained:"   Freeman  on  Execu- 

strong  expressions  of  disapprobation  of  the  doc-  lions,  sec.  112;  and  see  "Attachment,"  "Ti- 

trine   liave  been    used  in   others.     It   may  be  tie,"  infra. 

doubted,  therefore,  whether  this  doctrine  will  Jlomeslend. — Land  on  which  a  vendor's  lien 

long  survive."   As  inconsistent  with  the  general  exists  may  become  a  homesteail,  but  tlie  home- 

[lolicy  prevailing  in  this  country  to  make  all  stead  right  is  subordinate  to  the  lien:   MiUpti- 

matters  of  title  depend  upon  record  evidence,  drij  v.  Rei  ly,  13  Cal.  7<3;    WiUiams  v.  Young, 

see  Ciuef  Justice  Marshall's  remarks  in  Bayhy  17  Cal.  403. 

v.  Greenleaf.  7  Wiieat.  46,  51;  pi-r  Treat,  J.,  in  Price. — This  lien  exists  only  where  land  haa 


of  the  K 
bused  by 
some  adhenii 
iiial  eipiity:"  Sparks  v.  lles^,  15  Cal.  136; 
Elimn  v.  JacLxon  IF.  Co.,  12  Id.  542;  others 
considering  it  as  an  implied  trust:  Bait  v. 
Wilxoi),  28  Id.  (332,  existing  in  the  vendee  in 
favor    of    the    vendor;    and    others   sugtresting 


Conovar  v.  Warren,  1  Gilin.  498,  502;  Yancey 
V.  Mauck,  15  Gratt.  300,  In  the  United  States 
courts  tlie  doctrine  has  never  been  affirmed,  ex- 
ce]it  where  established  by  the  local  law  of  tlie 
different  Lstates:  Bayley  v.  Greenleaf,  7  Wheat. 
46;  McLeurn  v.  McLellan,  10  Pet.  G25,  G40; 
Chilton  V.  Bra'xlen,  2  Black,  45S.  From  the 
nature  of  this  "silent "  lieu,  it  is  often  brought 
into  contact  with  other  rights,  at  least  equa  ly 
equitable,  ami  the  inevitable  result  follows  tlsat 
the  cases  are  ccjnflicting,  and  sometimes  irrecon- 
cilable even  in  the  same  state.  "This  is  emi- 
nently a  subject  of  case  law.  To  a  large  degree 
each  case  is  a  law  unto  itself  and  unto  no  other 
case.  The  in(juiry  in  every  case  is  wlietlur 
there  are  other  equities  superior  to  this  lien,  or 


been  sold  for  money,  and  cannot  be  used  to  en- 
force other  obligations:  ih'KlUlp  v.  MrKdlip, 
8  Baro.  552;  nor  for  unliquidated  and  uncer- 
tain demands:  Iliscork  v.  A'ortoii;  Jones  on 
Mortg;iges,  sec.  194;  but  see  Dabolx  v.  Hull,  43 
Barb.  26,  and  McDole  v.  Purdy,  21)  Iowa,  277; 
nor  for  a  covenant  or  ai^rcemeut:  Ar  in  v. 
Brown,  44  N.  H.  102;  Chase  v.  Feck,  21  N.  Y. 
5S1;  Chapman  v.  Beards'ey,  31  Conn.  115; 
Ilare  v.  Van  Dusen,  32  Bub.  92.  But  a  note 
payable  iu  certificates  of  indebtedness  is  se- 
cured by  the  lien  equally  as  if  pa3'able  in 
monvy:  Deanon  v.  Taylor,  53  Miss.  G'J/. 

Price  must  be  money,  paid  or  promised: 
Beii:a:nin  on  Sales,  sec.  2. 

Waiver  and  loss  of  tli3   lien. — Personal 


whether  it  has  bjcn  waived  by  any  act  of  the  security  of  the  buyer,  acceptance  of,  does  not 
party  claiming  it:"  Jones  on  Morttjages,  sec.  waive  the  lien:  Gouldin  v.  BucLdew.  4 Cal.  107; 
192;  see  also  La^jow  v.  Bddollet,  12"Am.  Dec.  Walk  r  v.  Sedgicv-k,  8  Id.  398;  Banm  v. 
262,  note.  The  leading  case  on  this  subject  is  Grijsby,  21  Id.  172;  Ilonore  v.  Bakewi-H,  43 
Mac'n-eth  v.  Symmons,  15  Ves.  329;  S.  C,  1  Am.  Dec.  147;  Jones  on  Mortgages,  sec.  198. 
Lead.  Cas.  iu  Eq.,  4tii  Am.  ed.,  447,  and  the  Extending  tiaie  on  such  securicy  (Kies  not  ex- 
very  learned  and  extensive  note  by  the  Amer-  tinguish  the  lien:  Truebody  v.  Jaro'ison,  2  Cal. 
lean  editors,  4S1.  269;  Aldrid /e  v.  Dunn,  41  Am.  Dec.  224.  It 
Ciroumstanoes  affecting  tlae  lien.— The  has  been  held  that  where  the  vendor  brings  his 
lien  is  pre-ume  1  to  exist  in  all  cases,  unless  an  action  at  law  upon  such  collaterals,  lie  should 
iatentiiui  l)e  clearly  manifest  that  it  shall  not  in  that  action,    if  at  all,   unite  his  equitable 


exist:  Macrelh  v.  Si/mmons,  15  Ves.  329;  True- 
body  v.  Jacbson,  2  Cal.  260;  Clark  v.  Halt,  7 
Paige,  oSJ;  Wdson  v.  Lyon.  51  III.  166;  Fry  v. 
Prewett,  58  Miss.  783;  Gilinan  v.  Brou-n,  1 
Mason,    191,  213;    Gurson   v.  Green,   1  Johns. 


claim  for  a  foreclosure  of  his  lien,  the  same 
tribunal  administering  both  law  and  equity: 
W<dker  V.  Sedgwick,  8  Cal.  398. 

Distinct  and  independent  security. — The  silent 
lien  of  the  vendor  is  extinguished  wlunexer  he 


Ch.  308;  see  Peniingtoa  Y.  7rigifins,iii  Ca\.(j20;  manifests  an  intention  to  alwndon  or  not  to 

and  the  burden  of  repe-ling  the  presumption  look  at  it.     And  this  intention  is  manfested  by 

lies  upon  the  vendee:    Id.  taking   other  and  independeno  security   upon 

The    lieu    does    not   arise    in   favor  of  one  the  same  land,  or  a  portion  of  it,  or  on  other 

who   advances    money  to    the    vendee   at   his  laud,  although  such  security    or   mortgage  is 

request,  for  the  payment  of  part  of  the  pur-  void:  Jjuut   v.    Water)7Mn,   12  Cal.  301;  C'a??i- 


52-2 


Title  XIV,  Chap.  VI.] 


OTHER  LIENS. 


3046 


den  V.  Vail,  23  IJ.  G^S;  Grifo}  r.  Blanrhar,  17 
Id.  70;  Baum  v.  (■rhj4,ii,  'Jl  I<1.  17:.';  WdU  v. 
Ilarter,  56  Id.  312;  see  Jones  on  2iIortt;a^es, 
sec.  207;  but  see  Ai-mstro7i(j  v.  Boss,  20  N.  J. 
Eq.  107. 

If  a  mortgage  be  given  upon  a  part  of  the 
estate  jiurchaseil,  the  inference  is  that  it  was 
not  intended  that  the  rest  of  it  should  )je 
affected  Ijy  the  lien:  Broiciiv.  Gilman,  4  Wheat. 
255;  Phillips  v.  Sauinle7-son,  1  Siiicd.  &  M.  Ch. 
402;  F.sh  v.  IJow'aud,  1  Paige,  20,  30;  llasMl 
V.  Scoll,  uG  Ind.  50 1.  But  it  the  mortgage  was 
void,  this  does  not  invalidate  the  debt  itself, 
which  was  intended  to  be  secured:  Shaver  v. 
B.  n.  d:  A.  Co.,  lOCah  30G. 

And  a  verbal  agiecmcnt  by  the  vendee  to  re- 
convey  the  land  to  the  vendor,  if  ho  does  not 
pay  the  purcliase  price,  docs  not  ilischarge  the 
lien:  Ga'la<jher  v.  Mars,  50  Cul.  23. 

But  this  rule  of  the  lien,  being  discharged  by 
the  acceptance,  even,  of  void  security,  does 
not  prevail  where  tlie  vendor  is  misled  by  the 
fraudulent  misrepresentations  of  the  vendee: 
Corb  V.  Fouqeray,  3j  Barb.  195,  199;  Fouch  v. 
Wilson,  GO  ind.  04. 

Olh''r  indi'peiulent  securities:  See  Jones  on 
Mortgages,  sec.  207.  Acceptance  of  a  guaran- 
teed note  will  not  discharge  the  lien:  Barms  v. 
Roulhac,  2  Bush,  39;  Tienian  v.  Thurman,  14 
B.  Mou.  277.  But  in  general,  the  acceptance 
of  the  obligation  of  a  tliii'd  person,  even  as  a 
surety  or  indorser,  is  sniiicient:  See  Baum  v. 
Orijsbi/,  21  Cal.  172,  175;  MacrcLhw  Sijmmoiis, 
1  Load.  Cas.  in  Erj.,  4th  Am.  cd.,  4S5. 

Prlra.i  faoia  evidence  of  ■waiver. — The  ac- 
ceptance of  a  distinct  and  separate  security  for 
the  puT-chase  money  is  jirima  facie  a  waiver  of 
the  vendor's  lien,  but  it  is  only  im^ia  facie, 
and  may  be  rebutted.  In  tliis  case  the  plaint- 
ili  manifested  throug^iout  an  intention  lo  rely 
upon  the  land  as  secarit}',  and  his  vendor's  lien 
was  therefore  not  waived:  Remingloii  v.  Iliu- 
gins,  54  Cal.  20;  Grijlii  v.  Blanch  n-,  17  Id.  70; 
Marshall  v.  L'hrislma^,  39  Am.  Dec.  199.  Of 
course  an  agreement  not  to  waive  the  lien  may 
be  made:  Baum  v.  Grljshu,  21  Id.  172;  Dowjh- 
aday  v.  Paine,  G  Minn.  413.  The  burden  of 
proof  to  repel  the  presumption  of  waiver  of 
course  restsupoa  tlio  verdict:  While  v.  Dowjh- 
er!ij.  Mart.  &  Y.  3J9;  Brevird  v.  Sammar,  2 
Heisk.  97;  and  proof  that  the  vendor  relied 
upon  the  land  as  well  as  U)on  such  security  is 
held  to  be  sufficient  in  rebuttal:  Remington  v. 
Uiggin^,  54  Id.  029;  WilUw  Ga>/, -iSTox.  433. 

ii  trauofor  of  pDrsoaal  saourity  waives  the 
lien:  Sec.  3J47,  i.fr-t. 

Trouslar  hy  V3ad33  to  bona  fide  purcliaser 
orincumbranccr  di  ocliargeslieu :  Sec.  3043,  infra. 

I'lnforoemont  ox  II3I1.— The  vendor's  lien  is 
to  be  viewed  in  two  aspects: 

1.  As  it  exists  under  a  contract  or  bond  to 
convey  the  property,  tlu  title  still  remaining  in 
the  vemlor. 

2.  As  it  exists  after  a  conveyance  of  the  prop- 
erty, the  title  subsisting  in  t!ie  vendee. 

//*  the  former  cn-<e  tlic  vendor's  lien  retained 
is  different  from  the  ordinary  lien  of  a  vendor 
after  convey  aico  executed.  Ilis  position  is 
somewhat  similar  to  tint  of  a  party  executing 
a  conveyance  and  takin  ,'  a  mortgage  back.  II3 
may  in  bath  cases  sues  at  1  uv  f.)r  the  b  ilaaco  of 
hij  purchase  mouc}',  or  file  his  bill  in  equity 
for  the  specific  ]icrf(>rmance  of  the  conti'act: 
Sparks  V.  Iless,  15  Cal.  ISO;  Goic'dfii  v.  Ihickc- 
lew,  4  Id.  107.     Mr.  Jones  says  it  is  a  misuse 


of  terms  to  call  this  a  vendor's  lien,  it  is  so  rad- 
ically different  from  the  usual  lien:  Jones  on 
Moib.  -^'Zo;  ••  vueveudeeuas  merely  a:i  equity  of 
r^'Vmption  in  the  land:  "  Id.  It  is  i.ot  waived 
or  lost,  as  an  implied  lien  is,  by  accepting  other 
security:  McCaslin  \.  State,  A\lw\.  151;  Boze- 
man  v.  Iiey,  49  Ala.  75;  .'Strickland  v.  Somer- 
ville,  bo  Mo.  1G4;  Price  v.  Lnuve,  49  Tex.  74; 
Jones  on  ?,Iortgages,  sec.  232. 

In  the  latter  case  the  vendor  has  parted  with 
the  legal  and  equitable  ti^le,  and  possesses  only 
a  bare  right,  not  a  speoiiic  and  aljsnlutc  charge 
u])on  the  property.  It  is  of  no  oi)crative  force 
and  effect  until  established  by  the  decree  of  a 
court  of  equity:  Sparks  v.  JJiss,  15  U.il.  ISO,  ffr 
Field,  J.;  Ellison  v.  Jackson  W.  Co.,  12  Id. 
542.  The  equitable  remedy  in  both  may  be  en- 
forced in  the  first  instance  and  before  the 
vendor  has  exhausted  his  legal  reiiieily  against 
the  personal  estate  of  the  vendee.  In  some 
states  the  contrary  rule  that  the  legal  remedy 
must  lirst  be  exhausted  prevails:  Jones  oa 
Mortgages,  sec.  219.  The  court  can  by  its 
decree,  afier  determining  the  amount  of  the 
lien,  either  direct  a  sale  of  the  property  for 
its  satisfaction  and  execution  fur  any  defi- 
ciency, or  award  an  execution  in  the  first 
place,  and  a  sale  only  in  the  event  of  its  re- 
turn unsatisfied,  as  the  justice  of  the  case  may 
re(iuire:  Sparks  v.  //e-s,  15  Cal.  IbO.  The 
term  within  which  payment  may  be  made  by 
the  vendee  to  extinguish  the  lien  is  limited,  and 
ends  alter  a  sale  under  a  judgment  fur  the  pur- 
cliase money:  Truebody  v.  ^acrAso/*,  2  11.  2G9; 
but  sea  Code  Civ.  Proc,  sec.  700.  See  also  an 
example  of  specifically  eufurcing  a  contract  for 
the  sale  of  realty  and  at  the  same  time  charg- 
ing the  land  with  the  vendor's  lien:  Fletcher  v. 
Motcer,  55  Cal.  119.  And  for  otlier  examples 
of  enforcing  the  lien  of  the  vendor,  see  Lake  v. 
Tebbi'ts,  50  Id.  481. 

Attachment. — As  a  result  of  the  above  dis- 
tinction, it  has  been  deduced  tliat  tlie  vendor's 
lion  in  the  former  case  is  of  suliicient  force  and 
effect  (Ijcing  in  effect  a  mortgage,  supra)  to 
restrain  the  vendor  from  taking  out  an  attach- 
ment for  the  unpaid  purchase  money,  under  the 
section  of  the  Code  of  Civil  Procedure  prohibit- 
ing such  action  when  the  creditor  iiolds  security 
for  the  debt:   Hill  v.  Grigs'nj,  32  Cal.  bj. 

While  in  the  latter  case  the  lien  is  held  to 
be  not  of  a  sufficiently  fixed  and  determined 
character  to  restrain  the  creditor  from  resorting 
to  tlie  summary  process  of  attachment:  Porter 
v.  Brooks,  35  Cal.  199,  where  the  court  say,  page 
292:  "  If  it  be  conceded  that  the  plaintii'  had  a 
vendor's  lien  of  a  fixesl  and  determinate  charac- 
ter, tlie  case  would  fall  strictly  within  //ill  v. 
Gri'/<hy,  32  Id.  55.  *  *  *  If  the  plaintiff  retained 
a  vendor's  lien  under  the  circumstances,  it  was 
Daly  an  equita'jlo  riglit  to  resort  to  t!ie  land  for 
pa.mcnt,  wliicli  right  was  liable  t)  be  de- 
feated by  an  alienation  or  incuaibrauco  made 
by  the  vendee  to  a  b/itafi  le  purchaser."  This 
ii  not  sucli  a  lien  as  seeurei  a  debt  i:i  the  sense 
of  t!ie  statute.  It  is  to  bj  remarked  that  the 
Vendee  in  this  cas3  had  conveyed  the  property 
to  a  tli'rd  person  before  action  co  nmenced,  and 
t!i  it  the  court  decided  in  effect  tliat  under 
t'.ijse  circumstances  the  vendor  was  not  bound 
to  test  t'lo  bona  (ides  of  t'.ie  s  de  to  see  whether 
his  lien  still  existed  or  not.  But  in  a  concur- 
ring opinion  Sawyer,  C.  J.,  cL-arly  distinguishes 
the  ca;e  of  Hill  v.  Grigshy,  32  Id.  33.  Sander* 
son,  J.,  and  Hhodes,  J.,  dissent. 


523 


§§  3047,  3048 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


Assignment. — It  is  p;enera1Iy  accepted  tliat 
tliis  lieu  is  not  a'^signablo,  but  h  personal  to 
the  vendor:  Jones  on  Mortgages,  sec.  212; 
Lewis  V.  Coril/aad,  21  Cal.  17S;  Williams  v. 
Young,  Id.  227;  AWs  v.  //einizcn,  3G  Id.  313; 
Buiim  V.  Grifju'ri/.  21  Id.  172.  But  where  the 
contract  cf  sale  is  unexecuted,  the  vend  ir  "c;in 
assign  iiis  (^ontraet  with  the  conveyance  of  the 
titici  jinci  111  sucli  case  his  assignee  will  acquire 
the  samu  rights  and  he  subject  to  the  same  lia- 
bilities as  himself:"  Id.  172-177,  2'*^'*  Field, 
C.J. 

MisosUaneous  question.3. — Where  a  home- 
Btead  lias  been  declared  upon  the  property  sub- 
bcqueiit  to  the  attaching  of  the  vendor's!  lien, 
tlie  pioperty  will  be  held  in  subordination  to 
the  ventior's  lien.     But  a  sale  under  execution 


on  the  judgment  at  law  for  the  purchase  money 
will  nut  under  such  circumstances  pass  the  title, 
for  such  sale  passes,  if  at  all,  only  the  legal  in- 
terest of  the  homestead  declarants,  and  this 
interest  is  not  leviable.  Such  sale  does  not  pass 
the  equity  of  the  vendor  to  have  the  land  .sold, 
because  such  sale  is  not  an  enforcement  of  the 
lien.  In  this  case  the  title  would  pass  only  by 
regular  chancery  proceedings  to  enforce  the  lien: 
WWiams  V.  Young,  17  Cal.  403;  see  Al'en  v. 
Phelps,  4  Id.  256.  Where  land  ij  sold  under  a 
decree  enforcing  a  vendor's  lien,  the  title  passes 
acainst  minors  who  are  i-epresented  in  tlio  suit 
by  their  guardian  ad  litem,  and  they  cannot  after 
majority  maintain  ejectment  for  the  laud:  J/e- 
foux  V.  H'ebti;  53  Id.  130. 


3347.    When  Iranft/er  of  contract  ivaives  lien. 

Sec.  304:7.  "Where  a  buyer  of  real  propex-ty  gives  to  the  seller  a  wntten  con- 
tract for  payment  of  all  or  j^art  of  the  price,  an  absolute  transfer  of  such  con- 
tract by  the  seller  waives  his  lien  to  the  extent  of.  the  sum  payable  under  the 
contract,  but  a  transfer  of  such  contract  in  truso  to  pay  debts,  and  return  the 
surplus,  is  not  a  waiver  of  the  lien. 


Transfer  of  contract. — It  has  been  seen 
that  tlKS  lien  is  not  assignable:  Sec.  3343,  note 
"Assignment,"  niqira;  Bnim  v.  Griij'^liy,  21 
Cal.  172;  and  is  extinguished  by  the  transfer 
of  indebtedness:  Hoxs  v.  //eiiitzeii,  3G  Id.  313; 
except  where  the  vendor  retains  the  title:  Baam 

(irifj>:by,  suprn. 


is  made  for  the  benefit  of  a  third  person,  or  ho 
is  merely  a  purchaser  of  the  note,  there  is  no 
peculiar  equity  in  his  favor;  bat  when  the 
transfer  is  for  the  security  or  payment  of  the 
vendor's  own  debt  the  eipiity  continues;  the 
assignee,  in  such  case,  holding  the  lien  as  well 
for  tiie  benelitof  the  assignor  as  lor  himself,  is 


But  where,  in  a  deed  conveying  land,  there     subrogated  to  all  his  equities:"  Joueson  Mort- 


was   a    reservation    in    express    terms    to    the 
grantor  of  a  lieu  to  secure  the  payment  of  two 

} promissory  notes  for  a  part  of  the  price,  such 
ien  is  mo.e  tlian  a  vendor's  lien;  it  is,  in  fact, 
an  equitable  mortgage  upon  the  laud  which 
passes  with  the  assignment  of  the  promissory 
notes:  Diugley  v.  liadkof  Ventura,  57  Cal.  4G7. 
It  has  been  held  that  if  tiie  note  cainj  back 
to  the  vendor  ills  lien  wouhl  revive:  Cot'eii  v. 
JlcO'e'.ee,  54  Miss.  510;  liojers  v.  James,  .33 
Ark.  77;  see  Scott  v.  Alann,  33  Tox.  157,  and 
iiifra. 

*Tran3{3r  in  trust  to  pay  dsbts.— "The 
reason  is  said  to  ba  that  when  the  assignment 


gages,  sec.  210;  Carlton  v.  Dackner,  28  Ark. 
03;  Craiulry  v.  liim/s,  24  II.  503;  Plowman  v. 
Riddle,  14  Ala.  109;  as  an  assignjieut  lor  the 
beiiCilt  of  creditors:  11a  leek  v.  Smith,  3  B.irb. 
237.  272. 

Aiioclisr  exseption  i3  sometimes  al- 
lowed.— If  the  vendor  indoroe  the  note,  and 
is  afterwards  obliged  to  take  it  up  at  maturity 
upjn  the  failure  of  the  vendee  to  [lay,  the  lien 
is  held  to  revive  and  take  effect  m  if  no  assign- 
ment had  been  male:  Kellif  v.  Paine,  13  Ala. 
371;  Tar.ier  v.  Horner,  23  Ark.  44J;  White  v. 
Wdl'iani'^,  1  Paige,  502;  Limey  v.  Bates,  42 
Miss.  307;  and  iiee  supra. 


3048.    Extent  of  seller's  lien. 

Sec.  3348.  The  liens  defined  in  sections  thirty  hundred  and  forty-six  and 
thirty  hundred  and  fifty  are  valid  against  ever}'  one  claiming  under  the  debtor, 
except  a  purchaser  or  incumbrancer  in  good  faith  and  for  value. 

Cl3:niia3  unier  th3  debtor.— Tlie  lien  ex-     17  B  Mon.  082;  andagaimt  voluntary  assignees 

ill  insolvency  who  arc  also  not  deemed  hoaa^fide 
pure '.lasers:  Warren  v.  F-nn,  23  Biirb.  333; 
Sh'rl''y  v.  Congress  etc.  I'ejincry,  2  E.lw.  505; 
l)ut  see  Bailey  v.  G.een'caf,  7  Wheat.  4G; 
Jones  on  Mortgages,  sec.  19;).  Also  against  a 
Voluntary  donee:  (Jpshaw  v.  Ilarijrov-,  0  Smed. 
&  M.  283,  202;  Doyle  v.  Orr,  ol  Miss.  220; 
M'tr-<li  V.  Turner,  4  Mo.  253;  Taylor  v,  AUo- 
u-ay.  3  Litt.  210. 

A3  a^iinst  heirs,  the  lien  will  attacli  upon 
im[)rovemcnt3  made  on  tlu  land  by  t!io  vendee 
ill  his  life-time:  Warner  v,  I'an  .lls'yiie,  3 
Paige,  513,  514;  PA.y/6  v.  Warded,  5  Id.  208; 
Cojk  V.  Craft,  41  llow.  Pr.  270.  Upon  a  sale 
of  the  land  for  debts,  after  the  vendee's  death, 
the  purchase  money  is  f  rst  to  be  paid  out  of 
the  proceeds:  While  v.  Casauavt,  1  liar.  &  J. 
106. 


ists  agai.ut  thj  vendee  and  his  heirs:  Burt  v. 
Wil^o:i,  28  Cal.  0.]2;  or  his  administrator: 
Cahoo.i  V.  RJhiis:j:i,  0  Id.  225;  agai.ist  his 
privies  in  estatj,  and  against  subsequent  pur- 
chasers who  h  ivc  notice  of  it.  The  fact  of 
notorious  and  exclusive  possession  by  a  stran- 
ger, tlie  person  lioMing  the  vendor's  lien,  is 
ButHcieit  [iroof  of  notice,  in  the  absence  of  re- 
butting t33tiinj;iy:  Pell  v.  McElroy,  33  Id. 
208;  and  see  intra,  herein. 

The  lien  also  exists  agiinst  those  who  take  a 
conveyance  of  tlic  estate  without  alvaiuiig 
any  njw  considjr.ition,  so  tliat  tliey  are  nob 
purchasers  fjr  valae:  B'lrlin^jaine  v.  Ro'ihins, 
21  Ba;  1).  327;  llallerk  v.  Sml'h,  3  Id.  207;  High 
V.  Batte.  '0  Yerg.  183,  3  55;  Perkins  v.  Swank, 
43  Miss  310;  Chance  v.  Mc  Whorter,  23  G.a.  315; 
Moii.nce  v.  Byers,  10  Id.  400;  Gault  v.  TirmOo, 


524 


Title  XIV,  Cqap.  VI.] 


OTHER  LIENS. 


§3049 


Notice  ma}'  be  actual,  as  where  tne  pur- 
cliascr  13  iuformcil  by  tiie  parties:  llar^b  n-ijf-r 
V.  Foreman,  SI  I.l.  ii'j4;  or  constructive  from 
possessiini:  PMw  J/cLV^'oy,  ."G  Gil.  2G3;  from 
the  pcuiloncy  of  a  suit  of  which  the  i.urchaser 
is  cognizant  to  euiorce  the  lien:  G'n-yor?/  v. 
Ilayncs,  13  LI.  591;  Tharj^e  v.  JJunlap,  4 
Hciiik.  074;  or  from  recitals  iii  the  deed  under 
which  the  veudce  claims,  showing  that  the 
purchase  money  has  not  been  paid,  aUhough 
the  docd  be  not  recorded,  for  he  can  only  niaue 
title  by  a  deed  which  leads  him  to  this  fact, 
and  he  must  t'lcrefore  be  presumed  to  be  cog- 
nizant of  it:  Cordova  v.  JJood,  17  Wall.  1; 
Matikh  V.  Shcar<r,  49  Ala.  220;  Thrncui  v. 
Thunnan,  14  B.  iMon.  'J24;  Dowjhaduy  v.  Pain<>, 
6  Minn.  443;  V.'idls  v.  (Jay,  48  Tex.  403. 
Knowledge  of  the  lien  by  the  buyer's  agent 
■would  be  sulhcient:  iday  v.  Borel,  \'l  Cal.  91; 
and  see  sec.  19,  aide. 

This  defense  of  no  notice  is  not  available  to 
the  purchaser  if  the  purchase  money  has  not 
been  actually  paid  Leiore  notice  was  received: 
Camjiljctl  V.  i.on-h,  4.')  Ala.  GG7;  see  Weaver  v. 
Bardcn,  49  N.  Y.  '280;  Dre^er  v.  J/o.  <C.-  Iowa 
li'y  t'onx.  Co.,  93  U.  S.  92;  Ilonore  v.  Bnkeicell, 
43  Am.  Dec.  147;  see  note  to  sec.  2930,  ante. 

Eona  Cdo  ptircliassr  or  iuoumbrauoer  for 
valuo  without  nou::e. — 2>Iorlfia<j"x's. — In  case 
of  a  mortgage  made  upon  the  property  by  the 
the  vendee  to  a  bona  Ju/e  mortgagee,  the  lieu 
of  the  vendor  Mill  still  attach  to  the  equity  of 
redemption  of  the  vendee,  and  upon  a  fore- 
closure tif  the  mortgage  the  lien  may  be  en- 
forced upon  the  surplus:  Broicn  v.  Porter,  2 
Brown  N.  P.  12;  see  Arnold  v.  Putriek,  G  Paige, 
310;  Tinxley  v.  r\nsl,y,  bl  Iowa,  14.  When 
the  consuleration  of  tlie  mortgage  is  a  pre-exist- 
ing debt,  it  wi.l  not  prevail  against  tiie  debt. 
The  amount  of  the  debt  was  uotadvanced  upon 
the  faith  of  the  property  mortgaged,  therefore 


the  mortgagee  is  not  a  honafide  purchaser,  etc. : 
Chance  v.  McWhorton,  20  Cia.  315,  320;  see 
Pejipcr  V.  Georfje,  51  Ala.  190. 

Jiidf/ment  and  attachinej  cre'Iilor/t. — Judg- 
ments as  well  as  mortgages  may  be  t;.ken  to  se- 
cure future  advances:  liohinsou  V.  Wdliamfi,  22 
N.  Y.  3S0,  3S3;  Freeman  on  Judgments,  sec.  397; 
and  when  such  judgment  creditor  advancts  hia 
money  on  the  faith  of  an  unincumbered  title, 
he  is  regarded  as  a  quasi  purchaser  for  a  valu- 
able consideration,  and  having  no  notice,  hia 
judgment  is  sustained  against  the  lien  of  the 
Vendor:  llulett  v.   Whipjile,  58  Barb.  224. 

As  to  the  effect  of  this  lien  ui^on  the  vendee's 
creditors  the  cases  are  in  conflict;  some  hold- 
ing that  having  become  a  creditor  and  attached 
the  land  without  notice  of  tiie  lien,  he  is  not 
atrected  by  it:  Allen  v.  Boring,  34  Iowa,  499; 
Webb  V,  Iiobinxon,  14  Ga.  210;  xidamn  v.  Bu- 
elianan,  49  JIo.  G4;  Bober-d  v.  J,'ose,  2  Humph. 
145,  147;  Johnson  v.  Cawthorn,  1  Dev.  &  B. 
Eq.  32,  35.  Other  cases  hold  that  a  judg- 
ment creditor  takes  only  what  belongs  to 
his  debtor,  and  takes  subject  to  all  e(|uitie3 
which  exist  in  favor  of  tiie  vendor:  Walton  v. 
llargrovex,  42  Miss.  IS;  Lewis  v.  Caperion,  8 
Gratt.  148;  see  O'Bonrke  v.  O'Coniier,  39  Cal, 
442,  where  is  is  held  that  a  judgment  creditor 
occupies  no  better  position  than  a  purcl  aser 
with  notice,  and  therefore  when  he  levies  upoa 
pro;)erty  ajiparently  belonging  to  his  debtor, 
liut  in  fact  held  by  the  debtor  under  an  abso- 
lute deed  intended  as  a  mortgage,  he  may  be 
enjoined  from  selling  the  projierty. 

The  former  rule  appears  to  the  American 
editors  in  Jfac/creth  v.  Symmons,  1  Wiiite  & 
Tudor's  Lead.  Gas.  Eq.,  pt.  1,  4th  ed.,  497- 
502,  the  more  logical  and  consistent.  See  also 
the  reasoning  of  Marshall,  C.  J.,  in  Buyley  v. 
Greenleaf,  1  Wheat.  46. 


3040.    Lien  of  seller  of  personal  joroperfy. 

Sec.  3049.  One  who  sells  personal  property  has  a  special  lien  thereon,  depend- 
ent on  possession,  for  its  price,  if  it  is  in  his  possession  when  the  price  becomes 
payable,  and  may  enforce  his  lieu  in  like  manner  as  if  the  property  was  pledged 
to  hiia  for  the  price. 

Remedy  of  the  vendor  of  psrsonalfcy. —  v.  Demetz,  53  N.  Y.  42G;  Kan/man  v.  Austin, 
In  Duii.-^laa   v.  Mc Andrew,   44  N.    Y.  72,  the     57  Ga.  87. 

rule  16  thus  stated:  "The  vendor  of  personal  Llodo  of  sale. — The  law,  however,  haa 
proiicrty,  in  a  suit  against  the  ven  lee  for  not  eitabhslied  no  particular  mode  of  resale.  The 
taking  and  paying  lor  the  property,  has  the  seller,  oa  the  resale,  must  dispose  of  the  goods 
choice,  ordiu  iri.y,  of  one  of  tiiree  remedies:  I.  in  good  faith,  in  the  mode  bjst  eaiculatcd  to 
He  may  8tO"e  or  retain  the  property  for  the  produce  thc'.r  value:  Bar/ley  v.  Findlay,  82  IlL 
vendee,  and  sue   him  for  the  entire  pr.ce;  2.     524;  and  within  a  reasonable  time:  Pickering 

V.  Birdwdl,  21  Wis.  502;  Broirnlee  v.  JJoUon, 
41  Mich.  218;  Smith  v.  Pettee,  7J  N.  Y.  13,  18; 
Bosenbaum  v.  Weeden,  IS  Gralt.  7'15,  797;  Sal- 
olUii  v.  Mitchell,  45  111.  79,  85. 

Nolicf. — As  to  what  kind  of  notice,  if  any, 
is  required,  the  decisions  dilTcr,  However,  a 
fair  inference  from  tiie  cases  is  that  although 
no  not'ce  of  the  resale  itself  may  l)e  necessary, 
yet  tliat  notice  of  the  intention  of  the  vendor 
to  resort  to  this  means  of  recovering  the  con- 
tract price  by  a  resale  and  a  resort  to  tlie  ven- 
dee for  the  delicicncy  should  be  given  to  the 
vendee:  llollaud  v.  Ben,  48  MiJii.  218,  224; 
Bedniond  v.  Smork,  23  Ind.  3G.>,  370;  Cashell 
V.  Morris,  7  Watts  &  S.  22;  Salalin  v. 
Michidl,  45  III.  70,  85;  McClnre  v.  Wdl/ams, 
UniLtd    tilatts,   4 


lie  may  sell  the  property,  acting  as  the  agent 
for  tliis  p.irpose,  of  t.ie  vendee,  and  recover  the 
diiTerencj  between  the  contract  price,  and  the 
pricj  of  resale;  or,  ,i.  He  may  keep  tiic  prop- 
erty as  his  own,  ami  recover  the  difference  be- 
tween the  nnrk'-'t  price  at  tlie  time  and  place 
of  delivery  an  1  the  coutract  price."  Tncse 
princip'es  have  bjeii  fo»lowed  in  Shiwha:!.  v. 
Van  S'rd,  25  Ohio  St.  490;  Holland  v.  He  i, 
43  Mich.  218;  Be/l  v.  Of  alt,  10  Basil,  032; 
Mason  V.  Derl.er,  72  N.  Y.  595, 599;  Ba-jley  v. 
Findl'xy,  82  lib  524;  Youwj  v.  Merlens,  27  Md. 
114,  120. 

The  riv;ht  of  resale  by  the  vendor  is  recog- 
nized in  iS  inds  v.  Taylor,  5  Johns.  395,  leadmg 
cases;  Haines  v.  Tucker,  50  N.  II.   313;    H'Vii^- 


majtv. /iOa/-tinia?i,  118  Masa.  242,  247;  V/a^«/e/i    5  Sueed,    718;    IJwjhea    v 

6-2j 


§§  5050.  3051 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


Ct.  of  CI.  04,  74;  Bibcoch  v.  Bonnell,  SO  N.  Y. 
244. 

It  is  unflf)nl)teilly  better  to  give  notice  of 
the  time  uiid  jjlace  of  the  sale,  as  it  stren^;tllcll8 
the  proof  of  lairneas,  but  it  often  happens  that 
the  goods  can  be  best  sold  at  piivate  sale,  when 
notice  of  the  time  and  place  of  tlie  sale  l)e- 
comes  impracticable  and  unnecessary:  PolU-n 
V.  Li'rvu,  ;^0  N.  Y.  549,  55G;  UUmwn  v.  Kvnt, 
GO  III.  -271;  Lewis  v.  Greider,  51  N.  Y.  2;JI, 
230;  J\lcGi>bou  v.  Schtessitiger,  IS  Hun,  2-25. 

The  coilo  conimissionei's  say:  "It  has  in  lei-d 
been  held  thr.t  the  property  ma}*  be  resold  at 
private  sale  in  certain  cases:  Crooks  w  Illoore, 
1  Sandf.  297;  but  upon  the  whole,  the  rule 
provided  foi*  sales  oT  property  under  pledge, 
section  ■')005,  ante,  is  the  better  rule,  and  is  here 
adopted."  if  it  is  "here  adopted"  exclusively, 
the  question  of  notice  is  solved.  It  is  always 
necessary:  Sec.  3002. 

Delivery  of  possession  to  the  buyer  is  a 
waiver  of  the  lien:  Lupin  v.  Marie,  6  Wend. 
77;  S.  C,  21  Am.  Dec.  256;  Welsh  v.  Belt,  32 
Pa.  12,  17;  Musleqoii  1  homing  Co,  v.  Under- 
hill,  43  Mich.  020;  llasklns  v.  Warren,  IIG 
]\Liss.  300;  Johnson  v,  Farnum,  50  Ga.  144; 
Bamett  v.  Mason,  7  Ark.  253.  But  a  delivery  .  i 
part  of  the  goods,  such  as  would  satisfy  the  stat- 
ute of  frauds,  section  1739,  subdivision  2,  ante, 
is  not  a  delivery  of  the  whole  so  as  to  divest 
the  vendor's  lien,  unless  such  is  the  manii'e.st 
intention:  Benjamin  on  Sales,  Bennett's  cd., 
sees.  801,  805;  Parts  v.  Hall,  2  Pick.  20G,  212, 
31;!;  l}a.-<Lell  v.  Rice,  11  Gray,  240;  BncUry  v. 
Furnlss,  17  Wend.  504.  A  carrier  may  d'  li\er 
a  part  of  the  goods,  and  yet  retain  his  lien  f.ir 
the  whole  of  his  freight  and  charges  upon  the 

£050.    Purchaser's  lien  on  real  propertij. 

Sec.  3050.  One  who  pays  to  the  owner  any  part  of  the  price  of  real  property, 
under  an  agreement  for  the  sale  thereof,  Las  a  special  lien  upon  the  property, 
independent  of  possession,  for  such  part  of  the  amount  paid  as  be  may  be 
entitled  to  recover  back,  in  case  of  a  failure  of  consideration. 


residue:  Potts  v,  N.  Y.  <L-  N.  E.  R.  R.,  131 
Mass.  455. 

Although  the  vendor's  common- law  lien  ia 
lost  by  delivery  to  the  buyer,  this  will  not  pre- 
vent the  parties  from  agreeing  that  a  lien  sliall 
exist  after  delivery.  Such  agreeimnt  will  be 
vr.lid  as  between  the  partirs:  Grrgory  v.  Mor- 
ris, 90  U.  S.  019,  023;  1  lusted  v.  Jm/raham,  75 
N.  Y.  251,  257;  Sainjer  v.  Fi:ker/:]2  Me.  28; 
Bimn  V.  Valley  Lumber  Co.,  51  Wis.  370,  380. 

Snle  on  credit,  or  where  a  bill  of  exchange 
has  been  taken  for  the  price,  waivca  t!ie  Len, 
and  entitles  the  seller  to  immeiliate  pijssession: 
Leonard  v.  Davis,  1  B!:^Lk,  470,  483;  MrNail 
V.  Zehjler,  08  111.  224;  Thompson  v.  Wedge,  50 
Wis.  642;  McCraw  v.  Gilmer,  83  N.  C.  102; 
Johnson  v.  Farnum,  56  Ga.  144;  Dempsey  v. 
Carson,  1 1  U.  C.  C.  P.  402. 

But  the  insolvency  of  the  buyer,  while  the  ven- 
dor still  retains  possession  of  the  goods,  revives 
the  lien:  Arnold  v.  Delano,  4  Cu::!i.  33;  I'arks 
V.  JIall,  2  Pick.  206,  211;  White  v.  Welsh, 
38  Pa.  St.  390,  420;  Parker  v.  Bi/rnes,  1  Low. 
530,  540;  Re  Batchelder,  2  Id.  245,  248; 
Benedict  v.  Field,  10  N.  Y.  595;  Mill.ken  v. 
Warren,  57  Me.  40,  50;  Clark  v.  Draper,  19  N. 
H.  419;  Sovthwestern  Freight  eti:  Co.  v.  Stannrd, 
44  Mo.  71,  84;  Hunter  v."  Talhot,  11  Miss.  754; 
see  Babcoc.lc  v.  Bonnell,  80  N.  Y.  244;  when 
the  vendor  must  retain  the  goods  until  the  ex- 
piration of  the  credit,  and  may  then  proceed 
to  enforcement  of  the  lien  by  .sale,  see  gen- 
erally 2  Corbin's  Benjamin  on  Sales,  1020,  note 
5,  1028,  note  4;  Bennett's  Benj  .min  on  Sales, 
ed.  1SS4,  sec.  788,  p.  001,  note;  note  to  Lupin 
V.  Marie,  21  Am.  Dec.  201. 


If  A.  makes  a  verbal  contract  with  B.  to  sell 
him  a  tract  of  land,  and  puts  B.  in  possession 
thereof,  judgment  credit(U-s  of  B.  do  not  there- 
l*y)  'jy  virtue  of  the  lien  of  tlieir  judgment,  or 
the  levy  of  an  execution,  accjuiresuch  an  inter- 
est in  the  land  as  to  entitle  them  to  be  subro- 
gated to  B. 's  rights,  and  to  com[)el  A.  to  make 
a  conveyance  to  them  upon  paying  him  the 
purchase  priee  which  B.  was  to  pay:  Logan  v. 
Hale,  42  Cal.  645. 


"Money  paid  by  a  vendee  of  land  prema- 
turely, or  before  receiving  a  conveyance,  m  a 
charge  upon  tlie  estate  in  the  hands  of  the  ven- 
dor, or  in  the  hands  of  his  grantee  with  noti'-c:" 
Jones  on  Mortgages,  sec.  223;  2  Story's  Ivp 
Jur.,  sec.  1217;  Lane  v.  Ludlow,  6  Paige,  310, 
note;  C/utse  v.  Peek,  21  N,  Y.  531,  585;  Tom/>- 
kins  V.  Seely,  29  Barb.  212;  Wickman  v.  Rob- 
inson, 14  Wis.  493;  Cooper  v.  Merritt,  30  Ark. 
QS(\;Ste.irarl\\  iroor/,  03  Mo.  252;  i?ro?nj  v.  Fast, 
5  Mon.  405,  407;  Shirley  \\  Shirley,  7  Blackf.  452. 

8051.    Lien  for  services, 

Seo.  3051.  Everj'  person  wbo,  while  lawfully  in  possession  of  an  article  of 
personal  property,  renders  any  service  to  the  owner  thereof,  by  labor  or  skill, 
employed  for  the  i^rotection,  improvement,  safe  keeping-,  or  carriage  thereof, 
has  a  special  lien  thereon,  dependent  on  possession,  for  the  compensation,  if 
any,  which  is  duo  to  him  from  the  owner  for  such  service;  and  livery  or  board- 
ing or  feed  stable  proprietors,  and  jjersons  pasturing  horses  or  stock,  have  a 
lien,  dependent  on  possession,  for  their  compensation  in  caring  for,  boarding, 
feeding,  or  pasturing  such  horses  or  stock.  [Amendment,  npprovrd  March  29, 
1878;  Amendmenls  1877-8,  89;  took  effect  sixtieth  day  after  pa ssarje.] 

The  otisinal  seotion  read  as  follows:  renders  any  service   to  the  owner  thereof  by 

"3051.     Every  person  who,  while  lawfully     labor  or  skill  employed  for  the  pjotection,  im- 

in  possession  of  an  article  of  personai  property,     provement,  safekeeping,  or  carnage  thereof, 

52S 


Title  XIV,  Chap.  VI.]  OTHER  LIENS.  §§  3052-3058 

has  a  special  lien  thereon,  dependent  on  pos-  agreement  or  statute:  Levns  v.  TyJer,  23  Cal. 

session,  for  tlie  compensation,  if  any,  wliicli  is  301.     April  4,  1S70,  an  act  was  passed  in  this 

due  to  liiin  from  tlie  owner  for  such  service."  state   "to  secure  a  l:en  on  live-stock  kept,  fed. 

Generally,  where  no  ol)ligation  of  a  public  or  pastured  by  ranclinieu  and  staule-keci)ers," 

nature  to  receive  tlie  articles  exists,  the  lien  is  which  was  not  repealed  by  the  codes:  Johnston 

restiicted  to  those  cases  in   which  the  bailee  v.  Perr?/,  53  Cal.  3.")1;  nevertheless,  in  1878,  the 

has  conferred  sunie  additional  value  upon  the  above  section  was  amended  in  this  respect,  the 

subject-matter  of  the  baihnent,  and  no  lien  ex-  clause   "and  livery  and  boardini:,"  etc.,  l)eing 

ists  simply  from  taking  care  of  property,  sub-  added.     Whether  this  amendment  must  be  con- 

ject,    of  course,    to  the   exception   mentioned:  siderod  as  repealing  the  statute  of  1S70,  see  sec. 

Mclntyri'  v.  <  'arver,  37  Am.  Dec,  519,  note  522;  20,  ante;  ancl  Johnson  v.  Perry,  supra,  353. 
Lfzvifs  V.  Tyler,  23  Cal.  364.  Warehousemen's  liens:  See  note  to  Stein- 

Agistera. — Tlierefore,  one  who  merely  pro-  man  v.  U'ilLins,  42  Am.  Dec.  257. 
vides  food  for  and  takes  care  of  an  animal.         Carriers'  lieu:  Sees.  2144,  2101. 
as  an  agister  or  livery-stable  keeper,  has  no         Loggers'  lien:  See  in  note  to  sec  3060. 
lien  thereupon,  in  the  absence  of  any  special 

8052.  Liens  on  personal  properly. 

Sec.  3u52.  A  person  wlio  makes,  alters,  or  repairs  any  ai'ticle  of  personal 
property,  at  the  request  of  the  owner  or  legal  possessor  of  the  jjroperty,  has  a 
lien  on  the  same  for  his  reasonable  charges  for  work  done  and  materials  fur- 
nished, and  may  retain  possession  of  the  same  until  the  charges  are  paid.  If 
not  paid  within  two  months  after  the  work  is  done,  the  person  may  proceed  to 
sell  the  joroperty  at  public  auction,  by  giving  ten  days'  public  notice  of  the  sale 
by  advertising  in  some  newspaper  published  in  the  county  in  which  the  work 
was  done;  or,  if  there  be  no  newspaper  published  in  the  county,  then  by  post- 
ing up  notices  of  the  sale  in  three  of  the  most  public  places  in  the  town  where 
the  work  was  done,  for  ten  days  previous  to  the  sale.  The  proceeds  of  the  sale 
must  be  applied  to  the  discharge  of  the  lien  and  the  cost  of  keeping  and  selling 
the  propcit}';  the  remainder,  if  any,  must  be  paid  over  to  the  owner  thereof. 

"Stats.  ISGS,  p.  589,  sec.  15,  act  for  securing  enforcement  of  liens,  including  liens  of  mcchan- 
liens  of  mecliauics  and  others;  see  also  Code  ics  and  others  on  real  property,  and  liens  for 
Civ.   I'roc.   Cal.,  c.  I,  2,  3,  tit.  4,  pt.  3,  of  the     salaries  and  wages:"  Commissioners'  note. 

8053.  Lien  of  factor. 

Sec.  3C53.  A  factor  has  a  general  lien,  dependent  on  possession,  for  all  that 
is  due  to  him  as  such,  upon  all  articles  of  commercial  value  that  are  intrusted 
to  him  by  the  same  principal. 

PcvT-er  of  pleds'ng:  See  .sees.  2874,  2001.  Lost  by  surrender  of   possession:  Sec 

Factors' enforcement  of  lien:  Sec.  2027.        2913,  note. 

8054.  JJanLa-'.s  lien. 

Sec.  3054.  A  banker  has  a  general  lien,  dependent  on  possession,  upon  all 
property  in  his  hands  belonging  to  a  customer,  for  the  balance  due  to  him  from 
Buch  customer  in  the  course  of  the  business. 

Bankers    lien. — The   rule  of    the    text  is  St.  475,  the  general  rule  was  laid  down   that 

adoi^ted    in    <'ovnnercial    Bank   of  Albany  v.  fun  Is  deposited  in  a  bank  fur  a  sjiecial  purpose 

Hwjlu's,  17  ^Veud.  1)4:  Marsh  v.  Oneida  iJaiilc,  known  to  the  bank  cannot  be  withheld  from 

34  Barb.  208;  //t  re  Willianv^,  3  Ired.  Eq.  3t0;  that  purpose,  to  the  end  that  they  may  be  set 

Ford  v.  'J'horiiloii,  3  Leigh,  C95;  J^lcDowell  v.  off  by  the  bank  against  a  debt  due  it  from  the 

Bank  of  WihniiKj'oii,  1  Harr.  (Del.)  360.  depositor:  Morse  on  Banks  and  Banking,  42  et 

In  Bank  of  United  States  v.  Macalester,  9  Pa.  seq. 

3055.  SIn'p-masler's  lien. 

Sec.  3055.  The  master  of  a  ship  has  a  general  Hen,  independent  of  possession, 
upon  the  ship  and  freightage,  for  advances  necessarily  made  or  liabilities  neces- 
Barily  incurred  by  him  for  the  benefit  of  the  ship,  but  has  no  lien  for  his  wages. 

Master's  lieu  on  freight:  See  Frothimjham  v.  Jennings,  1  Cal.  42. 

3056.  Seamen's  lien. 

Sec.  305G.  The  mate  and  seamen  of  a  ship  have  a  general  lien,  independent 
of  possession,  upon  the  ship  and  freightage,  for  their  wages,  which  is  superior 
to  evei^^  other  lien. 

527 


S;  r.057-:i07G  obligations.  [Div.  Id,  Part  IV 

liiena   for   ■wagcs^  Code   Civ.   Proc.,   sees,  liave  authority  to  mal:e  artvanccs  fnrtlic  benefit 

] •204-120(3.     Tlie    (''d    doctrine  tliat   freight  is  of  the  s!ii|i,  except  by  order  of  tlio  master,  tiiero> 

tlie  fiiolh'jr  of  wages,  und  that  no  wages  can  lie  in  no  reason  for  [jiving  the:  i  a  pccnliar  lien  for 

r;'c>iverc(l  if  no  freight  is  earned,  is  abolislied  sucli  advances.  Seamen's  lien  siip^'riov:  S(!C  .sec. 

by  U.  S.  R.  S.,  sec.  4325;   see   Dosty's  Ship.  &  302S,  antt',  and  note:"     Conanis-jiouers'  obser- 

Adm.,  .'src.  IGI.  vaLious. 

Lien  for   advances. — "As   seamen   cannot 

SC57.    Officer's  lien. 

Sec.  3057.  An  officer  wbo  levies  an  attacbment  or  execution  upon  personal 
jiroperty  acquires  a  .special  lien,  dependent  on  possession,  upon  such  property, 
vv^hicli  aulLorizes  Liin  to  bold  it  until  the  process  is  discharged  or  satislied,  or  a- 
judicial  sale  of  the  property  is  had. 

Attaclinicnt,  levying  viTTit  of:  Code  Civ.  Proc.,  sees.  CF2etseq.;  see  Freeman  on  Execu- 
Pmc.,  -sees.  ,',42  et  seij.  tions,  sees.  195-207. 

IIssGiitions,   levying  writ  of:    Code  Civ. 

SC53.    Judgmenl  lien. 

Sec.  3058.  The  lien  of  a  judgement  is  regulated  by  tbo  Code  of  Civil  Pro- 
cedure. 

Code  Civ.  Proc.,  sees.  G71,  674. 

3359.   Mechanic's  lien. 

Sec.  3059.  The  liens  of  mechanics,  for  ruaterials  and  services  upon  real  prop- 
erty, are  regulated  by  the  Code  of  Civil  Procedure. 

Code  Civ.  Proc,  sees.  1183-1199;  see  also  sec.  3052,  ante, 

S060.    Lien  on  ships. 

Sec.   30C0.     Debts  amounting  to  at  least  fifty  dollars,  contracted  for  the 

benefit  of  ships,  are  liens  in  the  cases  j)rovided  by  the  Code  of  Civil  Procedure. 
Code  Civ.  Proc.,  sec.  813.  Civ.  Proc.     That  act  does  not  apply  to  con- 

Other  lisns. — Lien  of  innJxeper  ami  board-     tracts  entered  into  prior  to  passage-  ShuJJleton 

hui-house  kee>ier:  See  sees.  18G1-I803,  ante.  v.  UiU,  02  Cal.  483. 

Lofj<jev^s  licn:  See  statute  to  sec.  1183,  Code 


CHAPTER  Vir.^ 

STOPPAGE  IN  TRANSIT, 
3076.    When  consignor  may  stop  good&. 

Sec.  307G.  A  seller  or  consignor  of  property,  whose  claim  for  its  price  or  pro- 
ceeds has  not  been  extinguished,  may,  upon  the  insolvency  of  the  buyer  or  con- 
signee becoming  known  to  him  after  parting  with  the  property,  stop  it  while  on 
its  transit  to  the  buj'er  or  consignee,  and  resume  possession  thereof. 

Nature  of  the  right  of  stoppage  in  tran-  terone,  and  the  one  supported  by  the  greater 
Bitu — It  ia  originally  an  equitable  doctrine,  weight  of  authorities:  Benjamin  on  Sales,  .sec. 
introduced  into  tlie  English  law  merchant,  8G7;  Story  on  Sales,  sec.  320;  Uoidcy  v.  B'lrjt- 
and  thence  into  the  common  law  from  the  /o/r,  2.'>  Am.  Dec.  GOT;  Newludl  v.  Vani'i.^,  29 
equity  courts.  The  doctrine  rests,  in  the  Id.  480;  Stanton  v.  Eager,  IG  Pick.  4()7;  At- 
la:i;;uage  of  Lord  Keeper  Henley,  on  tlie  i'/w  v.  Colby,  20  N.  II.  154;  Blum  v.  Mnrkx,  21 
"solid  reason  tiiat  the  goods  of  one  man  should  La.  Ann.  208;  Benedict  v.  Schacttle,  12  Ohio 
not  be  applied  in  payment  of  another  man's  St.  515.  The  property  is  recognized  as  l)eing 
debts:"  jyAqiiila  v.  Lamhert,  1  Anib.  300.  irrevocably  in  the  purchaser  when  the  right  is 
For  this  reason,  it  is  a  right  lughly  favored  by  exercised,  for  "unless  the  property  passed 
the  law:  Ufujamin  on  Sales,  830;  2  Kent's  there  would  be  no  need  of  the  right  ot  stcjpping 
Com.  .540;  Iloust.  Stop,  in  Trans.  1-3;  Cibren  in  transitu:"  /"er  Willes,  J.,  in  Ballon  v.  I.an- 
v.  Camphell,  ?>d  Pa.  St.  254;  Calahan  v.  Bdh-  casli'ire  etc.  Co.,  L.  R.,  1  C.  P.,  4;i9;  Bn/nolda 
cock,  21  Ohio  St.  231;  I.islee  v.  Lane,  57  N.  II.  v.  Boslon  rW.  li.  11,  43  N.  II.  580;  Dl,:[manv. 
454.  Doubt  has  been  expressed  as  to  whether  WlUiams,  50  ]\Iiss.  500.  Therefure,  as  this  is 
this  privilege  of  t!ie  vendor  is  in  its  nature  a  merely  an  extension  of  the  vendor's  lien,  the 
riglit  to  i-escind  the  contract  of  sale,  or  a  right  vendor  need  not  refund  what  has  l)ec'n  paid  as 
to  resume  the  "  vendor's  lien"  lost  by  jiarting  part  of  the  price  by  the  vendee,  before  exer- 
with  the  actual  possession  of  the  goodi.  The  cising  the  right:  Newhall  v.  Vanja^,  20  Am. 
latter  is  the  doctrine  adopted  by  this  co;!e,  sec-  Dec.'4S0;  Ilaij>i  v.  Monille,  14  Pa.  St  48;  NeW' 
tioa  3080,  infra,  and  is  unquestionably  the  bet-     hall  v.  Vargas,  33  Am.  Dec.  G17.   After  the  stop- 

52a 


♦Title  XIV.  Chap.  VII. 


STOPPAGE  m  TPvANSIT. 


§3078 


page  has  been  effected,  the  parties  standing  in         Transfer  hy  vendee  after  notice  of  stoppage  to 

tliesameposlLionasif  the  vendor  had  not  piute J  carrier;  nejotiability. — "The   only  direct  de- 

witli  the  possession,  the  vendor  is  to  proceed  as  cisiou  on  this  point  seems  to  be  Xetuh:i.ll  v.  O. 

in  the  enforcement  of  an  ordinary  vendor's  lien,  P.  /?.  A'.,  51  Cul.  343:"  Corbin's  Benjamin  on 

by  holding  the  property  until  the  expiration  of  Sales,  p.  110-1,  note  28.     In  this  case  the  court 

the  credit,  and  then  proceeding  to  sale  on  no-  decide  that  if,  after  the  vendee's  iniolveucy 

tice:  Sec.  S049,  and  note,  ant';  Bxbcockv.  Bon-  and  notice  by  the  vendor  to  tlio  carrier  to  stop 

nell,  CON.  Y.  241,  249;  see  Stanton  v.  Eager,  the  goods,  the  vendee  indorses  the  bill  cf  lading 

10  Piclc.  473;  Krivhall  v.   Vargas^  15  Me.  314;  in  the  usual  course  of  business  to  a  third  person 

S.  C,  29  Am.  Dec.  489.  ^  who  advances  money  t'.icreon,  in  good  faith, 

V/ho  may  eneroiso  the  right — The  right  and  -without  knowlcd^'c  of  the   insolvency  of 

of  stoppa'^c  in  transitu  belongs  only  to  one  oc-  the  vendee,  or  of  thenotilication  to  tlse  c::'.rrier, 

cupying  the  relation  of  vendor  ovquaxi  vendor  tiie  assignee  obtains  food  title,  and  the  carrier 

toward  the  consi  j;nee  of  the  goods:  Lenjamin  should  deliver  liim  the  goods  as  against  tha 


on  Sales,  sec.  Sr>0.  A  factor  or  correspondent 
purchasing  j;oods  upon  the  order  of  his  princi- 
pal, but  paying  lor  tlicm  in  his  ov/n  money,  or 
buying  tlieni  on  his  own  credit,  and  shipping 
them  to  his  principal  at  the  original  price,  with 
his  charges  and  commissions  added,  may  stop 
the  gootls  in  (ransitic  where  the  principal  be- 
comes insolvent:  Neichall  v.  Vargai^,  29  Am. 
Dec.  489;  Snjmojir  v.  Neivton,  1C3  Mass.  272. 
An  agent  who  has  the  power  to  act  for  the  con- 


vendor.  "The  case  seems  doubtful,  cxce])tia 
these  states  where  a  bill  of  lading  lias  bccu 
made  negotiable  in  tlie  same  sense  as  a  ])roinis- 
sory  note:"  Corbin's  Benjamin  on  Sales,  cd. 
1SS3,  p.  1105.  For  if  the  bill  of  lading  is  not 
negotiable,  and  the  assignor  can  tran:5fcr  no 
better  title  than  he  has  hnnsc'.f,  he  could  hava 
transferred  in  this  case  no  right  of  possession 
to  his  assignee  after  that  right  had  been  taken  , 
away  by  the  notice  to  the  carrier.     Therefore 


signor,  citlicr  generally  or  for  the  purposes  of  this   case   must    be   considered    as    indirectly 

the   consignment   in   question,    may    stop  the  declaring  the  negotiability  of  bill3.of  lading:, 

goods  in  trmsi'ii  without  any  authority  spe-  See  sec.  2127,  ante,  and  note.  "'J 

cially  directed  to  that  end:  Heijnolds  v.  Boston        Bona  Jides  of  assignee. — The  assif^nce  or  in-- 

dk  Maine  /'.  7.\,  43  N.  11.  589;  Bell  v.  3Ioss,  5  dorsee  must  of  course  receive  the  instrntnent 

Whart.  1C9;  JJurijy  Cement  Co.  v.  O'Brien,  123  witlioat  fraud,  in  the  ordinary  course  of  busi- 

Mass.  12;  Chandler  v.  Fulton,  10  Tex.  2;  Ben-  ness,  for  value  and  without  notice  of  the  cxist- 

jamin  on  Sales,  see.  804.     Buta  ratiflcation  of  ing  equities:  Sees.  3123,  3124,  post;  but  see  sec. 

such  act,  done  by  an  unathorized  agent,  can-  3033,  ;)0S^.   Thcrcforelaiowledgoin  the  indorsee 

not  be  niale  after  a  demand  by  the  assignees  of  the  vendee's  iusnlveney  is  relevant  evidence 

in   bankruptcy   for  a  delivery  of   the  goods:  i^i   attacking   the  bona  Jules  of  the  transfer: 


Bird  V.  Brown,  4  Exch.  78G. 

Tlie  insolvency  of  one  who  was  not  the  pur- 
chaser of  t!ie  goods,  but  upon  whose  promise  to 
pay  they  were  famished,  gives  no  right  to  stop 
tlie  goods:  Baton-  v.  Coo/;,  32  Vt.  68.  Such 
person  is  not  t'le  vendee:  Id. 

Likewise,  where  tlie  seller  ships  at  the  buy- 
er's request  to  a  third  person,  in  the  name  of 
the  buyer  as  consignor,  the  right  does  not  exist: 
Jioideij  V.  lugelow,  12  Pick.  307,  314;  Tread- 
well  V.  Aijd'ett,  i)  lleisk.  3S8;  see  Gicin  v.  llick- 
mond  d;  Danrltle  U.  li.,  85  N.  C.  423. 

Taking  no'zzs  or  bills  of  ci:o!ian33  as 
seourliy  or  actujil  part  paymono  does  not 
destroy  the  right:  Arnold  v.  JJe'aiio,  4  Cash. 
33;  Neichall  v.'la/v/as,  29  Am.  Dec.  489;  Jlai/i 
y.  Monille,  14  Pa.  St.  48;  Ilowatt  v.  Davis,  7 
Am.  Doe.  G31;  Siubbs  v.  Lund,  7  jMass.  433; 
JJonalh  V.  IJroomheitd,  7  Pa.  St.  3J1 ;  even  if 
the  note  has  been  negotiated:  Newhdl  v.  Var- 
gas, supra.  But  payment  by  note  of  a  third 
person  destroys  the  privilege:  Eaton  v.  Cook, 
32  Vt.  53;  sjo  Ikll  v.  Moss,  5  Whart.  189; 
Beiij-.min  o;i  Sale?!,  sec.  833. 

I:idor32iH2iii  of  bill  of  lading  — AVhere  the 
vendee  lias  possession  of  the  bill  of  lading, 
with  the  vcntlor's  consent,  and  indorses  it  to  a 
bonajide  purchaser  of  the  goods  for  value,  this 


Loe.b  V.  Peters,  G3  Ala.  243;  Seymour  v.  New- 
ton, 103  .Mass,  273;  Atkins  v.  Co'by,  2)  N.  H. 
134;  Kitchen  v.  Spe  ir,  30  Vt.  543;  Coirll  v. 
Ilitchcoc^:,  23  Wend.  Oil;  but  not  tlio  mere 
knowledge  that  tlie  goods  have  not  been  paid 
for:  Cuming  Y.  Brown.,  9  East,  500;  B.jnjamia 
on  Sales,  sec.  8GG;  Chandler  v.  Fulton,  10  Tex. 
2;  Dows  V.  Perrin,  IGN.  Y.  323, 

Assignees  in  insolvency  are  not  bona  fidi 
purchasers:  Bell  v.  Moss.  5  Whart.  183;  sea 
sec.  3013,  note,  ante,  "Claiming under  Debtor." 
But  an  assignment  to  another  in  trust  to  devote 
the  proceeds  of  the  goods  to  the  payment  of  the 
vendor  is  good  against  attaeliing  creditors.  The 
vendor's  consent,  tlie  act  being  for  his  benefit, 
is  presumed:  Le  Cacheux  v.  Cutter,  0  C;d.  314. 

At-.i3hn3iit,  cnoouiloii,  or  o':h3r  lioa 
agalnsi  tho  purchnssr  do33  uoi  dafaat 
"  Tills  rijlit  of  stoppage  in  transitu,  is  para, 
mount  to  any  lien  on  the  goods  claimed  l^y  tliirj' 
persons  against  the  purchaser.  Thus  it  r.iay  be 
exercised  to  defeat  an  attachment  or  exccutioa 
levied  upon  t'.ie  goods  by  a  creditor  of  the  ven- 
dee." /-"cr Crockett.  J.,  \n  B'aclcmanw  Piere, 
23  Cal.  533,  511;  Ililliard  on  Sales,  233;  Na;/. 
ijr\.  Dennie,  19 Am.  Dec.  319;  lleppw  Clorer, 
33  III.  20j;  UucUeyw  Furniss,  15  Wend.  137; 
D'lrgif  V.    0'/!rien,   123   JIass.   12.     Nor   does 


operates  as  a  transfer  of  the  goods  so  as  to    tlie  cari'icr's  lieu  fir  freight  defeat  the  vendor's 


defeat  the  right  of  stoppage  in  transitu:  Ben 
jamin  on  Sales,  sec.  802;  Llck'iarrow  v.  Mason, 
2  T.  11.  03:  S.  C,  1  II.  Black.  237;  O  East,  21 ; 
I  Smith's  Lead.  Cas.,  Gth  Am.  cd.,  103^,  and 
note;  Chandler  v.  Fulton,  10  Tex.  2;  Auden- 
reid  V.  Randall,  3  Cliff.  09;  Daws  v.  Perrin, 
10  N.  Y.  323;  Bawls  v.  Didder,  4  Abb.  A-tp 


right;  bat  such  clai:n  must  bo  first  paid:  ./  iric' 
son  V.  Nlcho',  5  B  ng.  533;  Potts  v.  N.  Y.  <t'  N, 
E.  /?.  /.'.,  131  JIass.  45-;  liacker  v.  DonovaUt 
13  Kan.  231,  230. 

Fraud  olpurohasar. — "The  prevailing  opin- 
ion ij  that  the  rig'.it  exists  only  in  case  of  the  in 
solvency  of  tlie  pnrcliaser,  and  tliii  is  no  doub* 


Dee.  12;    Walter  v.  Ross,  2  Wash.  233;  Becker  the  correct  view  of  tlie  matter:  Bjnjamin  on 

V.  llallgarten,  83  N.  Y.  1G7.  Sales,  sees.  823,  837.     It  is  wholly  incon^iiteut 

That  bills  of  lading  are  negotiable,  see  sees,  with  the  principles  u[)o:i  which  tlie  right  is  based 

2127,  2128,  ante.  to  permit  its  exercise  in  a  case  of  fraud  or  mis* 

Civ.  Code— 34  529 


§§  3077,  307S 


OliLia  AXIOMS. 


[Drv.  Ill,  Paut  IV, 


representation  in  tlie  sale.      Tins  wouM  be  a     the  vendor  to  his  lien:"  Note  to //awse  v.  J'jwZ- 
grouuJ  for  rescinding  the  sale,  not  for  restoring    son,  2'J  Am.  Dec.  3SG;  see  next  section. 

3077.    What  in  insolvency  of  consignee. 

Sr;c.  3077.  A  person  is  insolvent,  mtbin  toe  meaning  of  the  last  section, 
■when  lie  ceases  to  pay  Lis  debts  in  the  manner  usual  with  persons  of  liis  busi- 
ness, or  when  he  declares  his  inability  or  unwilling'ness  to  do  so. 

Proof  of  iusolveaoy. — It  ia  usually  evi-  370.  The  vendee's  own  admission  is  sufficient 
denccd  by  stopping  payment:  Chandler  v.  Fid-     untildisproved:  jS'econift  v.  Kutt,  \IB.  Mon. '261 ; 


ten,  10  Tex.  2;  O'llrirn  v.  A'orris,  16  Ud.  122; 
Jnslee  v.  Lane,  57  N.  II.  434;  see  Rojer.i  v. 
Thomas,  2D  Conn.  53;  and  Benedict  v.  SchaeU'f, 
12  Oliio  £fc.  515.  Certainly  a  technically  de- 
•.  clared  insolvency  is  not  necessary;  if  the  in- 
Bolvcncy  exists  in  fact,  it  is  sufKcient.  Proof 
of  failure  to  pay  one  just  and  admitted  debt 
would  probably  be  suiUcient:  Benjamin  on 
Sales,  sec.  837;  Smith's  Merc.  Law,  ed.  1S77, 
note  p.  5C0.  Any  circumstances  showing  a  gen- 
eral inability  to  settle  his  affairs  iu  the  usual 
course  of  business  is  sufficient:  //ays-  v.  Monille, 
U  Pa.  St.  4S;  Rqinolds  v.  Bo.iton  etc.  R.  /?., 
43  N.  II.  5S0.     Evidence  of   t!ic  confession  of 

i'  'udgmeuts  by  the  vendees,  and  the  immediate 
evj'  of  executions  thereon,  before  receipt  of 
'the  goods,  was  allowed    to   prove  insolvency: 
Loeb  V.  Petera,  G3  Ala.  243.    Any  well-founded 
■  jiiformation  of  an  embarrassment  or  failure  on 
tlic  vende<;'s  part  to  meet  the  demands  of  cred- 
■itors  was  lield  sufficient:  More  v.  Lott,  13  Nev. 


see  note  to  Ilauxe  v.  Judson,  2.)  Am.  Dee.  oS6. 
"Wlistlier  insolvency  must  arise  a:ter  tlie 
sal3. — Tlie  case  of  Rogcru  v.  Thonvis.  20  Conn. 
54,  stands  alone  in  holding  tliai  if  the  in- 
solvency exists  at  the  time  of  the  sale  the 
vendor,  though  ignorant  of  that  fact,  lias  no 
right  of  stoppage  in  transitu.  WiLli  tliis  ex- 
ception, the  American  cases  unite  in  dec'aring 
that  the  existence  of  the  insolvency  at  the 
time  of  the  sale  is  immaterial,  if  it  is  not  dis- 
covered by  the  vendor  until  afterwards:  Loeb 
v.  Peters,  03  Ala.  243;  Reyiwih  v.  Boston  etc. 
R.  R.,  43  N.  II.  5S0;  Benedict  v.  SchaeUle,  12 
Ohio  St.  515;  Buckley  v.  Furni<.9,  15  Wend. 
137;  Kai/lor  v.  Dennie,  8  Pick.  203;  White  v. 
MHchell,  33  Mich.  390;  Blum  v.  Mark-^,  21  La. 
Ann.  2GS;  O'Brien  v.  A'or?-«V,  10  IMd.  122; 
1,'ucLer  v.  Donovan,  13  Kan.  231.  If  the  right 
be  exercised  before  the  insolvency  occurs,  it  is  at 
the  vendor's  peril:  The  C'onstantia,  G  Pob.  Adnu 
321. 


'3D73.    Transit,  ichen  ended., 

Sec  3078.  The  transit  of  property  is  at  an  end  when  it  comes  into  the  pos- 
session of  the  consignee,  or  into  that  of  his  agent,  unless  such  agent  is 
ern])Ioyed  merely  to  forward  the  property  to  the  consignee. 

receive  possession  for  the  purchaser:  Benjamin 


Delivery    on    board    vossol    or    otlisr 

velil^lD  of  vend33.— As  to  the  ciTect  of  a  de- 
livery of  the  goodi  on  board  the  vendee's  ves- 
■■  scl  upon  the  right  of  stoppage  in  transitu,  a 
grave  conflict  exists. 

1.  The  English  rule,  adopted  in  some  Amcr- 
,  ican  decisions,  is,  in  general,  that  a  delivery  on 

board  a  .ship  or  otlier  vehicle  of  tho  vendee,  t'le 
vendor  being  aware  of  tlie  vendee';!  ownership, 
is  a  delivery  to  the  vendee,  to  whatever  port 
the  goods  are  cousigned,  and  tliere  is  no 
'  transitut^:  Benjamin  on  Sales,  sees.  841,  812; 
Huteli.  on  Ca:Tiers,  sec.  410;  Bolin  v.  Jlnjf- 
vanlc,  1  Rawle,  9  (leading  American  case); 
and  dictU7nin  Sturtevant  v.  (Jr^er,  21  N.  Y.  333. 

2.  Several  Am^iricau  cases  adopt  the  rule 
that  where  the  goods  are  delivered  on  board 
the  venilee's  vessel,  to  be  transported  to  him, 
they  are  in  transitu,  until  they  reach  him; 
wdiereas  if  they  are  to  be  carried  to  a  third 
person  there  is  no  transitas,  the  master  of  the 
vessel  being  considered  as  the  vendee's  a'^ent 
to  receive  delivery:  Stnbbs  v.  Land,  7  Mass. 
433;  S.  C,  5  Am.  Dec.  03;  /Uey  v.  Stubbu  0 
Id.  29;  Parker  v.  Mrlver,  i  Iil.  030;  Ro>ole>i  v. 
Blg^low,  12  Pick.  307;  S.  C,  23  Am.  Dec.  007; 
NcwhalL  v.  Vargas,  13  Me.  93;  S.  C,  S.")  Am. 
Dec.  4S0;  and  see  Cro^s  v.  O'Donnell,  44  N.  Y. 
COG,  citing  the  above  Massacliusetts  and  Maine 
eases  with  apparent  approval. 

If  under  the  first  rule  the  vendor  desires  to 
restrain  tlie  effect  of  a  delivery  of  the  goods  on 


on  Sales,  sec.  812. 

The  same  rule  (1)  applies  in  case  of  a  char- 
terer, if  the  charterer  is  owner  for  the  voyage, 
but  not  if  ho  has,  iu  effect,  merely  contracted 
fir  tho  carriage  of  the  goods:  Benjamin  on 
Sales,  sec.  843;  nor  where  the  carrier  has  been 
merely  nominated  or  hired  by  the  vendee:  Id.; 
Aguirrr  v.  Parmelc",  22  Conn.  473. 

Forwarders. — Goods  in  the  hands  of  a 
wharlinger,  warehouseman,  or  forwarder,  al- 
t'.iough  an  agent  of  the  vendee,  at  an  inter- 
mediate station,  such  possession  being  merely 
for  the  porpo>e  or  expediting  the  carriage,  are 
subject  to  the  right  of  stoppage  in  transitu: 
Markival  v.  Creditors,  7  Cal.  213;  Blackmanv. 
Pirrcp,  23  Id.  50S;  Bucklpy  v.  Firnisf,  15 
Wend.  137;  S.  C,  17  Id.  591;  Coirll  v.  Hitch- 
cock, 23  Id.  Oil;  Moltr  v.  Boxlon  etc.  R.  Co., 
103  Mass.  07. 

But  tlie  vendee  may  intercept  the  goods, 
take  possession  of  thein,  and  thus  defeat  the 
vendnr's  right:  Story  on  Sales,  see.  342  a; 
Augell  on  Carriers,  sees.  343-347;  or  by  di- 
recting their  delivery  to  another  party  at  such 
intermediate  point  and  they  are  so  ticlivercd: 
Sievens  v.  Wheekn;  27  Barb.  038;  or  by  giving 
them  a  new  destination  at  such  intermediate 
point,  either  personally:  Wood  v.  Yeatman,  15 
B.  Mon.  270;  or  by  agent:  Cabeenv.  Campbell, 
30  Pa.  St.  234. 

"Wliere  tlie  goods  have  arrived  at  tlieir 


board  the  vendee's  own  vessel,  he  may  do  so  destination  they  are  still  deemed  to  bo  in  tran- 
by  taking  bills  of  lading  so  expressed  as  to  in-  sit  so  long  as  the  carrier  retains  possession  iu 
dieate  that  the  delivery  is  to  the  master  of  the  the  capacity  of  carrier,  that  is,  until  the  car- 
vessel  as  an  agent  for  carriage,  not  an  agent  to  rier  has  delivered  them  or  consented  to  hold 

530 


Title  XIV,  Chap.  VII.] 


STOPPAGE  IN  TRANSIT. 


§3079 


them  in  custody  as  tlie  pnrcb.-iser's  agent,  or 
the  purcJUocr  has  perfoniied  some  ;ict  ot  owuer- 
Bhip  rcsp'jcliiig  ihcui:  Naijlor  v.  Dfiinle,  19 
A;-.!.  Dtc.  .ilO;  Seymour  v.  Newton,  105  Mass. 
272;  Iiii^'en  v.  Lm/r,  [u  N.  II.  434;  liLnjaiuia 
on  .Sales,  sec.  S4!;  IV/iUf  v.  Mltchdl,  m  Mich. 
300;  (  Inpp  v.  Peek,  oo  Iowa,  '270;  see  note 
to  J/oit-i'  V.  Jii'.-<o)i,  '-d  Am.  Deo.  '^'.)l. 

V/here  tlie  vendee  refuse^  to  receive  the 
goods,  ior  any  reason,  the  vendor's  right  con- 
tinues: Groat  V.  //ill,  4  Gray,  li'ol;  Morris 
V.  SUrifock,  r.O  Mi.ss.  o'JO,  TjU:);'  More  v.  Lut, 
13  Nev.  37G;  Slurtevant  v.  0/-.>er,  24  N.  Y. 
533. 

Delivery  to  t3nn"n:»t3  traiisitiis. — The 
consignee  nius:;  have  taken  actual  or  construct- 
ive 1  OiSussion  of  the  goods  as  owner;  that  is, 
he  niu^st  exercise  some  act  of  ownership  over 
the  j.oods. 

Acts  of  onmership. — Taking  samples  and 
paying  warehouse  rent,  or  engaging  for  its  pay- 
ment: W'rhjld  V.  Leivi'x,  4  Esp.  82;  Foster  v. 
Trampton,  G  Darn.  &  Cress.  107;  hut  taking 
samples  in  au  equivocal  act:  Jones  v.  Jones,  8 
Mce.  &  \V.  431,  ])€r  I'arke,  D. ;  marking  and 
measuring  goods:  Cooper  v.  Bill,  3  H.  &  C.  722; 
where  tlie  purchaser,  iiaving  received  the  ship- 
ping papers  of  goods  which  are  at  sea,  ware- 
houses them  in  his  owu  name:  Parker  v.  Uijrnes, 
1  L.iw.  539.  A  resale  by  the  vendee  wich  the 
vendor's  consent,  and  a  consignment  by  the 
latter  to  tlie  sccoii-.l  purchaser:  Eaton  v.  Cook, 
32  Vt.  58;  see  Treadwetl  v.  Ai/dlelt,  0  Ileisk.  3o8; 
causing  tlie  goods  t^)  be  repacked  and  sending 
part  (if  tliem  away  while  in  the  packer's  handi: 
Leeds  V.  Wrhjid,  3  Bos.  &  Pul.  323.  Sending 
the  goods  back  to  the  vendor  to  be  repacked: 
Vcdpy  v.  Gibson,  4  C.  B.  837;  by  intercepting 
llie  goods:  See  sujira.  liut  while  the  goods  re- 
main in  the  liantls  (if  the  carrier,  such  acts  as 
taking  samples,  marking,  etc.,  will  not  operate 
to  cliangc  the  jjossession  vviciiout  the  assent  of 
the  earner:  l\  hi.'e/'ead  w  Anderson,  9  Mee.  & 
W.  518.  In  any  case,  if  the  c.irrier  refuses  to 
deliver  the  goods  or  postpones  the  delivery, 
tile  transit  continues:  Allen  v.  Mercier,  I  Ash. 
103;  Iteynolds  v.  Boston  etc.  II.  I!.,  43  N.  H. 
580;  so  where,  having  begun  to  unloail  the 
goods,  he  reloads  them  upon  hearing  of  the  ven- 
dee's insolvency,  and  letLtrns  them  to  his  owu 
premises:  Crawshay  v.  Eades,  1  Ba:n.  &  Cress. 


181;  so  also  in  case  of  delay  because  of  quaran- 
tine: Hoist  v.  Ponvial,  1  Esp.  240. 

/;*  the  ca.se  o/wjenry,  the  (jucstiou  is  wliether 
the  vendee's  agent  is  merely  a  forwarder  or 
duly  authorized  to  receive  an  actual  and  cO'ect- 
ive  delivery:  Angell  on  Carriers,  sec.  340. 
Whenever  the  goods  reach  the  bauds  of  agents 
of  the  ven<lee  authorized  to  receive  them  ami 
to  give  them  a  new  destination,  or  awaiting  his 
orders  as  to  tlieir  future  destination,  they  are 
deemed  delivered,  and  t!ic  trr.u"  it  is  ended: 
Pattinijer  v.  //erkJier,  2  Giant,  3^0;  Cnhee.i  v. 
Campbell,  30  i'a.  St.  254;  Bi'j'js  v.  Barry,  1 
Curt.  C.  C.  259;  Hoover  v.  TdJtits,  13  Vvi.s. 
89;  Cored  v.  IPdrhrock,  23  Wend.  Gil;  Becker 
V.  //cd'f/ai-.'en,  83  N.  Y.  173;  Barrett  v.  (.'od- 
(lard,  3  Mason,  107;  O'Neill  v.  Garrett,  G  Iowa, 
480;  and  s-ee  eases  cited  i^vpra,  und  r  "  For- 
warders," "Goods  at  Destination."  But  if  tho 
agents  holds  tlie  goods,  not  to  change  the  desti- 
nation, but  merely  to  receive  orders  as  to  tho 
nxxle  of  shipment  to  the  original  dest!nati(ni, 
the  transltus  continues:  Harris  v.  Pratt,  17 
N.  Y.  249. 

Entry  of  ijoods  at  the  custovi-house  without 
paying  the  duties  does  not  terminate  the  tran- 
sit; but  it  is  otherwise  where  they  are  jilaecd 
in  a  public  store  or  bonded  v.'arehouse:  Moll- 
ravi  V.  j.eyer,  5  Denio,  G29;  Wi'ey  v.  Sinit/i,  1 
Out.  App.  But  goods  stored  in  the  custom- 
house because  of  the  loss  of  the  invoice  are  in 
transitu,  though  the  freight  is  paid,  because  by 
reason  of  the  loss  of  the  invoice  they  could  not 
be  entered  at  the  custom-house,  and  the  pur- 
chaser cou'd  not,  therefore,  oljtain  actual  pos- 
session: Donatk  V.  Broom/iead,  7  Pa.  St.  301. 

Pai't  delivery. — A  delivery  of  part  of  tha 
goods  to  the  consignee  does  not  aCTcct  the 
vendor's  riglit,  unless  such  partial  delivery  wa.s 
intended  to  operate  as  a  delivery  of  the  whole: 
Bei)j;im:n  on  Sales,  857;  Back'ey  v.  Fnrni.-<s,  17 
Wend.  504;  S'-comb  v.  Ntclt,  li  B.  Mon.  2G1; 
and  the  onus  pfobnndi  is  on  the  party  desirin;^ 
to  establish  a  constructive  dciiv(^ry  of  the 
whole.  Part  delivery,  intended  as  a  delivery 
of  the  whole,  wiil  have  the  elTect  intended:  Sic 
vens  V.  Wheeler,  27  Barb.  G58. 

See,  i/enerall'f,  Angell  on  Carriers,  sees.  339- 
318;  note  to  /lanse  v.  Judson,  29  Am.  Dec. 
337-332;  Corbin's  Benjamin  on  Sales,  ed.  1SS3, 
pp.  1070-1092,  notes  12-20. 


3079.   Stoppag",  how  effccied. 

Sec.  3079.     Stoppage  in  transit  can  be  effected  only  by  notice  to  the  carrier 
or  depositary'  of  the  property,  or  by  taking  actual  possession  thereof. 


page  by  refusing  to  receive  the  gooils  does  not 
prevent  such  stoppige."  In  Naylor  v.  JJennie, 
19  Am.  Dec.  319.  Parker,  C.  J.,  says:  "  But  we 
umlerstand  this  doctrine  to  mean  no  more  than 
that  the  riglit  of  stopping  in  transitu  cannot; 
be  exercise  I  under  a  title  derived  from  the 
consignee;  not  Lliat  it  shall  be  exercised  iu 
hostility  to  him." 

Taliias   actual  possession  is,   of  course, 
Buiheient:  Stnnloi  v.  Ea<i-r,  lb  Pick.  407. 

NotioGto  h:ilder  of  tlie  goods.— A  demand 
is  not  necessary,  ijut  notice  not  to  d'diver  will 
"But  this  probably  means,"  says  the  editor  of  sulhee:  Neivhall  v.  \'ari/'is,  29  Am.  Dec.  489; 
the  American  decisions  iu  I/nii^e  v.  Jnd.xon,  29  Bei/no'ds  v.  Boston  etc.  I',  li.,  43  N.  11.  580. 
Am.  Dec.  .386,  note  p.  394,  "  no  more  than  that  The  demand  or  notice  must  he  made  upon  or 
there  shall  be  a  positive  atiirin  itive  exercise  of  given  to  the  niiildieman  or  carrier,  or  to  hid 
the  vendor's  right,  for,  as  we  have  already  seen,  agent  who  has  the  immediate  possession,  ami 
the  fact  that  the  cousiguee  couaeuts  to  the  stop-     notice  to  the  consignee  is  not  suliicieut:  MolU^ 

531 


Stoppage  in  transitu,  how  to  be  ex- 
ercised.— If  the  Vfudor  chooses  to  exercise 
the  right  of  stoppage  in  transitu,  he  must  act 
upon  that  theory,  and  not  base  his  claim  upon 
a  subsetpient  agreement  lietween  himself  and 
the  insolvent  vendee;  for  in  the  latter  case  he 
may  stand  only  on  a  level  with  other  creditors. 
At  least,  the  doctrine  of  stopi)age  in  transitu, 
as  such,  will  have  no  application:  Lane  v.  Jnek- 
«o«,  5Mass.  1G2;  Ashv.  Putnam,  I  Hill  (N.  Y.), 
302;  Sturtevant  v.  Orx^r,  24  N.  Y.  538;  Grant  v. 
mil,  4  Gray,  331;  Slfken  v.  Wray,  G  East,  371 


§§  3080-3087 


OBLIGATIONS. 


[Div.  Ill,  Part  IT, 


ram  v.  Ihyer,  5  Denio,  G29;  liueler  v.  Dono- 
van, 13  Kan.  251.  "Notice  to  tlie  assignees 
of  the  consignee  was,  however,  erroneously, 
as  we  think,  licld  suflicicnt  in  Bell  v.  J\Ioss,  5 
Whart.  189:  "  Per  ed.  Am.  Doc.  in  JIaase  v. 
JudsdU,  s/i/>rn.  If  the  carrier  is  clearly  in- 
fonned  that  it  is  the  desii-e  of  t!ie  vendor  to 
retake  the  goods,  the  nutice  is  sudjcitnt.  Thus 
a  letter  by  the  vendor,  delivered  to  the  ageiit 
of  the  carrier  in  possession  of  the  goods,  giv- 
ing a  bill  of  particulars,  and  directing  him  to 
deliver  the  goods  to  no  one  but  his  agent,  is  a 
snlBcieut  demand  for  tlie  return  of  the  goods: 
Jones  V.  Earle,  37  Cal.  COO,  and  see  cases  cited 
svjrra.  In  Clement-son  V.  Grand  Trunk  Ify  Co., 
42  U.  C.  Q.  B.  203,  a  notice  to  the  carrier  was 

3030.   Efect  of  stoppage. 

Sec.  3080.     Stoppage  in  transit  does  not^  of  itself,  rescind  a  sale,  bat  is  a 
means  of  enforcing  the  lien  of  the  seller. 

See  sec  3076,  ante,  note  "Nature  of  the  llight." 


held  insnfificient  because  it  did  not  clearly  iden- 
tify the  goods. 

belivery  after  notice. — When  a  factor  de- 
livers goods  after  orders  from  his  jirincipal  to 
stop  them  in  tran^Uu,  he  is  liable  for  any  loss 
occasioned  thereby:  llowalt  v.  JJav^fi,  7  Am. 
Dec.  GSl.  If  the  goods  are  delivered  to  the 
vendee  or  his  assignees  by  mistake,  after  notice 
to  stop,  he  or  they,  as  the  case  m::y  be,  are 
liable  in  trover  for  their  value:  Litt  v.  Coio'ey, 
7  Taunt.  109.  After  notice,  the  carrier  becomes 
liable  for  ciuiversion  if  he  declines  to  deliver 
the  goods  to  the  vendor,  or  delivers  them  to 
the  vendee:  Jones  v.  Earle,  37  Cal.  030,  032, 
and  cases  cited. 


TITLE  XY. 
NEGOTIABLE  INSTRUMENTS. 

CnAPTEE   I.     Negotiable  Insti{Dments  in  General  3086 

II.     Bills  of  Exchange 3171 

III.  Peojiissouy  Notes 3244 

IV.  Checks 3254 

'V.    Bank  Notes  and  Certificates  of  Deposit  .... 32G1 


CHAPTER  I. 
NEGOTIABLE  INSTKUJ^IENTS  IN  GENERAL. 

Akticle  L    General  Definitions 3086 

II.     Inteupketation 3099 

IIL     Indorsement 3103 

IV.    Presext::ent  for  Payment 3130 

V.     Dishonor  3141 

VI.     Excr.sE  OF  Presentment  and  Notice 3155 

VII.    Extinction ^ 3104 


ARTICLE  I. 

general  definitions. 
S086.    To  what  infitrumenfff  this  title,  is  oppllcaljli'.. 

Bec.  308G.  Tlie  provisions  of  this  title  apply  only  to  negotiable  instruments, 
as  defiued  in  tbis  article. 

3387.    Ni'fjofialjle  instrumevt,  what. 

Sec.  3087.  A  nejjotiable  instrument  is  a  written  promise  or  request  for  the 
pa3'meiit  of  a  certai"^  sum  of  money  to  order  or  bearer,  in  conformity  to  the 
provisions  of  tbis  article. 


"The  term  'necotiable,'  in  its  enlarged 
eignihcation,  is  used  to  describe  any  written 
secuiity  wiiicli  may  be  tnuisforred  liy  indorse- 
ment and  deliver}',  or  l)y  delivery  mereiy,  so 
as  to  vest  in  the  indorsee  the  legal  title,  and 
thus  to  enable  him  to  bring  suit  tliei'eon  in  liis 
own  name.    But  in  a  strictly  commercial  classi- 


fication, and  as  the  term  is  techiiically  nsed, 
it  applies  only  to  those  instruments  which, 
like  bills  of  exciiange.  not  only  carry  the  le^^al 
title  with  them  by  indorsement  or  delivery, 
but  carry  as  well,  wlien  transferred  l)efora 
maturity,  t!ie  right  of  the  transferee  to  demand 
the  lull  amounts  which  their   faces  call  for. 


532 


Ttile  XV,  Chap.  I.]    XEGOTLVELE  INSTE,U:JENTS  IN  GENERAL 


30S8 


'Assignable '  is  the  more  appropi'iatc  term  to 
desciiuu  Ijouds  and  ordinary  notes,  or  notes  of 
liand,  aa  tiiey  are  most  ccjmmonly  called;  as 
'negotiable  '  is  the  nioi-e  litting  term  to  describe 
the  pecu.iar  instruments  of  coumierce:"  Daniel 
ou  Neg.  Inst.,  sec.  1  a. 

Tlie  negotiability  of  an  instrument  cannot 
be  f.)undeil  ii[)on  the  mere  agreement  of  the 
parties.  It  can  only  result  as  an  implication 
of  law  from  the  form  and  effect  of  the  security 
itself.  Thus  a  bank  and  its  depositors  cannot 
by  mutual  agreement  render  a  bank-hook  ne- 
gotiable: Wide  V.  Viiiceiiot,  43  Cal.  325.  Wlien 
the  instrument  is  not  negotiable,  the  assignees 
are  snljject  to  the  equities  existing  between  the 
original  parties;  thus,  wJiere  one  obtained  a 
iion-negoiial>le  note  upon  the  faith  of  his  own- 
ership m  a  judgment,  M'hich  in  fact  he  had  as- 
signed, ancl  transferred  the  note  to  innocent 
asc;i;,'uees  before  its  maturity,  nevertheless  the 
makers,  alter  discovering  tiie  fraud,  properly 
refused  to  pay  the  amount  of  their  note: 
M'dchdl  V.  liachett,  U  Id.  GUI;  see  Wrhjht  v. 
Levy,  12  1.1.  '257. 

Writing. — The  necessity  that  the  instru- 
ment should  be  written  or  printed  in  order  to 
render  it  negotiable  is  obvious.  It  may  be 
printed.  Thus,  many  promissory  notes  have 
been  issued  which  cLisely  resembled,  ia  form, 
color,  and  size,  an  ordinary  bank  note.  Tiiey 
are  valid  oljligations  when  not  prohibited  by 
statute,  and  are  enforced  in  the  same  manner 
as- ordinary  promissory  notes:  James  v.  Rojers, 
23  Ind.  4J3. 

Tiio  note  may  be  written  in  pencil:  Brown  v. 
Butchers'  d:  Drovers  Bank,  41  Am.  Dec.  755, 
and  note;  Partridije  v.  Davis,  20  V't.  499;  Story 
on  Prom.  Notes,  sec.  11. 

Signature. — The  maker's  or  drawer's  name 
need  not  lie  subscribed;  it  is  saincient  if  his 
name  is  atiixed  to  any  portion  of  the  instru- 
ment in  the  cajiacity  of  maker  or  drawer: 
JIuiit  V.  Adams,  5  Mass.  359;  Clason  v.  Bailey, 
14  Johns.  484;  Schmidt  v.  SchmaeJCer,  45  IJo. 
502;  TanibuU  v.  Thomas,  1  Hughes,  172. 
Thus,  "  I,  A.  \>.,  promise  [or  request  you]  to 
pay  "  is  a  good  note  or  l)ill,  thougli  not  other- 
wise signed:  Taylor  v.  Dobbins,  1  Stra.  399; 
Satiudersoii  v.  Jackson,  2  Bos.  &  Pul.  238. 

May  1)0  in  pencil:  Drown  v.  Butchers^  etc. 
Bank,  41  Am.  Dec.  755,  and  note.  Where  a 
party  indorsed  bysigning  tiie  figures  "  1,  2,  8," 
iutentling  thereby  to  bind  himself,  held  suffi- 
cient: ferris  V.  KHmer,  48  N.  Y.  303;  David 
V.  WUliuiiishurQh.  etc.  Ins  Co.,  83  N.  Y.  209; 
Zann  v.  llailer,  71  Ind.  139;  Ret-d  v.  Roark,  14 
Tex.  323;  Daniel  on  Neg.  Inst.,  sec.  74. 

Tlie  execution  of  a  promissory  note  signed 
with  an  X,  or  mark,  may  be  proved  by  evi- 


dence of  admissions  of  the  alleged  signer,  in  the 
absence  of  any  attesting  witness:  ll'dhorn  v. 
Alford,  22  Cal.  482;  Daniel  on  Neg.  Inst.,  sec. 
74;  Willoiujhhy  v.  Moidton,  47  N.  II.  205;  Shank 
V.  But.rh,  28  Ind.  19;  Flowers  v.  Bitt'mrj,  45 
Ala.  448.  Initials  are  suCicient:  MercJiants' 
Bank  V.  Spker,  G  Wend.  443;  Palmer  v.  Ste- 
phens,  1  Denio,  471.  Jlay  be  printed:  Penning- 
ton V.  Bach),  48  Cal  505;  Story  on  Prom.  Notes, 
St!i  ed.,  20,  note  1. 

See  note  to  sec.  3109,  post. 

Request. — The  insertion  of  the  word 
"please"  does  not  alter  the  character  of  the 
instrument:  Wheatley  v.  Strobe,  12  Cal.  92. 

Promiss — The  word  "promise"  need  not 
be  used,  thougli  the  better  opinion  M-ouhl  seem 
to  be  that  the  intention  to  promise  should  be 
apparent  from  the  language  used,  not  merely 
an  im;ilicatioii  of  law.  Thus  a  naked  due-bill 
should  hardly  be  construed  as  a  promissory 
note,  though  some  courts  have  so  held:  Daniel 
ou  Neg.  lust.,  sees.  30-38. 

C2rta;u  sum. — But  id  certnm  quod  certum 
reddi  potest,  and  if  the  amount  can  be  a.scer- 
tained  from  the  face  of  the  jjaper,  the  form  of 
expression  is  immaterial:  Parsons  v.  Jackson, 
99  U.  S.  440.  Therefore  a  promise  to  pay 
bearer  a  certain  sum  per  acre  for  so  many  acres 
as  a  certain  tract  contained  was  held  to  l)e  a 
note  as  soon  as  tlie  number  of  acres  was  in- 
dorsed upon  it;  Smith  v.  Clopion,  4  Tex.  109; 
sec  note  to  W'oolley  v.  Senjeant,  14  Am.  Dec 
423;  Gctrwood  V.  Simpson,'s  Cal.   101. 

Money:  See  next  section. 

To  order  or  bearer.— Without  these  words, 
or  their  equivalents,  the  instrument  is  not  ne- 
gotiable: Richards  v.  Warrintj,  33  Barb.  42; 
Reed  V.  Murphy,  1  Ga.  23G;  Fenionv.  Farmer, 
1  Ilarr.  (Del.)  32;  llacknej  v.  Jones,  3  Humph. 
G12;  Byles  on  Bills,  85.  Any  other  equivalent 
ex]>ressions  demonstrating  the  intention  to 
mr.ke  it  negotiable  are  sufficient:  Count//  of 
Wilson  v.  A'.  B.,  103  U.  S.  770;  as,  e.  <].,  ""as- 
signs:" Porter  v.  City  of  Janesvdle,  3  Fed.  Rep. 
G19;  or  to  a  certain  corporation  or  "  the  holder, 
if  transferred  by  the  signature  of  its  president;" 
County  of  Wilson  v.  A^  B.,  supra.  But  a  noto 
payable  "to  the  bearer  A."  is  not  a  note  pay- 
able to  bearer,  and  is  not  negotiable:  Warren  v. 
Scott,  32  Iowa,  22;  see  Daniel  ou  Neg.  lust., 
sees.  99,  104,  105. 

Fictitious  payee:  See  sees.  3102,3103. 

Fraud. — A  negotiable  instrument  in  the 
handj  of  an  innocent  purchaser  cannot  bo  im- 
peached on  the  ground  of  fraud  by  a  party  en- 
g:iged  in  the  perpetration  of  the  fraud,  or  by 
those  claiming  under  him:  Wrl(jht  v.  Levy,  12 
Cal.  257;  Davis  v.  Mitchell,  34  Id.  82. 


8088.    Mud  he  for  unconditional  payment  of  tnonnj. 

Sec.  3088.     A  negotiable  instrument  must  be  made  payable  in  money  only, 
and  without  any  condition  not  certain  of  fulfillment. 


Must  be  payable  in  money. — And  if  it  be 

payable  "in  cash  or  specilie  articles"  in  tlie 
alternative:  Matthews  v.  /fow/hton,  1 1  Me. 
377;  or  in  merchandise:  Rhodes  v.  Lindley, 
Ohio  Cond.  405;  Lawrence  v.  Dowjherly.  5 
Yerg.  435;  or  in  work:  ■'^mith  v.  Boehni,  Chit. 
Jan.  234;  or  in  any  other  article  than  money: 
Awrbach  v.  Pritchitf,  58  Ala.  451 — it  becomes 
a  special  contract,  and  loses  its  negotialjility. 
Lajal  tender. — Where  the  medium  of  pay- 


ment is  exjiressed  as  "good,  cun'ent  money," 
or  "current  money,"  it  is  not  objectionable,  as 
legal-tender  money  is  intended:  Wharton  v. 
Morris,  1  Dal.  124.  But  upon  this  point,  and 
payment  in  "current  funds,"  "currency," 
"state  currency,"  and  tlic  like,  as  affecting  the 
negotiability,  ih«-re  is  great  conflict  in  the  de- 
cisions: See  notes  to  Daniel  on  Neg.  Inst.,  sec. 
53,  notes. 

We  have  these  decisions:   that  the  kind  of 


8  30S9 


OBLIGATIONS. 


[Div.  Ill,  Part  IV, 


money  to  ]>e  paiil  is  to  he  determined  by  an  in- 
spaclion  and  construction  of  llio  iastrument: 
liuriK'U  V.  SleaniK,  ;)3  Cal.  4GS;  and  tliat  when 
a  draft  does  not  specify  I  lie  liind  of  money 
in  which  it  i^  payable,  it  may  be  paid  in  legal- 
tender  notes:  Langanbei'ijer  v.  Kroeqer,  43  Cal. 
147. 

The  money  may  be  that  of  a  foreign 
country:  Ch.  Bills,  1.03;  Story  on  Bills,  sec. 
4."!;  B'ack  v.  ]Vord,  '11  Mieh.  10;J;  Thompson  v. 
iSloaii,  23  Wend.  71;  in  tlie  latter  case  it  was 
held  that  the  denomination  of  the  foreign  coin 
inten'led  should  Ije  set  out  in  the  instrument; 
but  this  was  denied  in  the  foiniLr  case. 

Condition. — A  written  instrument,  contain- 
in;^  a  promise  to  pay  a  sum  of  money  upon  a 
contingency,  and  not  absolutely,  is  not  a  prom- 
issory note:  Gabb  v.  Kiurj,  33  Cal.  143;  and 
upon  tlie  failure  of  the  condition  cannot  be  en- 
forced: Frishlc  V.  Moore,  51  Id.  51G;  and  where 
the  words  import  an  unconditional  promise,  the 
raaker  is  not  allowed  to  set  ui>  a  condition  by 
testimony  aliunde:  Aud  v.  Maqruder,  10  Id. 
£32. 

Other  contract  In  instrument:  See  infra, 
sec.  3093. 

Time  of  payment— Chief  Justice  Campbell, 
ill  Broohs  v.  Ilargrcavps,  21  iMiuh.2Cio,  speaking 
of  the  necessity  of  having  a  fixed,  certain  time 
wlien  a  note  shall  be  payable,  says  that  "it 
must  be  ])ayabie  at  a  time  which  must  cer- 
tainly arrive  in  the  future,  upon  the  happening 
of  some  event,  or  the  completion  of  some  period 
not  depending  on  the  future  volition  of  any 
one."  The  editor  of  the  American  Decisions, 
in  Woollc'i  V.  Sergednt,  14  Am.  Dec.  421,  says  of 
this  language,  tliat  it  expresses  tlie  0[iinion  en- 
tertained Ijy  many  of  the  courts  of  this  country, 
that  if  the  time  must  certainly  con^e,  although 


Payee. 


the  particular  day  is  not  mentioned  in  the  note, 
the  instrument  is  negotiable,  as  t'.ie  fact  of 
payment  is  then  certain.  Illustrative  of  this 
proposition  arc:  Capron  v.  Capron,  44  Vt.  412; 
Ubudi'll  V.  Cunning  limn,  22  i\Io.  124;  Jordan  v. 
Tat.',  19  Ohio  St.  580;  Works  v.  Ihrshey,  35 
Iowa,  340;  Ern4  v.  Steckman,  74  Pa.  St.  13; 
]Vall:er  v.  Woolen,  54  Ind.  104;  Gardner  v. 
Burner,  4  Ilci^.k.  CG9;  Palmer  v.  Hammer,  10 
Kan.  404;  Crooker  v.  llolme'<,  05  Me.  193. 

Although  it  is  well  to  have  a  rule  of  some 
sort,  nevertheless  it  is  easily  perceived  that 
this  is  so  general  in  its  nature  as  to  open  the 
way  for  a  great  variety  of  decisions  depending 
upon  the  peculiar  facts  of  each  case:  See  largo 
number  of  cases  collected  in  Daniel  on  Neg. 
Inst.,  sees.  41-52;  also  Byles  on  Bills,  7th  ed., 
sees.  95-100,  and  notes. 

"  O//  or  before.'" — A  promise  to  pay  "on  or 
before"  a  day  mentioned  states  time  of  pay- 
ment with  sntHcient  certainty:  Mattisou  v. 
Marks,  31  Mich.  421,  423,  per  Cooley,  J.; 
Jordan  v.  Tate,  19  Ohio  St.  580. 

Partioular  fund. — Making  an  instrument 
payable  out  of  a  particular  fund  attaches  a 
condition  which  destroys  its  negotiability,  for 
its  payment  becomes  tlependent  upon  the  suffi- 
ciency of  the  fund:  Wadlinijton  v.  Covert,  51 
Miss.  031;  Averett  v.  Booker,  15  Gratt.  105; 
Bichnrdson  v.  Carpenter,  40  N.  Y.  001 ;  iVarden 
V.  Dodge,  4  Denio,  159;  Corbctt  v.  State,  24  Ga. 
287;  'Harriman  v.  Sanborn,  43  N.  H.  123; 
Munger  v.  .shaimon,  01  N.  Y.  258;  Daniel  oa 
Neg.  Inst.,  sec.  53;  but  see  Nagle  v.  Homer, 
8  Cal.  353. 

But  a  bill  payable  out  of  a  certain  fund,  if 
suflicient,  lait  if  not  then  payable  absolutely, 
is  not  the  less  negotiable:  Bull  v.  Sims,  23  N. 
Y.  570. 


3083. 

Sec.  3089.     The  person  to  wiiose  order  a  negotiable  instrument  is  made  i)ay- 
ablo  must  be  ascertainable  at  the  time  the  instrument  is  made. 


Order  of  payee.— The  payee  need  not  be 
named  in  person  if  some  one  be  indicated. 
Tlierefore,  when  the  instrument  is  made  pay- 
able "to  A.  or  bearer,"  or  "to  the  holder,"  or 
"to  order,"  it  is  intended  to  mean  whoever 
comes  into  lawful  possession,  and  the  holder 
may  sue  upon  it.  "By  naming  persons  to 
whoso  order  the  instrument  is  payable,  the 
maker  manifests  his  intention  to  limit  its  nego- 
tiability by  imposing  the  condition  of  indorse- 
ment upon  its  iirst  transfer.  But  no  such  in- 
tention is  indicated  by  the  designation  of  a 
fictitious  or  impersonal  payee,  for  indorsement 
iiiuler  such  circumstances  is  manifestly  impos- 
sible." Therefore,  "pay  to  bills  payable  or 
order"  was  held  equivalent  to  a  bill  made  pay- 
able to  bearer:  Per  Scrugham,  J.,  in  Mechan- 
ics'' Bank  v.  StraJton,  3  Abb.  App.  Dec.  209, 
271;  Ponrmanv.  Mills,  .35  Cal.  i  IS;  Ilathwlck 
V.  Owen.  44  Miss.  803;  see  sees.  3102,  3103, 
pod;  Willet's  v.  Ph<£uix  Bank,  2  Duer,  121. 
But  where  the  bill  or  note  is  made  payable  to  a 
non-tictitious  payee,  it  must  furnisli  sufficient 
description  l)y  which  he  may  be  aseeruained. 
The  following  have  been  held  sufficient  de- 
scriptions: "Administi-ators  of  t!ie  estate  of 
A.:"  Corroran  v.  Poll,  32  Cal.  82;  Adams  v. 
King,  10  111.  109;  3Iood>/  v.  ThrelkclA,  13  Ga. 
f)5;  "trustees  acting  under  the  will  of  A.:" 
Megginsoa   v.   Harper,    2  Cromn.   &  M.   322; 


"heirs  of  A.,"  though  A.  were  then  alivet 
Bacon  v.  Pitch,  1  Root,  181;  "A.  or  his  heirs:" 
Knijht  V.  Jones,  21  Mich.  101;  or  to  the  order 
of  the  person  who  should  thereafter  indorse  it: 
United  States  v.  White,  2  Hill  (N.  Y.),  59,  the 
maxim,  Id  certum  est  quod  certum  reddi  potest, 
here  applying.  But  a  note  payable  to  "  the  sec- 
retary for  the  time  being  of  a  cei'tain  society  " 
would  not  be  sufficiently  certain,  for  tlie  pay- 
ment would  be  to  a  person  who  should  happen  to 
be  secretary  at  its  maturity:  Storm  v.  Sterling,  3 
El.  &  Bl.  382;  but  if  payable  "to  the  now  sec- 
retary," it  would  be  sufficient,  the  pci-son  being 
definitely  ascertainable:  Id.;  and  Bohertson  v. 
Steward,  1  Man.  &  G.  511;  Davis  v.  Garr,  6 
N.  Y.  124;  Bex  v.  Box,  G  Taunt.  325. 

If  no  payee  be  named  at  all,  or  definitely  re- 
ferred to,  the  instrument  is  mere  waste  paper; 
as,  for  example,  "pay  on  the  within  sevm  hun- 
dred and  fifty doll.rs:"  Doughss  v.  Wilkeson,  6 
Wend.  037;  see  Brown  v.  Gilman,  13  Mass. 
1.58;  Ma' hews  V.  AV(Z*fi»e.  23  Miss.  233;  Mcin- 
tosh v.  Lyttle,  20  Minn.  330. 

Fictitious  payee:  See  sees.  3102,  3103. 

Payea  in  blanli. — A  bill  or  note  with  the 
payee  blank  is  to  almost  every  legal  intent  and 
purpose  payable  to  bearer.  It  passes  i)y  deliv- 
ery, and  any  bona  file  holder  for  value  may  fill 
it  up  witli  his  own  name  and  sue  upon  it.  And 
altliongh  tljus  brought  into  apparent   privity 


534 


Title  XV,  Cuap.  I.]    NEGOTIABLE  INSTRUMENTS  IN  GENERAL, 


^§  3090-30D4 


with  the  maker  or  drawer,  he  may,  by  provin;? 
tliat  he  was  not  the  party  to  whom  it  was  first 
deiivcred,  excUide  defenses  valid  as  a;^aiiisb 
such  lirst  party,  and  enjoy  all  the  rights  of  a 
honajide  holder:  Frank  v.  LlUnifdd,  o3  Gratt. 
378;  Kelson  v.  Cowin'j,  G  Hill,  3JG;  Pindar  v. 
Barlow,  31  Vt.  539;   lilch  v.  Starhuch,  51   Ind. 

87:    "to  W.  L.  P.  or ,"  held  negotiable: 

ElUoU  V.    Deason,  Ct  Ga.  G3.     lu   such   case, 


with  the  name  of  a  bank,  and  after  discounting 
it  to  pay  wich  the  proceeds  au  outsti'.ndinc; 
note,  but  the  agent,  disobcj'ing  orders,  liUs  iu 
the  name  of  the  party  holding  such  outstaudiug 
note,  and  dclivei's  him  the  same  iu  paj'nicnt  ol 
the  other  note,  the  note  is  M'ithout  considera- 
tion, and  is  void  iu  the  hands  of  the  payee: 
Brenuin  v.  Lovelt,  46  Cal.  3S7.  Such  third 
party  is  not  a  honajide  purchaser. 
Indorsement  iu  "blank:  See  see.  3125. 


where  an  agent  is.  directed  to  fill  up  the  blank 
3090.    Indniment  may  he  in  allernailve. 

Sec.  3090.  A  negotiable  instrument  may  give  to  the  payee  an  option  between 
tlie  payment  of  the  sum  specified  therein  and  the  performance  of  another  act; 
but  as  to  the  latter,  the  instrument  is  not  within  the  provisions  of  this  title. 

The  annotators  of    tlio  propossd   New    payable  in  money  or  goods  upon  demand,  the 


York  civil  code,  in  explanation  of  this  section, 
simply  cite  Hodges  v.  Shn'er,  22  N.  Y.  114,  and 
Jlo&iialte.r  v.  Wilson,  30  Barb.  307,  the  furraer 
of  which  (lecidca  that  a  promise  to  pay  S,  or 
order  onethousanddolIars,oru])0'.i  thesurreuder 
of  the  iusi-i'umeut  to  issue  stock  for  the  same,  is 
a  negotiable  promissory  note.  The  latter  case 
decides  to  the  same  eli'ect  where  tlie  note  was 


election  to  take  the  goods  or  not  resting  with 
the  payee.  These  cases  are  to  be  considered  as 
not  contradictory  to  the  principle  of  section 
30SS,  supra,  for  as  far  as  the  drawer  or  maker 
is  concerned,  the  instruments  in  question  are 
payable  in  money  only.  lie  has  no  option  in 
the  matter.  The  right  of  election  rests  wholly 
with  the  payee. 


80S1.    Date,  etc. 

Sec.  3091.     A  negotiable  instrument  may  be  Avith  or  without  date^  and  with 
or  without  designation  of  the  time  or  place  of  payment. 


Date  is  not  essential  to  the  validity  of  the 
instrument,  but  if  it  is  inserted,  it  is  of  no  con- 
sequence upon  what  portion  of  the  paper  ib  is 
wa'itten:  Sliepherd  v.  O'rares,  14  llow.  5G5. 
There  being  no  date,  it  will  be  considered  as 
dated  at  the  time  it  was  executed:  Seldenrkbje 
V.  (oniiable,  32  Ind.  375;  Cowu/gv.  Attman,  71 
N.  Y.  441;  and  parol  evidence  is  admissible  to 
show  from  what  time  au  undated  iustriimei'b 
was  intended  to  operate:  liichardn^n  v.  Ellet, 
10  Tex.    100;  Lean  v.  Lozurdi,  27  Mich.  424; 


Coiain;/  v.  Attman,  71  N.  Y.  4-41;  or  to  show  a 
mistake  in  the  date;  Drake  v.  Jiodijera,  32  Mo. 
524. 

Antedating:  See  sec.  3094, 

Time  of  payment. — When  no  time  is  speci- 
fied, the  note  is  jvayable  immediately  (sec.  3099) 
upon  demand:  Kryes  v.  Fen.-iternmah-r,  24  Cab 
329;  lIolme<i  v.  Wed,  17  Id.  G23;  see  sec.  3248, 
j^oul;  Daniel  on  Neg.  Inst.,  sec.    SS. 

Place  of  payment:  See  sees.  3100,  3130, 
3131,  subd.  4;  Daniel  ou  Neg.  Inst.,  sec  90. 


S0S2.    May  contain  a  pledge,  etc. 

Sec.  3092.     A  negotiable  instrument  may  contain  a  pledge  of  collateral  secu- 
rity, with  authority  to  dispose  thereof. 

3083.    What  it  must  not  contain. 

Sec.  3093.     A  negotiable  instrument  must  not  contain  any  other  contract 
than  such  as  is  specified  in  this  article. 

"What  it  must  contain.— "An  obligation  to 
pay  money,  and  to  do  anything  iu  addition,  is 
not  negotiable:  Austin  v.  Burn  a,  10  Darb.  G43; 
Ilarun  v.  (Jhauntrj/,  2  Stra.  1271;  but  see  sec. 
3090.  It  has  been  said  that  an  instrument  can- 
not be  made  negotiable  by  calling  ib  so  on  its 
face;  but  it  may  be  wortliy  of  consideration 
whether  parties  should  not  be  allowed,  by  ex- 
press words,  to  bring  any  contract  within  the 
rules  of  negotiable  paper: "  Observation  by 
commissioners. 

Stipulation  for  attorney's  fee:  See  an  ar- 
ticle in  2  West  C^oast  Hep.  7G7. 

Mere  recitals. — Such  statements  do  not  af- 
fect the  nt'gotial)ility  of  the  instrument,  even  if 
it  contain  a  puwer  of  sale,  for  it  renders  neither 
the  amount,  the  time  of  payment,  the  payee, 

3094    Date. 

Sec.  3094.     Any  date  may  be  inserted  by  the  maker  of  a  negotiable  instru-- 
meut,  whether  past,  present,  or  future,  and  the  instrument  is  not  invalidated 
by  his  death  or  incapacity  at  the  time  of  the  nominal  date. 

1335 


nor  the  engagement  to  pay,  uncertain:  Toicne 
v.  Biee,  122  Jdass.  G7;  Arnold  v.  lioc/c  River  etc. 
li.  J'.,  5  Duer,  207;  Heard  v.  Duhuquer  Co. 
Bank,  8  Neb.  IG.  In  Mctt  v.  JIaraiii  Nat, 
Bank,  22  llun,  354,  the  note  was  expressed  oa 
its  face  to  be  "  iu  part  jiayment  for  a  portable 
engine,  wliich  engine  shall  bo  and  remain  the 
property  of  the  owner  of  this  note  until  tha 
amount  hereby  secured  is  paid:"  held  nego- 
tiable: P(rr:i  V.  /ligelow,  128  Mass.  129. 

An  agreement    contemporaneous  vsritll 
the  execution  of  a  promissory  note,  tliat  ifc 
is  not  to  be  considered  as  evidencing  any  in- 
debtedness between  the  ]iarties,  or  enforced  a»^ 
a  promissory  note,  is  nudum  pactum  and  voicUj: 
San  Jos6  Savings  Bank  v.  Slone,  59  Cal.  183. 


SI  8095-3101  OBLIGATIONS.  [Div.  Ill,  Part  IV* 

AGteclatJug  or  post-dating.— The  fact  that  payee  ta,ke3  it  upon  that  assurauce,  the  signa- 

A  note  i;?  negotiated    prior  to    the  ihiy  of    its  tare,  though  actuall}'  niailo  long  after  the  eniis- 

datc  is  not  a  susjiicious  circumstance  against  sion  of  the  note,  will  relate  liuck  to  its  date  aud 

which  parties  must  guard:  Drrwsler  v.  Mct'ar-  take  effect  accordingly:    I larriiKjioii  \.  Broani, 

</c^,  8  ^V'oud.  473;  McSparrati  w  Nctley,Q\  Pa.  77  N.  Y.  7-;  see  alio  J/oa^^  v.  Bird,  11   Mass. 

St.  13,  23.     Thus,  where  the  payee,  after  in-  430;  J\IrNau(jhl  v.  McClaurjhry,  42  N.  Y.  '12. 

«lorsing  the  bill,  died  before  the  day  of  its  date,  Generally  tiaie  is  computetl  from  the  date  the 

the  indn-SL-e  was  enabled  to  recover  against  the  instrument  bears  date:  Lwx  v.  Slaiff,  "tO  Iiid. 

drawer:  Id.     Eat  if  tlie  instrument  ij  dated  at  152.     The  same  rules  p 23 ply  to  checks:  Daniel 

a  time  when  it  would  be  valid,  it  may  be  shown  on  Ncg.  Inst.,  sec.  1578. 

that  at  the  real  date  of  its  execution  the  party  DatG   evidence   of    delivery. — Parol   evi- 

was  laboring  under  an  incapiicity,  or  that  the  denee  is  admissible  to  show  that  a  promissory 

contract  came  within  a  statutory  interdiction:  note  was  delivered  at  a  date  other  than  that 

Jiaylcij  V.  Taher,  5  jNIass.  2S3.     XVlicn  a  person  which  it  bears  upon  its  face;  Paije  v.  Carter,  04 

agrees  to  become  a  party  to  a  note,  and  the  Cal.  489. 

80D5i    Different  classes  of  negotiable  instruments. 

Sec.  C0D5.     There  are  six  classes  of  negotiable  instruments,  namely? 

1.  Bills  of  escnange; 

2.  Prcmissory  notes; 

3.  Bank  notes; 

4.  Checks; 

5.  Bonds; 

G.  Certificates  of  deposit 

Cla3.ses  cf  negotiable  instruments. — ^Be-        Certificates  of  stock  are  not  negotfabla 

eides  the  above,  the  following  have  been  held  instrviments:  Bardow  v.  Sactije  jlJiii'mj  Co., 

fithcr  partially  or  wholly  negotiable:  Coupon  01  C.l.  ;>SS;  and  see  an'",  seo.  321,  and  iiote. 
bonds,  quasi  negotiable:  "Uanicl  on  Neg.  Inst.,  EIU3  of  cuclir.n^e:  bee  sees.  3171  ct  scfi. 
sec.  I7O0;  bdls  of  credit:  Id.,  sec.  171G;  bills  of  Promissory  not.^s:  .See  sees.  .3244  et  .scq. 
lading:  8ec.  2127,  anle;  guaranties:  Daniel  oa        Eanli  notes,  bonds,  and  certificate.^  oi 

Neg.  Inst.,  sec.  1774ethcq.;  letters  of  credit,  deposit:  See  sec.  32G1. 
how  far  negotiable:  See  Id.,  sec.  119S.  Ciiecks:  See  sees.  3234  et  sec". 

AETICLE  II. 

INTERPRETATION    OF    NEGOTI.\BLE    INSTROMENTS. 

8093.    Time  and  place  0/ paijment. 

Sec,  0009.  A  negotiable  instrument  which  does  not  spGcify  the  time  of  pay- 
ment is  payable  immediately. 

Time  of  payment:  See  .«ee.  3091,  ante.  dence  aliunde:  Poormnn  v.  :JilU  d-  Co.,  SO  Cal. 

A  patent  ambiguiiy  in  a  negotiable  instru-     345. 
ment  cannot  be  helped  by  averment  or  by  evi- 

SIOO.    Place  of  payment  not  specified. 

Sec.  3100.  A  negotiable  instrument  which  does  not  specify  a  jDlace  of  pay- 
ment is  payable  at  the  residence  or  place  of  business  of  the  maker,  or  wherever 
he  may  be  found.  [Amendment,  approved  March  30,  1874;  AmendmoUti  187J-4, 
262;  took'  effect  Jaly  1,  1874.] 

Place  of  payment.— Where   no  place   of    Neg.  Inst.,  sec.  90;  Story  on  Bills,  sec  48;  and 
payment  is  expressed  in  a  bill,  the  drawee's     sec.  3131,  subd.  'i^,  post. 
place   of  I'esidence   is   understood:    Daniel  on 

8101.    Instruments  payable  to  person  or  his  order,  how  construed. 

S:c.  3101.  An  instrument,  otherwise  negotiable  in  form,  payable  to  a  por.son 
named,  but  with  the  words  added,  "  or  to  his  order,"  or  "  to  bearer,"  or  words 
equivalent  thereto,  is  in  the  former  case  payable  to  the  written  order  of  such 
person,  and  in  the  latter  case  payable  to  the  bearer. 

The  code  commissioners  say  of  this  section:  regard  to  the  transfer  of  negotiable  instruments 
"Ti.ia  section  is  iutendjd  partly  to  avoid  a  jiayablc  to  order  l)y  iudnrsement.  Tlie  as-sign- 
ditijculiy  in  the  general  deiinition  of  negotiable  ment  of  the  note  carried  tlio  mortgage  with  it:" 
paper,  a;id  partly  to  establish  the  right  of  the  DritLe  v.  lldken,  Gl  Cal.  340.  this  langu;i.ge 
l/ayortorequire  the  indorsement  of  the  payee —  was  used  in  deciding  that  a  note  payable  to 
.1  right  w!iieh  is  assumed  in  practice,  but  which  order,  and  not  indorsed,  could  be  passed  by  a 
.haijnot  been  adjudged."  giit  causa  mortis. 

This  section  "has  not  changed  the  rule  in 

530 


Title  XV,  Chap.  I.]    NEGOTIABLE  INSTRUMEXTS  IN  GENERAL. 


3102-3103' 


3102.    Unindori^ed  vofe,  when  negotiable. 

Sec.  3102.  A  negotiable  instrument,  made  payable  to  the  order  of  the  maker, 
or  of  a  fictitious  person,  if  issued  by  the  mater  for  a  valid  consideration,  with- 
out indorsement,  has  the  same  effect  against  him  and  all  other  persons  ha.ving 
notice  of  the  facts  as  if  payable  to  the  bearer. 

Maimer  as  payee. — lu  ]\Ia>n  v.  I/ilfon,  54  Notice  of  the  facts — "  Knowledge  of  the 
Cal.  1 10,  wliero  the  note  was  made  payable  to     facts,"  in  a  similar  New  York  statute,  I  R 


the  niuki  r  and  a  third  person,  auJ  was  indorsed 
hy  the  third  person,  the  court  say:  "  We  are 
convnieed  that  section  3102  of  the  Civil  Code 
is  appHciil  le  to  the  facts  of  this  case;  t'.ie  pur- 


708,  has  been  held  to  be  "  simply  that  the  note 
is  payaMe  to  the  order  of  the  maker  or  of  a  fic- 
titious person.  If  so  payable,  the  name  of  the 
payee    need   not   be    indorsed    thereon    before 


pose  of  the  statute  being  that  the  party  who  negotiation.     It  innst  then  be  treateil,  without 

makes  an  instrument,  negotiable  in  form,  pay-  such  indorsement,  as  anote])ayable  to  bearer." 

able  to  his  own  order,  if  he  receives  a  valid  And  it  has  also  been  conshlered  tiiat  tlie  in- 

consideratiiin  therefor,  shall  be  estopped  from  dorscr  of  snch  a  note  would  not  be  permitted 

asserting,  as  against  one  who  brings  an  action  to  deny  knowledge  of  such  fact  to  defeat  the 

upon  the  instrument,  that  lie  has  not  indorsed  note,  as  he  must  be  taken  to  have  known  the 

it;  and  that  tlie  rule  applies  as  well  where  the  contents:   Irviiirj  N.  B.  v.  Allnj,  T'J  N.  Y.  53G. 

instrument  is  payable  to  the  maker  and  a  third  Pictitioua   payee:    See   next   section,    and 

person  (in  case  it  has  been  indorsed  by  such  note  to  sec.  3US'.). 

third  person)  as  where  it  is  made  payable  to  Payee  generally:  See  sec.  30S9. 
the  maker  alone." 

81C3.   Fictitious  payee. 

Sec.  31C3.     A  negotiable  instrument,  made  payable  to  the  order  of  a  person 
obviously  fictitious,  is  payable  to  the  bearer. 

Obviously  fictitious:  See  sec.  3089,  aide 
Kote  "Order  of  Payee." 


A'o/i/i  V.  Watldiis,  2GKan.  601;  Lane  v.  KreJde, 
22  Iowa,  404;  Forhe.i  v.  E.yiij,  21  Ohio  St.  483. 
Tliis  is  true  of  notes:  Farusiroi-'k  v.  Drake, 
11  Iiid.  103;  Plets  v.  Joluisov,  3  Hill  (X.  Y.), 
115;  Stetriis  v,  Strowj,  2  Sandf.  133.  Recovery 
oil  the  common  counts  allowed:  Forbes  v.  Espy, 
21  Ohio  St.  483. 


Not  obviously  fictitioiis. — Even  where  the 
name  is  not  obviously  fictitious,  the  better 
opinion  is  "  that  a  bill  with  a  fictitious  payee 
may  be  titated  liy  an  innocent  holder  as  if  it 
were  made  payable  to  bearer:"  Daniel  on  Neg. 
Inst.,  sec.  138;  liOfjers  v.  Ware,  2  Neb.  29;  see 

3104.   rreaumplion  of  consideration. 

Sec.  3104.  The  signature  of  every  drawer,  acceptor,  and  indorser  of  a  nego- 
tiable instrument  is  presumed  to  have  been  made  for  a  valuable  consideration, 
before  the  maturity  of  the  instrument,  and  in  the  ordinary  course  of  business. 

Presumption  of  consideration. — "In  other    Neg.   Inst.,   sec.    812.     See    also  ilcGann   v. 


voids,  the  production  of  the  instrument,  and 
^roof  that  it  is  genuine,  where  indeed  such 
proof  is  necessary,  prima  facte,  establishes  his, 
the  holder's,  ca^^e;  and  he  may  there  rest  it:" 
Brovii  V.  Spo'ibrd,  95  U.  S.  478;  Va'lrtt  v. 
Parker,  0  Wend.  G15;  Davis  v.  Bnriletl,  12 
Ohio  St.  544;  liorlon  v.  Da'/iie,  52  Mo.  531; 
Fulmer  v.  Xass<ui  Baulc,  IS  111.  380;  Jack- 
son  V.  Love,  82  N.  C.  405;  Li  re  Titllahds.see 
Mj'j.  (  0.,  04  Ahi.  593;  MerchdvW  d:  P.  N.  B.  v. 
Tra.'<leen,  G2  lia.  271;  Johnson  v.  McM'nrry,  72 
Mo.  2S2;  Blum  v.  Lotj'jins,  53  Tex.  13G,  ap- 
proving the  above  quotation  from  Daniel  on 


Lewi'i.  9  C.d.  243;  Sperr/i  v.  F^panldlnr].  43  Id. 
544;  Poormanv.  Mi. Is,  iV)  Id.  118.  lu  the  last 
case  it  is  decided  that  in  order  to  admit  a 
promissory  note  in  evidence,  proof  of  the  in- 
dorsement is  necessary  unless  waived  when 
offered:  See  Make  v.  Pei/i,oUls,  33  Id.  5o0; 
Youufjs  V.  Bell,  4  Id.  201;  Groj'in  v.  Buckle,  1 
Id.  158,  In  the  absence  of  evidence  to  the 
contrary,  the  presumption  is  that  a  note  was 
indorsed  before  maturity  for  a  valual>Ie  consid- 
eration: Luniiiij  V.  Wise,  04  Id.  410;  Piikner  v, 
Uoodwiu,  5  Id.  458. 


ARTICLE  III. 

INDORSEMENT. 

3103.    Indnrsement,  what. 

Sic.  31(j8.  Oue  who  writes  his  name  upon  a  negotiable  instrument,  other- 
wise than  as  a  maker  or  acceptor,  and  delivers  it,  with  his  name  thereon,  to 
another  person,  is  called  an  indorser,  and  his  act  is  called  iudorsement. 

luclorser  b-foro  delivery:  See  sec.  3117.         utterly  void   as  such:    Liwl-ift;/   v.    Price,   33 

lorin  of  iiiiiO.TiOrasut:  See  next  section  in  Tex.  282;  Frank  v.  Kid'jler.  .30  Tex.  305; 
note.  Jlunhes  V.    K Udell,   2  Bay,   324.     But  an  in- 

A  biU  or  note  cannot  b3  indorsed  for  dorsemeut  making  the  no.e  I'ayuble  one  lialf  to 
part  of  tlu;  amount  due  the  lioldjr,  as  iho  law  A.,  and  one  half  to  !>.,  is^valil.  and  vests  in  A. 
will  not  perm  t  on  ■  cause  of  action  to  Ije  cut  a  id  U.  a  j>>iut  interest:  Fliu/  \.  Ftijit,  (!  Allen. 
up  into  several,  and  such  an  indorsement  is     33;  sec  also  Vonover  v.  E.ui,  26  Iowa,  107. 

537 


1§  3100-3114 


OBLIGATIONS. 


[DiY.  Ill,  Part  IV, 


S1C3.   Ar/recment  lo  indorse. 

Sec.  3109.  One  who  ajfrees  to  indorse  a  negotiable  instrument  is  bound  to 
'write  his  sij^nature  npon  the  back  of  the  instrument,  if  there  is  sufQcient  space 
"thereon  for  that  purpose. 

"  Tli:3  provision  is  new. — Though  an  in-  Fre}i\  09  111.  .31.  If  written  in  pencil  or  marie 
•dorsemi  lit  iipDii  the  face  of  the  instrument  in  by  a  mark,  it  is  sutfieient,  alllKutgh  it  apiifara 
valiil,  Yoioii]  V.  Glover,  3  Jur. ,  N.  S.,  G37,  it  is     that  the  ]iarty  making  t'-.3  mark  couhl  -write. 


unusual  and  would  t-xcite suspicion.  A  creditor 
^vlioagrees  to  accept  an  indorsed  note  insatisfac- 
tioa  ouvjlit  not  to  be  required  to  accejit  such 
an  iiidiii'scment:"  Commissioners'  nute. 

Form  of  iiidorsemeat. — A  signature  con- 
sistingof  initials  merely  will  suffice:  Merchants^ 
Dank  v.  Spicrr,  G  Wend.  4r'^;  Pointer  v.  Ste- 
vens, 1  Denio,  471;  Bank  v.  Flanders,  6  N.  11. 
230;    no'ji-rs  v.   Colt,    6  Iliil,   322;  Corgayi  v. 

alio.    IMien  may  be  made  on  separate  paper. 

Sec.  3110.  When  there  is  not  room  for  a  signature  upon  the  back  of  a  nego- 
tiable instrument,  a  signature  equivalent  to  an  indorsement  thereof  ma}'  bo 
made  upon  a  paper  annexed  thereto. 


And  where  a  person  writes  the  figuns  "1, 
8,"  on  the  back  of  a  bill  of  exchange,  as  a  sub- 
stitute for  his  name,  intending  therehy  to  liind 
himself  as  indorser,  he  will  be  so  bound: 
Broivn  v.  Butch"rs'  etc.  Bank.  41  An).  Dec.  7.").); 
see  Flint  v.  Flint,  6  Allen,  34;  C'osson  v. 
Stfarns,  4  Vt.  11;  Daniel  on  Neg.  Inst.,  sec. 
CSS  a;  sec.  oOS7  ante,  note  "  Signature." 


"Aa  allonge. — In  such  cases  the  hosier  may 
tuck  or  paste  on  a  piece  of  paper  sufficient  to 
1)ear  his  own  and  subsequent  indorsements,  and 
thereon  the  indorsements  maj'  be  made.  Such 
juldition  to  tlie  original  instrameut  is  called  an 


alhnrje,  and  it  becomes,  for  the  purposes  above 
nanied,  incorporated  as  a  part  of  it: "  Daniel  on 
Neg.  Inst.,  sec.  G90;  Crosby  v.  Boub,  IG  Wis. 
622,  G2G;  FoIg.T  v.  Chase,  IS  Pick,  G3;  Freiich 
V.  Turner,  15  Ind.  59. 


Sill.    Kinds  of  indorsement. 

Sec.  3111.     An  indorsement  may  be  general  or  special. 
Daniel  on  Neg.  Inst.,  sec.  G91. 

5112.  General  indorsement,  xohat. 

Sec.  3112.     A  general  indorsement  is  one  by  which  no  indorsee  is  named. 

Indorsement  in  blank.— Where  a  prtmiis-     is  payable  to  bearer:  Poorman  v.  MUU,  35  CaL 
i;ory  note  is  indorsed  in  blank,  the  title  and     116;  Curtis  v.  Sprague,  51  Id.  239. 
right  of  action  pass  by  delivery,  and  the  note 

5113.  Special  indorsement,  ivhai. 

Sec.  3113.     A  special  indorsement  .specifies  the  indorsee. 

Indorsement  in  full  prevents  any  one  from  indorsee  or  his  representative  alone  can  sue 
indorsing  the  instrument  except  the  indorsee:  upon  it:  Laivrence  v.  FusstU,  Ti  Pa.  St.  400; 
Mead  v.  Youmj,  4  T.  R.  2S.     And  the  siiecial     Ileanter  v.  BelL  79  Id.  292. 

5114.  General  indorsement ,  Jiow  made  special. 

Sec.  3114.  A  negotiable  instrument  bearing  a  general  indorsement  cannot 
be  afterwards  specially  indorsed;  but  any  lawful  holder  may  turn  a  general 
indorsement  into  a  special  one  by  writing  above  it  a  direction  for  payment  to  a 
particular  person. 


Subsequent  special  indorsement:  Wnffr- 
vllet  Bank  V.  White.  1  Denio,  GOS,  cited  liy  the 
commissioners,  decides  that  where  a  note  is 
indorseil  in  LL.nk  by  the  payee,  and  is  after- 
wards transferred  by  a  special  indorsement,  the 
note  is  still  transferable  by  delivery,  under 
the  blank  indorsement,  for  by  strking  out  the 
f'pccial  indorsement,  and  tlierehy,  of  course, 
striking  out  all  subsequent  indorsers,  the  note 
will  remain  mi-rely  indorsed  in  blank:  Id.  012. 
They  further  cite:  Mltrh'll  v.  Fuller,  M  Pa.  St. 
208;'  Walhr  v.  McDonull,  2  Excli.  527;  Smllh 
V.  Clark.  1  Esp.  ISO;  Crviddey  v.  Maim,  5 
Taunt.  529;  an  examination  of  which  fails  to 
support  all  the  inferences  which  follow  from 
the  language  of  the  text. 

VxT.  Daniel  says:  "If  a  bill  or  note  be  once 
indorsed  in  blunk,  though  afterward  indorsed 
in  full,  it  will  still,  as  against  the  drawer,  ac- 


ceptor, maker,  payee,  the  blank  indorser,  and 
all  indorsers  before  him,  be  paj'able  to  bearer, 
thou^'h  as  against  the  special  in  lorser  himself, 
title  must  be  made  through  his  indorsee:  Smith 
V.  Clarke,  Peake,  225;  Walker  v.  McDonald,  2 
Exch.  527;  J/a'icrsham  v.  Lehnan,  G3  fJa.  3S3; 
Johii.-'on  V.  Mitchell,  50  Tex.  212:"  Daniel  on 
Ne>..  Inst.,  sec.  0U6. 

Ri^ht  of  holder  under  blanli  indorse, 
ment. — The  holder  of  a  jjromi-sory  note  in- 
dorsed in  blank  may  fill  out  the  indorsement  to 
himself,  but  as  such  change  is  furmal  merely, 
it  need  not  be  made;  and  so  a  note  indorsed  in 
blank  is  admissible  in  evidence  in  snpiioi-tof  an 
allegation  that  the  note  was  indorsed  to  the 
plaintiir  by  the  payee:  Poorma.ii  v.  il/;//s,  .35 
Cal.  118.  Or  he  may  fill  it  out  to  anotlier  per- 
son, or  su;)erscribe  any  contract  consistent 
with  the  character  of  an  indorsement:  L'vdit  v. 


533 


TxileXV,  CiiAr.  I.]    NEGOTIABLE  II^STnUME^'TS  IN  GEIvCRAL. 


§§3115,3116 


Gee,  11  Pet.  SO;  Itees  v.  Conecoch^nqiie  Banh,  5 
Rand.  329;  Ilanre  v.  Mllln;  21  111.  CnO;  Hunter 
V.  Jlempsifcid,  1  Mo.  07;  Utter  v.  Cosbi/,  2  P;i. 
911;  CciUral  Bank  v.  Davi<,  10  Pick.  S7G; 
Teniiei  v.  Prince,  4  IJ.  38.");  Coxdon  v.  Pcarce, 
43  J\ia.  83;  JohuKon  v.  MUcholl,  50  Tex.  212; 
Andreirs  v.  Sii:inis,  33  Ark.  771.  Btit  lie  can 
not  rularge  tLio  liability  of  t!ie  iiulofsei-  in 
blank  hy  writing  over  it  a  waiver  of  any  of  his 


rights,  such  as  demand  and  notice:  Daniel  on 
Keg.  Inst.,  sec.  C9i;  2  Parsons  on  Notes  and 
Eilis,  20;  Edwards  on  Dills,  273;  Central  Bank 
V.  Davis,  10  Pick.  37G.  The  holder  cannot  till 
up  the  indorsement  so  as  to  make  it  payable  in 
part  to  ditrorent  persons:  Encia  v.  Ljnn,  16 
Ohio  St.  547;  see  note,  sec.  3108,  an/e;  see, 
genenilly,  note  to  Camden  v.  JlcKoi/,  38  Aon. 
Dec.  99. 


3115.    Dcslrudion  of  negotiability  bij  indorser. 

Sec.  3115.     A  special  iudorsement  may,  by  expi-ess  WDrds  for  that  purpose, 

but  not  oLberwise,  be  so  made  as  to  render  the  instrument  not  negotiable. 

Rsstriativo  indorsement. — "Pay  the  con-  transfers  tlie  instrument  for  his  own  debt,  or  in 

tents  to  J.  S.  onl}',"  or  "to  J.  S.  for  my  use,"  any  other  manner  violative  of  his  trust,  the 

or   "to  order  for  my   use,"  or   "for  me,"  or  transferee  takes  the  instrument  subject  to  the 

"credit   my  account,'"  or  "pay  J.  S.  or  order  trust,  is  liable  to  refund   the  bill  or  note  or 

for  account  or  on  account  of  C.   D.,"  are  re-  the  money  received  upon  it  to  the  party  making 

strictive  indorsements,  and  put  an  end  to  t!ie  the  restrictive  indorsement,  and  cannot  sue  the 


restrictive  words  indicate  that  the  indorsee  is  ou  Bills,  sec.  211. 
Merely  an  agent  t  >  receive  the  money,  and  tliat         Reviving  nesotiability. — The  negotiability 

he  paid  no  consideration  for  the  jiaper."     Tims  having  been   restricted,  it  may  be  revived  by 

the  indo:se!nent  "for  collection,"  when  tiie  in-  tlie   indorser's   subsequent   indorsement  to  an 

struments  are  delivered  to  a  bank  for  collection,  indorsee  for  value:  Alkins  v.  Cobb,  53  Ga.  80; 

i.3  restrictive,  and  makes  the  indorsee  merely  llofm'S  v.  Hooper,   1  Bay,  103.     And  it  is  no 

tlic  agent  of  the  indorse r  to  collect  tiie  amount  objection  to  recovery  on  a  bill  that  by  special 

due:  i:o<k  Cuuiity  jS'ulioiial  Bank  v.  IloUiKtcr,  indorsements  on  it  title  is  shown  oat  of  the 

21  Minn.  SS5;  M'chanics'  Bank  v.  Valley  Park-  payee  without  any  retransfer  from  the  last  in- 

iiiCj   Co.,   4  Mo.  App.  200;  S.  C,  70  Mo.  013;  dorsee   to   him,    if    there   be   pi-oof    that    the 

Ciajlln  V.  Wilson,  51  Iowa,  15.     The  restrictive  indorsements  were  made  simply  for  collecting 

words  made  use  of  give  notice  of  the  nature  of  the  bill,  and  that  the  indorsee?  had  no  interest 

the   indorsee's   interest,  and   if  such   indorsee  in  it:  Nacjlee  v.  Lyman,  14  Cal.  450. 

31iG.    Implied  icarranty  of  indorser. 

Sec.  311G.  Every  indorser  of  a  negotiable  instrument,  unless  his  indorse- 
ment is  qualified,  waiTants  to  every  subsequent  holder  thereof,  who  is  not  liable 
thereon  to  him: 

1.  That  it  is  in  all  re.spects  what  it  purports  to  be; 

2.  That  he  has  a  good  title  to  it; 

3.  That  the  signatures  of  all  prior  parties  are  binding  upon  them; 

4.  That  if  the  instrument  is  dishonored,  the  indorser  will,  upon  notice 
thereof,  duly  given  to  him,  or  without  notice  where  it  is  excused  by  law,  pay 
the  same  with  interest,  unless  exonerated  under  the  provisions  of  sections  thirty- 
one  hundred  and  eighty-nine,  thirty-two  hundred  and  thirteen,  tliirty-two 
hundred  and  forty-eight,  or  thirty-two  hundred  and  fifty-five.  \ Amendment, 
ajyproved  March  oJ,  1874:;    Amendments  1873—4,  233;  took  effact  Jahj  1,  1874.] 

Inquiring  into  the  consideration  paid. —  who  indorses  it,  when  he  presents  it  to  the 
As  between  an  iadorser  and  his  ini;ueiliate  in-  drawee,  altlion.;',!  warranting  the  genuineness 
dorsee,  the  consideration  for  the  transfer  may  be     of  the  prior  inilorsements  and    his  own   title. 


be  iiujLiiied  into:  Daniel  on  Neg.  Inst.,  sec.  174; 
Spnnjiii  v.  MrPhcrti'rs.  42  lad.  527;  where  the 
consideration  passing  between  the  ind(jrsee  and 
his  indorser  is  not,  ecjual  to  the  amount  of  the 
paper,  the  indorsee,  in  an  action  against  the  in- 
dorser, can  recover  only  the  consideraLion  lie 
has  actually  paid:  Coyey.  Palmer,  10  Cal.  158. 

"Want  or  failure  of  consideration:  See  sec. 
3122,  and  note. 

Subd.  1.  What  it  purports  to  be.— The 
indorser  warrants  the  validity  and  genuineness 
\J.  tlie  note;   but  the   holder  of  a  bank  check 


neither  undertakes  for  the  genuineness  of  tho 
drawer's  signature,  nor  that  the;  check  has  not 
been  altered  in  amount.  Therefore  the  right 
of  the  drawer  to  recover  back  money  paid  on 
an  altered  cheek  rests  upon  the  fact  that  tha 
money  was  paid  by  the  drawee  without  a  con- 
sideration, not  upon  an  im;)lied  contract  by  the 
indorser  to  refund:  liedimjlon  v.  Woods,  45  Cal. 
40J. 

Subd.  2.  Good  title. — Wlicn  the  makers  of 
a  cerli.icate  of  deposit,  after  payiu'^  the  aaiou'it 
to  an  uidorsee,  who  guarantees  the  geuuiueuoss. 


539 


§3116 


OBLIGATIONS. 


ipiv.  Ill,  Part  IV, 


of  the  pa3'ee'3  inlorsement,  are  o1>ligecl  to  pay 
the  amount  a^jain,  together  witli  the  costs,  to 
tlie  payee,  upon  proof  by  him  that  his  signature 
in  the  indorsement  is  forged,  the  makers,  in  an 
action  against  the  indorsee,  may  recover  the 
costs  paid  Ly  lliein  in  the  foi-mer  action:  3IiUs 
V.  Banuy,  22  C'al.  240. 

A  for_,'ed  instrument  carries  no  title  to  the 
indorsee;  and  w  here  a  tliief  or  finder  of  ncgo- 
tialjlo  i:a])er  payable  to  order,  which  lias  b^eu 
indorsed  and  put  in  circulation  by  tlie  payee, 
erases  the  i:idori=emeut,  and  subsecjuently,  per- 
sonating the  payee,  forges  his  signature  and 
transfers  tlie  paper  to  a  honajldc  purchaser  for 
value,  no  title  passes  as  against  the  true  owner: 
('oi-.oii  V.  A  mot,  57  N.  Y.  253;  Graves  v.  Am. 
Exrh.  Dan':,  17  Id.  205. 

Gubd.  3.  Tlia-  signatures  are  binding. 
Theielore,  if  the  drawer,  acceptor,  or  maker 
becanie  a  i)arty  under  duress,  Bowman  v.  Hit- 
lev,  loJ  Mass.  I'l^J,  or  were  an  infaut,  lunatic, 
or  married  woman,  the  indorscr's  contract  is 
broken:  llahf  v.  Lane,  2  Atk.  ISI;  see  Uobert- 
son  V.  Al'fii,  59  Tcnn.  233;  Archer  v.  Shea,  14 
Hun,  403;  Kenirorthji  v.  Sawyer,  125  Mass.  2S; 
JJurrill  V.  Smith,  7  Pick.  291.  The  better  o;)in- 
ion  extends  the  indorser's  guaranty  of  compe- 
tency to  Ids  prior  indorsers,  as  well  as  to  the 
original  parties,  as  is  indicated  in  the  text: 
Daniel  on  Neg.  Inst.  sec.  G7G. 

Acceptanje  of  bill  of  exchange  admits 
genuineness  of  drawer's  signature:  See  sec. 
a  109. 

Subd.  4.  Dishonor. — Between  the  engage- 
ments of  tlio  maker  and  acce[)tor  and  of  the 
drawer  and  indorser  this  distinction  exists,  tiiat 
the  contract  of  the  maker  and  acceptor  is  ab- 
Bolute  to  jiay  at  maturity,  and  no  presentiment 
is  necessary  to  charge  them:  Sec.  3130,  poif; 
while  the  contract  of  the  drawer  and  indor.icr 
is  conditional,  being  contingent  upon  the  true 
presentment  at  maturity,  and  due  notice  in 
case  it  is  not  paid:  Sees.  3141-3151,  pas';  unless 
a  sulhcient  cause  intervene  excusing  the  holder 
from  the  pvi-formance  of  tiiis  duty:  Sees.  3155- 
31G0,  ])osl;  Daniel  on  Neg.  Inst.,  sec.  57 1 ;  Keys 
V.  Feu.-itcrmaker,  24  Cal.  320.  And  this  condi- 
tion precedent  of  t!ie  indorser's  contract  cannot 
be  shown  to  have  been  waived  by  parol  evi- 
dence of  a  verbal  promise  to  that  effect:  Gold- 
man V.  ])avU,  23  Cal.  256. 

An  iiidorser  after  maturity  is  entitled  to  de- 
mand and  notice:  Be<'he  v.  LSrooks,  12  Cal.  300; 
rote  to  Eefert  v.  De.  Coudres,  12  Am.  Dec. 
611. 

A  promise  to  pay  a  note,  made  by  an  in- 
dorser  after  its  maturity,  where  no  demand 
has  been  made  or  notice  given,  and  madj  with 
full  kuowle  Ige  of  the  holder's  laches,  is  biiul- 
iug  upon  the  indorser;  but  this  promise  must 
be  established  by  clear  and  distinct  evidence: 
Keys  v.  FenstT.H'.br,  21  Cal.  320;  Curtis  v. 
Sprajne,  51  II.  230.  When  a  party,  iu  con- 
sider ition  of  a  conveyance  of  laud  to  him,  un- 
dertakes to  pay  an  outstanding  note  of  his 
vendor,  and  writes  his  name  on  the  back  of  tlie 
note  as  a  memorandum  of  said  agreement,  at 
the  same  time  acknowledging  his  liability,  he 
assumes,  not  the  conditional  liability  of  an  in- 
dorser, but  he  is  primarily  and  unconditionally 
liable  to  the  extent  of  the  uote:  Palmer  v. 
Tripp,  8  Id.  1)5. 

Indorssr  and  indorsee — Amount  of  re- 
(DOvery. — Instead  of  "pay  the  same  with  iu- 


terept,"  this  clause  read,  l>efore  the  amend- 
ment of  1S74,  "pay  so  much  of  the  same  aa 
the  holder  paid  therefor,  with  interest.-"  And 
although,  iu  the  opinion  of  the  code  commis- 
sioners, this  clause  had  reference  merely  to  the 
case  of  an  action  by  an  indorsee  against  hia 
immediate  indorser,  nevertheless,  by  consider- 
ing it  in  connection  with  the  context  of  thia 
subdivision,  it  wid  be  perceived  to  have  had  a 
much  wider  scope.  For  looking  upon  the  lan- 
guage of  this  subdivision  as  it  stood  before  the 
amendment  of  1874,  it  certainly  permiis  the 
inference  that  any  indorser,  in  a  suit  against 
him  upon  the  negotiable  piper,  may  impure 
into  the  consideration  paid  by  the  holder.  At 
least,  the  wording  of  the  subdivision  appeared 
faulty  to  the  code  examiners. 

It  has  been  decided  in  California  that  in  an 
action  between  an  indorsee  and  his  immediate 
indorser  the  indorsee  can  recover  only  the 
consideration  he  has  actually  paid:  Coye  v. 
Palmer,  IG  Cal.  158.  But  as  between  the  in- 
dorsee and  other  prior  parties,  the  indorsee  ia 
a  bona  fide  holder,  even  if  ho  purchased  the 
uote  for  less  than  its  face  value  and  as  a  spec- 
ulation: Schoen  v.  llowildon,  50  Id.  528. 
Further  illustrations  of  this  rule  will  lie  found 
in  Brown  v.  Mott,  7  Jolins.  300;  Ilarjer  v. 
Wilsoi),  03  Barb.  237;  Lane  v.  Steward,  20 
Me.  104;  Drork  v.  Thompson,  1  Bailey  L.  323; 
N:Me  V.  Walker,  32  Ala.  45G;  Sevenson  v.  Un- 
krfer,  14  111.  105.  It  is  to  be  remarked  that 
this  is  only  one  of  the  several  views  adopted 
by  ditferent  courts  in  deterinning  the  question 
of  the  amount  of  recovery  when  the  indorsee 
pays  his  indorser  less  than  the  amount  of  the 
paper,  and  which  will  be  found  ably  classified 
in  Daniel  on  Neg.  Inst.,  secj.  7'>2-7GS. 

Oolier  causes  of  releaso  of  indorser. — Be- 
sides by  neglect  of  jiresentment  and  notice,  the 
indorser  is  released  from  his  liability  in  other 
ways,  resulting  from  the  resemblance  which  hia 
contract  bears  to  that  of  principal  and  surety. 
Thus  the  indorser  maybe  disc.iargcd:  1.  Mis- 
representation or  concealment  to  induce  his  be- 
coming a  suretj';  2.  Diversion  of  the  instrument 
from  tlie  agreed  purpose;  .3.  Alteration  of  the 
instrument;  4.  Payment;  5.  Helea.se;  G.  Satis- 
faction; 7.  Covenant  not  to  sue  .a  prior  party; 
8.  Parting  with  .security  for  the  debt;  9.  Agree- 
ment to  indulge  prior  party  by  extension  of 
time  or  forbearance  of  suit:  Daniel  on  Neg. 
Inst,  sec.  130S;  see  note,  sec.  2319,  a/ire. 

The  substitution  of  a  new  security  will  dis- 
charge an  indorser:  Smith  v.  Harper,  5  Cal. 
320. 

Mere  extension  of  time  to  tlie  maker  of  a 
promissory  note  is  not  sulucient  to  discharge 
a  surety  or  indorser.  To  operate  as  such  dis- 
charge, the  agreement  with  the  maker  must  be 
founded  upon  a  valuable  consi'leiation,  and  be 
such  as  will  suspend  the  right  of  action  against 
the  maker:  Williams  v.  Covillaud,  10  Cal.  419. 
Paying  part  of  the  note  wlien  tlie  whole  is  ilue 
is  no  consideration  for  such  an  agreement: 
Lienhirj  V.  Gould,  J  3  Cal.  508. 

Forging  name  of  indorser.— That  a  nego- 
tiable note  is  such  an  instrument  as  it  will  be 
forgery  to  write  without  authority  the  name  of 
the  payee  on  the  back  for  the  ]nirpose3  of  de- 
scripaon,  sea  People  v.  Ferrii,  50  Cal.  442. 

Drawjr  of  bill  of  exolianja  on  aocept- 
an^e  has  rights  of  a  first  indorser:  See  sec. 
3177. 


640 


Title  XV,  Chap.  I.l    NEGOTIABLE  INSTRUMENTS  IN  GENERAL. 


§§  3117-3120 


3117.    Indorser,  icJien  liable  to  payee. 

Sec.  3117.     One  wlio  indorses  a  negotiable  instrument  before  it  is  delivered 
to  the  payee  is  liable  to  the  payee  thereon  as  an  indorser. 


The  various  .sections  of  the  code  pertinent 
to  this  subject  came  before  the  supreme  court 
for  construction  in  Fesaenden  v.  Sammers,  02 
Cal.  4S4,  an  action  on  a  promissory  note 
signel  by  Summers  to  tlie  order  of  the 
plaintifT  aud  indorsed  in  blank  before  deliv- 
ery by  tlefeudant  Thompson.  Sections  2787 
and  2S07,  in  regard  to  guaranty,  were  cited 
by  counsel  as  controlling  tlie  case,  but  the 
court  ruled  that  it  was  directly  within  the  pro- 
visions of  section  3117,  supra,  and  that  Tliomp- 
son  was  li.abla  as  an  indorser  and  as  sucli  enti- 
tled to  notice  of  non-payment:  See  also  Fisk  v. 
MiUrr,  G.]  Id.  3G7. 

Indorser  deHued;  Sec.  310S. 


Indorser  before  delivery. — Of  this  section 
the  code  cumuiissioutrs  say:  "Tliis  is  the  sub- 
Btauce  of  the  decision  in  Moore  v.  CVo.s-.s,  19  N. 
y.  227.  Bub  previous  cases  have  so  compli- 
cated the  question  that  it  is  necessary  to  clear 
up  tlie  confusion  by  a  positive  rule.  It  has 
long  been  maiutaincd  that  an  indorser  before 
delivery  to  the  payee  does  not  mean  to  be  re- 
sponsible to  him,  and  thour;h  thia  doctrine  is 
now  overruled,  yet  the  decision  is  ])ut  upon 
grounds  that  arc  needlessly  technical." 

Hitherto  such  an  indorser  has  been  called  a 
guarantor:  See  note  to  sec.  2S07,  ante,  and 
Clarice  v.  Smil/i  d-  Parke,  2  Cal.  GO.').  As  to  ac- 
commodation iudorsers  in  general,  see  note  to 
Perkins  v.  VatUn,  29  Am.  Dec.  297. 

8118.   Indorsement  without  recourse. 

Sec.  3118.  An  indorser  may  qualify  liia  indorsement  with  the  words  "  with- 
out recourse,"  or  equivalent  words;  and  upon  such  indorsement,  be  is  respon- 
sible only  to  the  same  extent  as  in  the  case  of  a  transfer  without  indorsement. 


Indorser  "-wrlthout recourse." — On  indors- 
ing in  this  manner  the  indorser  nevertheless,  by 
the  very  act  of  t;-ausferring  the  instrument, 
engages  that  it  is  v,hat  it  purports  to  be,  and 
if  ib  ajipears  that  it  is  not  what  it  would  seem 
to  be,  he  becomes  liable.  "And  therefore," 
Bays  Jlr.  Daniel,  "tlie  holder  may  recover 
against  the  indorser  'without  recourse;'  1.  If 
any  of  the  prior  signatures  were  not  genuine: 
Dumont  v.  lyUliainnon,  IS  Ohio  St.  51J;  or,  2. 
If  the  note  was  invalid  between  the  original 
parties,  because  of  the  want  or  illegality  of 
the  consiileration:  DLethinj  v.  Levering,  oS  Mc. 
637;  Jfaininm  v.  Juchardsoii,  43  Vt.  503; 
ChalLss  V.  IJcCrum,  22  Kan.  137;  contra: 
Baijiie  V.  JJlllo,  27  La.  Ann.  622;  or,  .3.  If  any 
prior  party  was  incompetent;  or,  4.  Tlie  in- 
dorser was  without  title:  C'hallUt  v.  JlCrnm, 
22  Kan.  127,  approving  text."  See  Ma;/-^  v, 
Calllson,  G  Leigh,  2o0;  Ticonic  Bank  v.  Smiley, 


27  Me.  22 J ;  Oher  v.  Goodrid'je,  27  Gratt.  878; 
Daniel  on  Neg.  Inst.  sees.  070,  700. 

An  indorsement  without  recourse  is  not  out  of 
the  duo  course  of  trade,  and  is  not  a  suspicious 
circumstance  connected  with  the  pa[)er:  Lomax 
V.  Plot,  2  Rand,  2G0;  Stevenson  v.  O'Xeil,  71 
111.  314;  K'llnj  v.   Whitne.i,  4a  Wis.  117. 

Equivalent  words. — "To  relieve  one  who 
Indorses  paper  from  liability  as  such,  he  must  in* 
Serbia  the  contract  itself  words  clearly  express- 
ing such  an  intention:"  Per  (jvo\qv,  J.,  in  Fassin 
V.  Hubbard,  53  N.  Y.  470,  where  "Brauder& 
Habbard,  old  firm  \.\  liquidation,"  was  held  not 
suGcicnt:  See  Wade  w  Wade,  33  Tex.  529. 

"  Sans  rccours,"  "at  the  indorsee's  own 
risk,"  would  be  suiUcient:  Daniel  on  Neg.  Inst., 
sec.  700;  also  t'ne  following:  "I  transfer  all  my 
right  and  title  to  the  within  note,  to  be  enjoyed 
in  the  same  manner  as  may  have  been  by  me:" 
Uallei/  V.  Falconer,  32  Ala.  530. 


3119.   Same. 

Sr;c.  3119.  Except  as  otherwise  prescribed  by  the  last  section,  an  indorse- 
ment, without  recourse,  has  the  same  effect  as  any  other  indorsement. 

See  note  to  preceding  section. 

8123.    Indorsee  privy  to  contract. 

Sec.  3120.  An  indorsee  of  a  negotiable  instrument  has  the  same  rights  against 
every  prior  party  thereto  that  he  would  have  had  if  the  contract  had  been  made 
directly  between  them  in  the  first  instance. 

I.l -'moranda. — The  codo  commissioneis  say:    thereof,  and  may  be  pleaded  by  plaintifT  or  de- 


"Scj  C.  i.iicol  I  V.  Haven,  25  N.  Y.  5J5;  Pot/iUl 
v.  Waaler,  3  i>arn.  &  Adol.  114.  Thi^j  princi- 
ple is  one  of  great  importance,  particularly 
with  reference  to  representations  contained  in 
commeic  al  paper,  which  are  deeiiud  to  bo 
mailo  directly  to  every  indorsee."  And  t'.-iey 
cite  C,i6u-ol(t  V.  //aren,  supra;  and  PolhHl  v. 
Wul  er,  supra,  w!iic!i  are  cases  w'lcro  actions 
lay  in  iavor  of  t!io  holder  in  case  of  false  rcpre- 
seutntioas  by  a_'en  3  of  prior  parlies. 

"Where  a  mDniorandum  is  taade  by  the 
agreement  of  tlio  parties  before  si.;iiin ,',  it  will 
bind  all  parties  t.)  the  instrument  ami  all  wlio 
have,  or  are  legally  presumed  to  have,  notice 


fendant:  Ci/l  \:' Jlall,  1  Ilumpli.' 430:  Ilatjicli 
V.  Grfflth,  1  Le:i,  301;  Perry  v.  Dl'jdow,  123 
Mass.  12,');  2  I'arsons  on  Notes  and  Uills,  539; 
Bylcs  o:i  Bills,  100, 

Parol  evidence  is  admissible  to  show  the 
time  when,  tlio  person  by  whom,  and  tlie  cir- 
cumstances under  which  a  memorandum  has 
been  made.  "If  made — aud  it  will  bo  pre- 
sumed that  it  was  maile — contemporaneously 
wit'.i  the  execution  of  the  instrument,  and  as  a 
cnnstituent  part  thereof,  ib  will  bo  given  full 
effect,"  as  stated  above:  See  Flebher  v.  Dlodijctl, 
10  Vt.  20;  llarvey  v.  EffiiKjer,  33  Miss.  532. 
Doubt  thrown  upon  the  presumption  if  written 

541 


SS  3121-3123 


OBLIGATIONS. 


[Dr/.  Ill,  Taut  IV, 


on  back  of  note:  2  Parsons  on  Notes  and  "D'.Ws,  it,  hu'mg  a  material  alteration:  /)^?/v?/  v.  I?efd, 

644;  Din/  V.  SpraUrr,  50  JMiss.  3150.     "  If  made  4 )  Burl).  IG;  LV,7(  v.  C'ric/c,  1  Mce.  &  \V.  231:" 

after  its  exccuiion,  and  with  tlie  consent  of  a'.l  Daaxl  on  Nc.,'.  InsL,  sec.  134. 

parties,  it  will  modify  and  control  its  operation;  Co-laieral  seourity  ji.issea  with  a  transfer 

r.nd  if  made  by  a  stranger,  without  tlie  consent  of  the  Inllor  note:  Sees.  2Joo,  200;),  uu(e ;  Xew 

of  any  pai'ty,  it  will  be  a  spoliation  and  bo  dis-  Loudon  D'k  v.  Lef,  '21  Am.  Dec.  713,  and  note 

regarded;  wliile  if  made  by  the  holder,  wilhout  720;  Daniel  on  Neg.  Inst.,  sec.  831. 
consent  of  the  parlies,  it  will  vitiate  and  avoid 

8121.  Rights  of  accommodation  indorsrrs. 

Section  3121  was  repealed  by  act  approved  ilarch  30,  1874;  Amendments  1873  "t)  203;  took 
effect  July  1,  1S74. 

8122.  Effect  of  wnnt  of  consideration. 

Sec.  8122.  The  want  of  consideration  for  the  unclertakinjj  of  a  mnlrer, 
acceptor,  or  iudorser,  of  a  negotiable  instrument  does  not  exonerate  him  from 
liability''  thereon  to  an  indorser  in  good  faith  for  a  consideration. 

Illegal  consideration. — A  note  given  for 
part  of  the  purc'.iase  money  of  timber  growing 
on  public  lauds  ia  void:  iSioanrjcr  v.  Maiiberrn, 
50  Cal.  91.  It  does  not  appear  that  the  question 
arose  between  the  maker  and  indorsee. 

Pailuro  cr  V7ant  of  co.isidoratio:i  between 
the  immediate  parties  to  the  contract  cannot  be 
eet  up  as  a  defense  in  a  suit  brought:  1.  By  an 
indorsee  against  the  maker  of  a  note:  Price  v. 
Keen,  40  N.  J.  L.  332;  EUierldje  v.  Gal/a- 
gkrr,  55  Miss.  434;  2.  By  an  indorsee  against 
a  ])rior,  but  not  his  immediate,  indorser:  Id.; 
1  Parsons  on  Notes  and  Bills,  170;  nor,  3.  By 
the  payee  against  the  acceptor  of  a  bid,  as  a 
general  rule:  Lajliii  <t  li.  Powder  Co.  v.  Sin- 
aheimer,  43  Md.  411;  /lojfman  <£•  Co.  v.  Bank  of 
Milwanlcee,  12  Wall.  181;  Harsh  v.  Lmo,  55 
Ind.  271.  When  tlie  plaintiff  is  a  purchaser  for 
value  without  notice:  See  Ilaight  v.  Jo  ice,  2 
Cal.  G4;  FnHer  v.  Ilidchlnj^  10  id.  523;  Tfiorne 
V.  Yontz,  4  Id.  321 ;  Cohen  v.  Gonx,  43  Id.  97. 

And  even  if  the  balder  had  notice  of  the  in- 
firmities of  the  instrument  at  the  time  it  came 
into  his  hands,  nevertlicless  if  he  acquire. 1  it 
from  a  bjna  fide  holder  for  value,  who  was  un- 
affected by  any  of  these  defenses,  he  will  also 
take  it  freed  from  such  defenses,  although  ho 
has  notice  of  tiiem,  for  he  caimot  be  placed  on 
aworsc  footing  than  his  transferrer.  Any  other 
rule  would  strilce  at  the  life  of  tlie  instrument, 
for  to  prohibit  a  bona  fide  purcliaser  "from 


selling  as  good  a  right  and  title  as  he  himself 
has  would  destroy  the  very  object  for  which 
tliey  are  secured  to  him;  would,  indeed,  be 
paradoxical:"  Daniel  on  Neg.  Inst.,  sec.  803; 
CornmU'iioner.?  v.  Clarl:,  91  U.  S.  235;  Ul'ry  v. 
Shaivharker,  50  Ind.  592;  Khiueif  v.  Kruse,  28 
\Vi-,.  190;  Aforni/er  v.  Cooprr,  35  Iowa,  2~)7; 
R  hertsv.  Lane,  Gl  Me.  103;  llorjan  v.  Moore, 
43  (Ja.  1,53;  Woodworth  v.  Ilmitoou,  41  111.  131; 
B:sxeU  V,  Averii,  15  Ohio  St.  23D;  Wat-^on  v. 
Flanajan,  14  Tex.  354;  see  Folsoin  v.  BarLlett, 
2  Gd.  1G3. 

In  an  action  on  a  promisory  note  and  for  a 
foreclosure  of  a  mortgage,  pivcn  as  purchase 
money  and  security  for  the  price  of  1  .ncl  bought, 
til  J  defendant  set  up  failure  of  consideration, 
i:i  misi'epresentations  as  t )  boundaries  and  ]iar- 
tial  failure  of  title,  and  ofTcrcJ  to  rescind,  but 
not  o.Teriug  to  prove  an  ovictiou.  t!io  evidence 
wa^  c.\cljde;l:  A'den  v.  Pri/at,  GO  Cal.  215. 

P-'D-eH'otins  debt:  See  note  to  sec.  3123, 
"Value." 

L3.J.3  tlian  f,-iC3  valu3  civon  Tor  UDt3:  See 
note  to  sec.  3123. 

CDUjidsratloa. — Information  as  tooutstand- 
ing  title  to  land  in  the  a.lverje  possession  of 
a;io  her  ia  a  sudicient  consideration  for  a  note: 
Lti~a-'  V.  Pico,  55  C.d.  1 2 J. 

V7"rltiu3  imports  con3id:3ration:  Sec.  1G14. 

Inquiry  into  coasidsratioii:  See  also  uota 
to  sec.  3110. 


8123.    Indorsee  in  due  course,  what. 

Sec.  3123.  An  indorsee  in  due  cour.^e  is  one  who,  in  good  faith,  in  the  ordi- 
nary course  of  business,  and  for  value,  before  its  apparent  maturity  or  presump- 
tive dishonor,  and  without  knowledge  of  its  actual  dishonor,  acquires  a  nego- 
tiable instrument  duly  indorsed  to  him,  or  indorsed  generally,  or  payable  to 
the  bearer. 

Presumptive  diolioaor:  Sec  sec.  3133,  and 
note. 

Good  faith — At  different  periods  of  the 
English  law,  ".suspicious  circumstance.^,"  which 
ought  to  cause  inquii'y,  and  then  "gros.^  neg- 
ligence," have  b;:cn  declared  suincieut  to  es- 
tablish 7im!a  fiden  in  a  holder  otlierwise  entitled 
to  the  immunities  of  a  bona  f  le  holder;  but 
these  moddiciitions  of  tlie  origin.il  rule  were 
found  faulty  when  put  to  the  test  of  experi- 
ence, and  therefore  abandoned.  The  rule  ij 
now  firmly  established  in  England,  that  while 
gross  negligence  may  be  evidence  tending  to 
ehow  7)uUa  flee,  and  as  such  aduiissiblo,   it 


fde-'^,  and  is  not  sufficient  to  afftct  the  holder 
with  notice  of  defects,  or  to  deprive  him  of  his 
right  to  recover:  G  'odman  v,  llarve>i,  4  Ad.  & 
El.  870  (1834).  The  latter  r.ilc,  al't-r  some 
wavering  in  favor  of  tho  rule  of  "su.spicious 
cirouiuscances,"  may  be  co;isidf;rc  1  a  J  no\v 
Urm'y  esta'olislied  i:i  Ar.ierica:  S-hcen  v. 
//f>u:j!don,  50  Cal.  528;  S'c/'nl  v.  A'«/.  C'lirrenc;/ 
Bull;  51  N.  Y.  2SS;  MrSjmrrai  v.  Xerl^,  91 
Pa.  St.  17;  Sioft  v.  •■wn.r*,  132  U.  S.  4H;  Citi- 
zens' Nat.  Bank  v.  iJi>opr,  41  Ml.  83;  Mat- 
theiu'i  V.  P)^j/'( /•(.«,  4  G.i.  237;  uO'c''i:ul  v.  Fow- 
l"r,  47  Cju;i.  317;  Shmoi  v.  li'/if-iei/,  130 
Mass.  501;    Pond   v.    ir-iV/-^o  .1./.    IWir/.'s,  50 


does  not  iu  itself  amount  to  proof   of  inula    lo.va,  600;    Granaux   v.    IV.iectrr,  G   Tex.  520; 

£42 


Title  XV,  Chap.  I.]    NEG0TIAt3LE  IXSIRUMENTS  VJ  GENEnAL. 


§3123? 


SpT'ires  V.  Al^cn,  79  IH.  553;  Johnson  v.  ^Vaij, 
27  Oliio  >?t.  374;  Edwards  v,  T/iO>i:a<,  G(i  Mo. 
483;  /'/a;Jj  v.  LiKe.ti/tld,  33  Gratt.  330;  ami 
numerous  other  cases  iu  Daniel  on  Keg.  lust., 
sec.  775. 

Nocice:  See  note  to  preceding  section;  TInw- 
ley  V.  McCredy,  5-4  Cal.  388;  t.ud  see  herein- 
after. 

In  the  ordinary  course  of  business,  that 
is,  according  to  the  usages  aiid  customs  of  cum- 
raercial  transactions:  KtUo'jg  v.  Curtis,  09  Me. 
212. 


Eeforo  its  apparent  niatmity  or  pre- 
Bumptive  dishonor  -witiiout  huowledge, 
Gt3 — The  couiuiissioners  say:  "  This  phrase  is- 
adojited  to  avoid  much  circundocui.on;"  ap- 
parent maturity:  Sec.  3132  et  scq.;  presump- 
tive dislionor:  Sec.  3l.'i3. 

It  is  a  general  principle  of  the  law  of  negoti- 
able iustiuiiicnts  that  a  transferee  v.ho,  pos- 
sessing tlie  otlicr  requisites  of  an  indorsee  in 
due  coarse,  also  receives  the  paper  before  its- 
maturity,  holds  it  free  from  all  defenses  which 
ter.d  to  impeach  its  validity  as  bctv/ucn  antc- 


CoUateral     seairUi/. — Whether      negotiable  cedent  parties.     Thus,  against  such  a  holder 

paper  pledged  as  collateral  security  is  trans-  prior  payment  would  bo  no  defense:  JI on-ill  y. 

ferred  in  the  ordinary  course  of  business  is  a  Morrill,    2(J    Cal.    '2SG;    Schonii    v.   Jloh'jliton, 

question   the  solution  of  which  depends  unou  50  Id.   52S;  Sicail  v,  Vldrke,  51   Id.  '227;  nor, 

liie  circumstances  of  the  transfer.     Thus  the  generally,  would  any  other  defect  in  the  title 

general  rules  as  to  tlio  transfer  of  paper  payaljle  of  antecedent  ]  arties  furni.-j]i  a  defense:   Illm- 

to  order  must  Ije  observed,  for  if  t!ie  note  ij  do-  vwlmana  v.    Iio'alhi'j,   40  Id.    Ill;  i/a'fjLt  v. 

livered  unindorsed,  the  holder  will  acquire  only  jGi/ce,2  Id.  G-i;  Fuller  v,  IIi(tch\nq>i,  10  Id.  523;. 

the  equitable  title:  Daniel  on  Neg.  Inst.,  sees.  Thome,  v.  Yontz,  4  Id.  321;  see  note  to  next 


741  et  scq.  Again,  the  question  arises  whether 
the  holder  receives  the  paper  as  a  mere  agent  of 
the  transferrer,  in  Vv-hich  case,  having  no  inter- 
est ill  tlie  paper  itself,  any  defense  available 
against  the  owner  is  available  against  Lim: 
Co'jhltn  V.  Ma-j,  17  Cal.  515;  see  also  Mi(i/o  v. 
Avery,  13  Id.  300.  But  when  there  is  a  binding 
agreement  for  an  extension  of  time  or  oiher 
present  consideration  passes,  the  transfer  is  in 
due  course  if  there  is  no  other  objection  to  it, 
£Uc]»  as  that  it  is  transferred  after  m;iturity. 
The  test  qicsLion  is,  Has  there  been  a  change 
iu  the  je^al  rights  of  the  parties  to  t'.ic  transfer? 
If  so,  the  liolder,  the  other  requisites  being  ob- 
served, enj-iys  the  iunnunit-.wi  of  a  bona  jide 
indorsee:  Narjhe  v.  Lyman,  14  Id.  430,  per 
Pield,  C.  J.;  Daniel  on  Neg.  Inst.,  sec.  82.3.  _ 

For  a  case  where  peculiar  clrcuinst.'.uces  in- 
troduced another  equitable  circumstance,  see 
Dvprd  V,  loll  d:  Hanson,  10  Cal.  -130;  see 
also  C'irr/l'o  v.  McPhdllps,  bo  Id.  130. 


section. 

On  tiie  other  hand,  there  is  no  principle  of  law 
better  settled  than  that  a  person  who  purchases 
negotiable  paper  aftei"  it  lias  been  uishouored 
or  is  overdue  lakes  it  subject  to  all  the  equities 
which  proiierly  attach  thereto  between  the  an- 
tecede'it  parties:  Coyev.  Pulmfr,  10  Cal.  159j 
Vinton  V.  Crowe,  4  Id.  300  j  1 1  ay  ward  <b 
Co.  V.  Stearns,  39  Id.  58.  One  wiio  takes  after 
a  niati^rity  from  one  of  the  payors  a  note  in- 
dorsed by  the  payee  takes  it  cliarged  with 
notice  of  the  circumstances  of  the  jKiyor's  pos- 
session; See  Templeton  v.  Poole,  50  Id.  2SG. 
The  rule  of  apparent  maturity  embraced  bj'th© 
above  section  and  section  3134,  post,  is  somewhat 
modiiied  as  to  checks  by  section  3255.  sulid.  2. 

Cut  this  principle  is  to  be  taken  with  tha 
very  important  inodillcation  that  a  transferee 
can  generally  get  as  good  a  tillo  as  his  trans- 
ferrer, and  therefore  it  has  l)een  state.l  that  if 
the  party  who  tr.-.nsferrcd  the  instrument  to  the 


Operation  of  lav/. — One  who  comes  into  holder  acquired  the  note  before  maturitj',  and 
jiosscssion  of  the  instrument  in  the  course  of  was  himself  unafiected  by  any  infirmity  in  it, 
legal  proceedings  docs  not  acquire  it  in  the  the  liolder  acquires  as  good  a  title  as  the  trans- 
ordinary  course  of  business:  Lrir/i/s  v.  Merrill,  ferrer,  although  it  were  overdue  and  dishonored 
58  liarlj.  370;  Litchfield  If k  v.  Peck,  20  Conn,  at  the  time  of  the  transfer:  Daniel  on  Xeg. 
384;  Dillin<is  v.  Collins,  44  Me.  271;  Hoberis  v.  Inst.,  sees.  723  a,  7SG,  803;  Bank  of  Sonoma  v. 
Hall,  37  Conn.  205.  Gove,  03  Cal.  355.     In   this   case   it  was   ua- 

Value. — A  pre-existinj  indebtedness  of  the  necessary  to  cx^-ress  an  opinion  on  the  point, 

indorser  to  the  indorsee  ii  tvvaluable  cousidera-  whicli  is  well  established  in  En^LuiJ,  though 

tion  for  the  transfer,  within  the  above  section:  not  uniformly  followed   by   decisions   in    tiie 

Saclceli   V.    Johnson,   54    Cal.    107;    Payne   v.  United    States,    namely:    "That   the   general 

Ben-'<lry,  S  Id.  250;  Pohinson  v.  Smith,    11  Id.  rule,  that  the  purchaser  of  overdue  paper  can 

95;  Naylee  v.  Lyman,  Id.  454;  Frcy  v.  Cl'JTord,  stand  iu  no  better  position  than  histr.msfarrer, 

41  Id.  342;  Davis  v.  liu.-sell,  52  lil.  Gil;  and  does  not  apply  so  far  as  to  invalidate  Ijills  anil 

see  notes  to  Miller  v.  Gettysburg  Ban':,  31  Am.  notes  drawn,  indorsed,  or  accepted  for  accom- 

Dec.  451,  and  Allaire  v.  llartshorne,  47  Id.  182.  modation,  overdue  at  tlie  time  tiiey  are  nego- 

Au  express   agreement  must   be   shown   to  tiated  or  transferred,  it  being  considered  that 

establish  the  fact  that  a  bill  of  exchange  of  parties  to  accommodation  paper  hold  themselves 

either  the  debtor  or  a  third  person  was  taken  out   to  the   public  by   their  signatures  to  be 

by  the  creditor  in  payment  of  a  pre-existing  bound  to  every  person  who  shall  tike  t!ie  same 

debt:  Brown  v.  Olmstead,  50  Cal.  1G2.  for  value,  the  same  as  if  it  were  paid  to  tiiem- 

Less    than  fare  given,  for  note. — "If    tlio  selves.     And  the  fact  that  the  purchaser  knew 

amount  which  the  holder  olTers  to  take  for  a  that  the  paper  was  so  drawn,  indorsed,  or  ac- 

negotiable  instrument  is   totally  insignificant  cepted  for  accommodation  does  not  weaken  his 

as  compared  to  its  face  value,  it  might  be,  under  position:"  Per   McKinstry,  .J.,  LI. ;   Dmiel 

the  circumstances,  implied  notice  that  there  was  Keg.  Inst.,  sec.  720,  cites  English  and  Ameri 


on 

erican 
cases. 

The  doctrine  of  "notice"  and  "maturity" 
therefore  relates  merely  to  the  hnlder's  acquir- 
ing a  better  title  than  his  transferrer,  for  he 


Boinetliing  wrong  about  it:"  Daniel  on   Kc^ 

In:-;t.,   s;c.    777  a;    Johnson  v.  Butler,  31    La. 

Ann.    770;  De  Witt  v.   Perkins,   22  Wis.  473. 

But  purchasing  it  for  less  than  the  face  value, 

and  as  a  sjieculation,  with  the  exercise  of  no     may  generally,  without  such  prerequisites,  rely 

diligence,  will  not  charge  the  purchaser  with     upon  tiie  tiile  of  his  transferrer:  See  facts  ia 

notice:  Schoen  v.  Ilourjhion,  50  Cal.  523.  Ban!;  of  Sonoma  v.  Gove,  03  Cal.  355;  note  to 

&13. 


§§  3124,  3125 


OBLIGATIONS. 


[T)rv.  Ill,  Pa-rt  tV, 


section  HI 22,  ant^;  Folsom  v.  Bartlett,  2  Cal. 
103;  Poorman  v.  JliUs,  39  Id.  3t.j;  Daniel  on 
Ncg.  lust.,  sec.  803,  804;  see  facta  iu  Tkofiie  v. 
YotUz,  4  1(1.  321. 

To  this  rule  there  is  this  exception,  that  if  the 
note  were  invalid  as  between  uiaUcrand  payee, 
the  payee  could  not  himself  by  purchase  from 
a  bona  Jlde  holder  become  a  successor  to  his 


ri^dits:  Tod  v.  rFHc,  36  Ohio  St.  3S7;  Smoytr 
V.  WiiiveU,  9  Allen,  42;  Ko^t  v.  Bender,  25 
Jilich.  51G,  p  r  Cooley,  J.;  see  Boit  v.  White- 
head,  59  Ga.  70. 

Checks  are  an  exception  to  the  rule  of  ' '  after 
maturity:"  Sec.  3253,  subd.  2. 

Demand  and  notice:  See  sec.  31 10,  and 
note. 


3124.    Ilirjlds  of  indorsee  in  due  course. 

Sec.  312-i.  Au  indorsee  of  a  negotiable  instrument,  in  due  cours<3,  acquires 
an  absolate  title  thereto,  so  that  it  is  valid  iu  Lis  hands,  notwithstanding  any 
provision  of  law  making  it  generally  void  or  voidable,  and  notwithstanding  any 
defect  in  the  title  of  the  person  from  whom  he  acquired  it. 

Are   tlioxe   any  d9fen3e3    in  this  state    also  e.xckides  the   other   defenses   which  are 


against  a  holder  in  due  course?  "See  Code 
Oiv.  Proc..  sec.  303;  also  sec.  1459  of  this  code; 
see  also  Vinton  v.  Crowe,  4  Cal.  309.  Tlie 
first  part  of  this  section  is  an  old  rule  as  to 
bills  void  by  the  common  l.iw:  JiocLwIi  v. 
Charles,  2  IIill  (X.  Y.),  409;  Xorrl^v.  Langleij, 
19  N.  II.  423;  Johnson  v.  Meeker,  1  Wis.  430; 
see  Bank  of  Genessee  v.  Patchin  Bank,  19  N.  Y. 
312.  But  it  is  otherwise  as  to  bills  void  by 
statute:  Vallett  v.  Parker,  0  Wend.  G15;  Bock- 
wed  V.  Charles,  2  IIill  (N.  Y. ),  499.  The  rule  is 
established  in  England  by  statute:  "  From  the 
note   of    tlie   commissioners.     It   is   generally 


generally  lield  available  against,  a  bona  Jide 
lioldcr  in  due  course,  and  which  rest  upon  the 
supposition  tliat  no  agreement  ever  existed, 
eitlier — 1.  Cy  reason  of  the  incapacity  to  con- 
sent of  the  party  assuming  to  consent;  as  iiv 
the  case  of  an  infant,  married  v.oman,  lunatic, 
or  j^erson  under  guardianship:  Daniel  on  Neg. 
Inst.,  sec.  800  a;  or,  2.  By  reasoa  of  the  want 
of  consent  of  tlie  party  sought  to  be  bound;  as 
where  the  signature  is  forg-d:  Id.,  sees.  1351 
et  seo.;  or  subsequently  materially  altered: 
Id.,  sec.  1373.  So  if  executed  by  one  acting 
as  agent  of  the  principal,   but  exceeding  his 


held  that  when  the  statute  law  pronounces  the     authority,  the  principal  not  l)eing  in  fault  in 


contract  evidenced  by  tlie  bill  or  note  as  void, 
no  degree  of  currency  in  the  market,  or  of  in- 
nocence or  ignorance  on  the  part  of  the  holder, 
can  impart  validity  to  it.  Thus,  under  an  ex- 
press prohibition  of  a  statute,  a  note  or  bill 
given  for  a  gaming  consideration  would  be  in- 
valid even  ni  the  hands  of  a  bona  Jide  indorsee: 
Jlair/ht  v.  Joi/ce,  2  Cal.  64;  Poonnan  v.  Mills, 
39  Id.  345.  Yet  if  the  note  between  the  par- 
ties, though  otherwise  illegal,  was  not  ex- 
pressly rendered  void  by  statute,  it  is  good  in 
the  hands  of  au  indorsee  in  duo  course:  Id.; 
and  Thome  v.  Yontz,  4  Id.  321;  Fuller  v. 
Hutrhiiigs,  10  Id.  523;  Bockwe.ll  v.  Charles,  2 
Hill  (N.  Y.),  499.  But  when  the  note  was  void 
by  statute,  the  bona  fide  holder  could  of  course 


misleading  innocent  parties  as  to  ihe  extent  of 
the  agent's  authority:  Andover  Bank  v.  Craf- 
ton,  7  N.  li.  298;  Weathered  v.  Smith,  9  Tex, 
022;  The  Floyd  Acceptance,  7  \Vall.  006; 
Fearn  v.  Fldca,  7  Man.  &  G.  514;  or  if  exe- 
cuted under  violent  duress:  Looinis  v.  Bucky 
50  N.  Y.  405;  though  there  ii  some  doubt 
upou  this  point:  Daniel  on  Nog.  Inst.,  sec. 
857;  1  Parsons  on  Notes  and  BiU-i,  270. 

Tide,  indorsements. — Proof  of  the  indorse- 
ment of  a  promissory  note  is  necessary  to  en- 
title it  to  admission  in  evidence,  unless  waived; 
Poormaa  v.  Mills,  35  Cal.  US;  Yuuuris  v.  Bell, 
4  Id.  2J1;  Groijan  v.  Rackle,  1  Id.  158. 

An  agent  who  has  received  a  promissory 
note  I>y  indorsement  holds  the  title  as  against 


recover  against  tlie  indorser  on  his   separate     ail  parties  thereto,  except  the  principal,  ami 


and  independent  contract  warranting  its  valid 
ity:  Daniel  on  Neg.  Inst.,  sec.  807. 

The  language  of  tlie  code  is  very  broad,  and 
Reems  to  cut  oil  all  defenses  on  tlie  part  of  the 
maker  as  against  a  holder  in  due  course. 

Qucere,  whether  the  language  of  this  section 


may  maintain  an  action  t!iereo.i  in  his  own 
name:  Poorman  v.  Mills,  35  Cal.  1 18. 

Non-negoLiable  instruments,  assignments 
of:  Sec.  1459. 

Actions  by  assigneo  or  indorsee:  Se« 
Code  Civ,  Proc,  sec.  308. 


3125.    Instrument  left  blank. 

Sec.  3125.  One  who  makes  himself  a  party  to  an  instrument  intended  to  be 
negotiable,  but  which  is  left  wholly  or  partly  iu  blank,  for  the  purpose  of  lill- 
ing  afterwai'ds,  is  liable  upon  the  instrument  to  an  indorsee  thereof  in  due 
cour.se,  in  whatever  manner  and  at  whatever  time  it  may  be  filled,  so  long  as  it 
remains  negotiable  in  form. 


lostrum^n'jj  in  blanli  are  letters  of  credit. 
"Tlie  iad  Uoement  on  a  blank  note  is  a  letter 
of  credit  fir  an  indefinite  sum:"  Per  Lord  Mans- 
field, in  Bas.-iel  v.  Laiirf4ajfe,  2  Doug.  514. 
"And  this  admirable  statement  of  tlie  law," 
Bays  Mr.  Daniel,  Neg.  Inst.,  sec.  142,  "  isal.iiost 
universally  quoted  with  approval  and  followed 
as  a  prece  Ijut,  applying  equally  to  maker,  ac- 
ceptor, and  drawer  as  to  tlie  iiidorsir:  "  M:i- 
hoiiev.  Central  ILxnk,  17  Ga.  Ill;  Fullcrtoi  v. 
Sturgiss,  4  Ohio  St.  529;  Jonei  v.  Shdbjvilte 


Ins.  Co.,  I  ^letc.  (Ky.)  58;  I-es  v.  Firmera* 
/lank,  2  Allen,  236;  Jlich  v.  SL.irbnck,  51  Ind. 
87;  J/iirdi/  v.  Norton,  GG  Barl).  527;  ./osr/,h^v. 
National,  Dank,  17  Kan.  259;  Snider  v.  Van 
Dor.n,  40  Wis.  602. 

Of  course  the  holder  must  be  bott'i  Ji  le,  hav- 
ing no  notice  that  the  blank  has  bi  en  Idled  up 
in  excess  of  his  autliority  by  th-e  agent  t,f)  whom 
it  was  intrusted  in  blank:  See  cases  cited  supra; 
and  Michigan  Bank  v.  Eldred,  9  Wall.  554; 
Frank  v.    Lilienfeld,  33  Gratt.  335;  Dierks  v. 


544 


Title  XV,  Chap.  I.]    NEGOTIABLE  INSTRUMENTS  IN  GENERAL. 


§3  3133,  3131 


Boherts,  13  S.  C.  338;  Redlich  v.  Doll,  54  N.  Y. 
236;  see  also  Daaiel  on  Neg.  lust.,  sees.  843, 
1405. 

An  alteration  of  a  note  ■which  does  not  vary 
the  meaning  or  nature  of  the  subject-matter  of 
the  contract  is  immaterial:  lliimphreys  v. 
Crane,  5  C'al.  173. 

Where  a  promissory  note  wa3  made  leaving 
■the  rate  <if  iaterest  blank,  and  subsoijucntly 
filled  in  Ijy  the  holder,  lie  cannot,  without  sonic 
evidence  of  aLjreeineut,  recover  more  than  the 


legal  rate;  such  filling  up  of  the  blank  is  not 

such  an  alteration  of  the  note  as  to  vitiate  it 
and  debar  the  holder  from  recovering  the  prin- 
cipal with  legal  interest.  But  if  he  had  trans- 
ferred the  note  thus  filled  up  to  an  innocent 
purchaser,  the  maker  would  have  been  liable  to 
the  amount  of  interest  inserted:  Fmher  v.  Deri' 
nU,  G  Cal.  577,  aiSrmed  in  Visher  v.  Webstei\ 
8  Id.  10.1. 
See  note,  "  Payee  Blank,"  ajile,  sec.  3089, 


ARTICLE  rv. 

PRESENTMENT   FOR    PAT:ilENT. 

S13D.   Effect  of  want  of  demand  on  principal  debtor. 

Sec.  3130.  It  is  not  necessaiy  to  make  a  demand  of  payment  upon  the  prin- 
cipal debtor  in  a  negotiable  instrument  ia  order  to  charge  liim;  but  if  tbe 
instrument  is  by  its  terms  payable  at  a  specified  place,  and  he  is  able  and  will- 
ing to  pay  it  there  at  maturity,  such  ability  and  "willingness  are  equivalent  to  an 
ofTer  of  joayment  upon  his  part. 


Presentment  at  a  particular  place. — The 
contract  of  the  principal  debtor  is  an  absolute 
one  and  does  iioi  depend  upon  a  demand  to  fix 
his  liability:  Zlel  v.  Dulcet,  12  Cal.  479;  Ilal- 
leck  V.  Mom,  21  Id.  278;  Bell  v.  Sackett,  33  Id. 
409;  note,  ante,  sec.  31 IG,  subd.  4.  lb  was 
early  decided  in  this  state,  and  is  now  the 
generrdly  accepted  doctrine  throughout  the 
United  States,  tlie  courts  following  the  opinion 
of  the  majority  of  the  judgss  in  Roice  v.  Young, 
2  Erod.  &  Bing.  103,  that  it  is  not  necessary, 
as  against  the  maker  or  acceptor,  to  aver  or 
prove  presentment  or  demand  of  payment  at 
the  specified  place  where  the  h'\.\\  or  note  is 
made  payable,  in  order  to  maintain  an  action 
against  him.  But  the  only  consequence  of 
neglect  of  the  holder  to  make  such  a  present- 
ment would  be,  "that  if  ready  at  tlie  time  and 
place  M'ith  the  funds,  the  obligor  has  so  far 
satisfied  the  contract  that  he  cannot  lie  respon- 
Biblo  for  any  future  damages,  either  as  costs  of 
suit  or  interest  for  delay:"  Per  Field,  C.  J.,  in 
3Io  itrjonid  1/  V.  Tuft,  II  Cal.  337,  overrnling 
Wild  V.  Vail  Vnlkenhttrg,  7  Id.  1G3;  see  note 
to  North  Bank  v.  Abbot,  25  Am.  Dec.  313;  anl 
Washiinjloit  v.  Plaittrrs'  B  mk,  23  Id.  335. 
"A  further  C(nise(iuence,  indeed,  might  follow 
if  any  lo^js  had  b^en  sustained  by  his  (the  plain- 
tifi''.'i)  failure  t)  pi-esent;  but  this  must  bo  set 
npas  matter  of  defense:"  Per  Tucker,  P.,  in 
A  rnmleud  v.  A  rmistvad,  10  Leigh,  525.     But  in 


such  case  the  maker  or  acceptor  ia  discliarged 
to  tlie  extent  only  of  the  loss  or  injury  sustained: 
Daniel  on  Neg.  Inst.,  sec.  G13;  and  Lnzicr  v. 
Iloran,  55  Iowa,  75,  which  was  a  case  where 
the  maker,  at  the  maturity  of  the  note,  deposited 
tlie  amount  at  tiie  specilicd  bank,  ami  no  pre- 
sentment having  been  maile,  and  the  bank 
having  afterwards  failed,  these  facts  were  held 
to  constitute  a  complete  defense  o:i  tlu  part  of 
tiic  maker  to  an  action  on  the  note.  If  the 
maker  has  funds  in  t'le  bank  and  withlrawa 
them  after  time  of  payment,  tho  holder  ia 
entitled  to  principal  and  interest  against  hiin: 
ni'h  V.  Place,  43  N.  Y.  523. 

Protest  for  noa-payment  of  a  promissory 
noto  is  nob  necessary  to  fix  tho  liability  of  in- 
dorsers.  "A  presentation  of  it  to  tlie  maker 
upon  the  day  of  its  maturity  for  payment,  a 
refusal  by  him  to  jjay  it,  and  notice  t;)  ths 
indorsers  of  such  presentation  and  refusal  are 
sufficient: "  Kellojj  v.  Pacijlc  Box  Faclorij,  57 
Cal.  :^27. 

ProsDntm^nt  not  n33e3sar7  to  chirga 
dra^vcr  in  a  bill  driwu  upon  himsolf:  Seo 
sec.  3155,  po<t,  subd.  .'1,  note. 

Pressntraoiit  of  bill  of  exclian39  for 
aocapt.'uiCQ:  Sees.  3115  ct  seq. 

Prssaatmsn::  of  bill  of  exclians3  for  pay* 
mont:  Sees.  321 1  et  sjij. 

Prcssii'onsnt  i;i  caso  of  acceptaaco  for 
houor:  Sees.  3233,  3207. 


3L31.    P rpucntment ,  hoio  vmde. 

Sec.  3131.  Presentment  of  a  negotiable  instrument  for  payment,  ■u-hen 
necessar}',  must  be  made  as  follows,  as  nearly  as  by  reasonable  diligence  it 
is  practicable: 

1.  The  instrument  must  be  pi'esented  bj'  the  holder; 

2.  The  iustrument  must  be  presented  to  the  princijial  debtor,  if  he  can  be 
found  at  the  place  where  presentment  should  be  made;  and  if  not,  then  it  must 
be  presented  to  some  other  person  having  charge  thereof,  or  employed  therein, 
if  one  can  be  found  there; 

3.  Au  instrument  Avhich  specifies  a  place  for  its  payment  must  bo  presert'^d 
there;  and  if  the  place  specified  includes  more  than  one  house,  then  at  the  place 
of  residence  or  business  of  the  principal  debtor,  if  it  can  be  found  therein, 

Civ.  Code — 35  545 


3131 


OBLIGATIONS. 


[Div.  Ill,  PartIV, 


4.  An  instrument  which  does  not  specify  a  place  for  its  payment  must  be 
presented  at  the  place  of  residence  or  business  of  the  principal  debtor,  or 
wherever  he  may  bo  found,  at  the  option  of  the  presentor;  and, 

5.  The  instrument  must  be  presented  upon  the  day  of  its  maturity,  or,  if 
it  be  paj^able  on  demand,  it  may  be  presented  upon  any  day.  It  must  be  pre- 
sented within  reasonable  hours;  and  if  it  be  payable  at  a  banking  house,  within 
the  usual  banking  hours  of  the  vicinity,  but,  by  the  consent  of  the  person  to 
whom  it  should  be  presented,  it  may  by  presented  at  any  hour  of  the  day; 

6.  If   the  principal   debtor   have  no   place   of  business,  or  if  his  place  of 

business  or  residence  cannot,  with  reasonable  diligence,  be  ascertained,  pre- 

Bentment   for  payment   is   excused.     [Amendment,   approved  March  30,  1874; 

Amendments  1873-4,  203;  took  effect  July  1,  1874.] 

Pr3S3atment  of  bills  of  esoliango  for  ac-  it  was  payable,  it  mi^qlit  have  been  paid  in  le- 
gal-tender notes;  and  it  was  not  competent  for 
either  of  the  parties  to  prove  by  ])arol  that  it 
was  understood  and  agreed  that  it  should  be 
paid  citlier  in  gold  or  silver.  *  *  *  They 
were  authorized  to  demand  paj'nient  according 
to  the  tenor  of  the  draft,  isnd  not  otherwise; 
and  if  the  demand  was  limited  to  gold  coinj  it 
was  not  sufficient  to  hold  the  drawer.  *  *  • 
A  demand  of  this  character  by  t!ie  notary  wa3 
not  more  effectual  to  chargii  t!ie  drawer  than  a 
similar  demand  by  the  plaintiff: "  P<;r  Crockett, 
J.,  i;i  Lawienherjpr  v.  Kroejcr,  4S  Cal.  147. 

Subd.  1.  Holdsr  to  malie  prcssnt- 
ment — To  whoin  payable. —\7here  the  in- 
strument is  payable  specially  to  a  particular 
person,  but  delivered  by  him  without  indorse- 
ment to  an  agent  to  receive  the  payment,  such 
agent  may  present  the  instrument  for  iiayinent, 
and  payment  to  him  will  be  valid:  Doubleday 
V.  Krexs,  GO  Barb.  193;  see  CoIp.  v.  Jcssup,  10 
N.  Y.  96.  It  is  well  settled  that  the  authority 
of  an  agent  or  notary  to  demand  payment  need 
not  be  in  writing:  Shed  v.  Brett,  11  Am.  Dec. 
200;  Sussex  Bank  v.  Bcddtvia,  17  N.  J.  L.  487; 
Ilaiijord  Bank  v.  Sfedman,  3  Conn.  489;  Bank 
of  Utlca  V.  Smith,  18  Johns.  230;  Williams  v. 
Matthews,  18  Cow.  252. 

When  the  holder  is  dead,  demand  should  be 
made  by  his  personal  representative:  Daniel 
on  Neg.  Inst.,  sec.  578;  1  Parsons  on  Notes  and 
Bills,  300;  Story  on  Prom.  Notes,  sec.  219;  but 
if  there  is  no  personal  representative  at  the 
time,  presentment  and  demand  witliin  a  rea- 
sonable time  after  his  appointment  will  be  suf- 
ficient to  charge  subsequent  parties,  although 
presentment  and  demraid  were  not  made  at 
maturity:    White  v.  Stoddard,  1 1  (Jray,  523. 

Subd.  2.  Pressatrasni  to  vyhom — Clerk. 
"There  is  no  doubt  that  a  clerk  found  at  the 
counting-room  of  the  acceptor  or  pnuiisoria 
a  competent  party  for  presentment  for  pay- 
ment to  be  made  to,  without  showing  any 
special  authority  given  him:"  Staiahack  v. 
Bank  of  rinjiaia,  11  Gratt.  2G0;  Draper  v. 
Clemons,  4  Mo.  52;  Stewart  v.  Eden,  2  Cai. 
121;  Bradley  v.  Northern  Bank,  CO  Ala.  259; 
Daniel  on  Neg.  Inst.,  sec.  588.  But  a  simple 
statement  in  a  protest  that  the  paper  was  pre- 
sented "  at  the  ofQce  of  the  makers,"  without 
showing  from  whom  the  demanil  was  made, 
and  that  he  was  an  authorized  agent,  will  be 
insatHcient:  Nave  v.  Richardson,  33  Mo.  130. 

Partnership. — Where  a  partnership  firm  is 
the  principal  debtor,  a  jiresentment  to  any  one 
of  the  members  of  the  iirm  is  suflicient:  Shed' 
V.  Brett,  11  Am.  Dec.  209;    Branch  of  Statt 


cepl;an30:  See  sees.  3185  et  seq. 

PrsscntraGnt  of  bills  of  ezoliange  for  pay- 
ment: Soe  sees.  3211  ct  seq. 

Eill3  of  esohange,  -where  payable:  See  sec. 
3173. 

R3a3oa:\ble  diligenoe:  See  notes  to  sees. 
3155,  ?,1\?,;  and  sec.  3153,  and  note. 

Liability  of  indorser  and  drawer. — "In 
:  respect  to  the  indorser  of  a  bill  or  note,  or  the 
"drawer  of  a  bill  payable  at  a  particular  bank  or 
'■other  place,  the  rule  isdifferent  [from  tliat  stated 
in  the  above  note].  He  is  not  the  original  debtor, 
'Ijutonly  a  surety.    His  undertakingis  not  gcn- 

■  eral,  but  conditional  upon  due  diligence  l)cing 
iused  against  the  principal  debtor,  and  such  dili- 
.gence  requires  presentment  at  the  place  specified, 

where  it  is  to  be  presumed  that  funds  have  been 

;  provided  to  meet  the  bill  or  note  at  maturity:" 

Daniel  on  Neg.  Inst.,  sec.  G14;  note,  an'e,  sec. 

■  311G,  subd.  4;  Bank  U.  S.  v.  S^aith,  1 1  Wheat. 
171;  Coxv.  Nat.  Bank,  100  U.  S.  712;  Law- 

■•rencew  Dobyns,  30  Mo.  193;  Ferner  v.  Will- 
■iams,  37   Barb.   9;   Story  on  Notes,  sec.  230; 

'  Ch.  Bills,  mth  Am.  ed.,  409. 

"If  the  holder  declines  to  accept  payment 
•when  it  is  tendered  on  a  proper  demand,  the 
liabilit}'  of  the  drawer  ceases,  for  the  reason 
tlir.t  his  iindertakiug  -was  that  the  c'aeck  would 
be  paid  when  payment  should  be  lirst  demanded 
in  due  form  and  within  the  proper  time;  but  he 

•  does  not  undertake  that  it  wiil  be  paid  on  a 
second  demand,  when  payment  has  been  ten- 

•  dered  and  refused  on  a  prior  demand  made  in 
due  form  and  within  the  proper  time:"  Per 

'Crockett,  J.,  in  Simpson  v.  Pacijic  M.  L.  Ins. 

■Co  ,  44  Cal.  130,  141. 

In  a  case  where  a  draft  payable  generally  in 
money  was  written  across  by  an  unauthorized 
stranger,  with  the  words  "payable  in  United 
States  gold  coin,"  it  was  held  to  be  not  such  an 

..alteration  as  would  vitiate  t!ie  draft.     It  was 

■found  l)y  the  court  below  that  the  plaintiffs  de- 
manded payment  in  gold  coin,  and  when  it  was 
refused,  d^divered  the  draft  to  a  notary.  And 
the  court  in  effect  also  found  that  the  demand 
by  the  notary  was  for  gold  coin.  There  was 
no  evidence  tending  to  prove  that  when  the 
plaintiffs  presented  the  draft  for  payment,  and 

•demanded  gold,  they  had  any  notice  or  infor- 
mation that  the  words  across  the  face  of  the 
draft  were  written  without  the  authority  of  the 
drawer.     Nevertheless,  "in  order  to  Iiold  the 

•drawer  it  was  incumbent  on  the  plaintiffs  to 
make  a  proper  demand  of  payment,  and  to 
give  due  notice  of  non-payment.     As  the  draft 

•jBpecilied  no  particular  kind  of  money  in  whicU 


546 


Title  XV,  Chap.  I.]    NEGOTIABLE  INSTRUMENTS  IN  GENERAL. 


§  3131 


Bank  V.  McLernn,  'JG  Iowa,  30G;  Ericin  v. 
JJowiiK,  15  N.  Y.  373;  even  after  dissolution, 
for  the  liability  atill  cuntiuues:  Iluhhard  v. 
Malllvws,  54  LI.  59;  Fourth  Nut.  Binh  v. 
Ue)Ui'-hiLk,  52  Mo.  207;  ('ronieij  v.  Barr//,  4 
Gill,  rj4;  Co.'il.er  v.  ThniiiOMOii,  10  Ala.  717; 
Hunter  V.  Ilempdtad,  13  Am.  D.  c.  4GS,  note 
470.  A  dcuumd  ou  the  ;  gynt  of  one  partner  after 
dissoli-.tioii,  the  other  ]iarcncrbiiin;4  ab  :ent,  held 
Bufnoifn::  Uroini  v.  Tarwr,  15  Ala.  832. 

V7hoa  principal  dobior  is  doad. — "If  the 
acce[)tur  or  maker  be  dead  at  the  time  of  the 
mat'iiity  of  the  bill  or  note,  it  should  be  pre- 
sented to  his  personal  representative,  if  one  be 
appointed,  and  his  place  of  residence  can  by 
reasonable  inquiries  be  ascertained:"  Daniel 
on  Ncg.  Inst.,  sec.  591;  (lower  v.  Moore,  25 
Me.  IG;  Price  v.  Youmj,  1  Nott  &  M.  43S;  Story 
o;i  I'loni.  Notes,  sees.  211-253;  2ila:iruder  v. 
Union  Hunk,  3  Pet.  87;  Juniata  Hank  v.  Ilule, 
16  Serg.  &  R.  107;  Groth  wGyjer,  31  Pa.  St. 
271;  Bond  V.  City  Sav.  Bank,  15  Gi'att.  501. 
And  if  there  be  no  executor  or  administrator, 
or  he  or  his  place  of  lesidence  caiinot  be  found, 
the  preuentmeut  should  be  made  at  the  last 
residence  of  the  deceased :^*Story  on  Prom. 
Notes,  sec.  241;  cases  supra;  Ch.  Bills,  Stlx 
ed.,  e.  0,  pp.  389,  401. 

Cltaae  V.  Evoij,  40  (Jal.  467,  as  reported,  and 
the  syllabus,  which  readsj  "If  the  maker  of 
Bucii  note  [pay.able  thiity  days  after  demand] 
dies  before  demand  of  payment  is  made,  a  pre- 
sentation of  the  note  to  his  administrator  for 
allowance  as  a  claim  against  the  estate  is  not  a 
demand  of  payment, "are  somewhat  startling 
in  view  of  the  authorities  cited  above.  But  an 
examlu.-tion  of  the  transcript,  and  the  points 
and  authorities  of  counsel  in  this  case,  show 
that  the  cpiestion  before  the  court  was  one  of 

E leading,  whether  a  demand  of  payment  l]ad 
ecu  suliieiently  averred  in  the  complaint. 

The  payee  and  legal  owner  of  a  note,  not 
the  Kjuitable  owner,  must  present  the  same  for 
allowance  to  tlie  payor's  administrator:  Alamh 
V.  JJoole;/,  52  Cal.  232. 

liiHJolvcnoy  does  not  remove  the  necessity 
of  presenting  for  payment.  In  such  case  "  the 
de;;:and  nuiy  and  should  be  made  upon  the 
bankrupt  or  insolvent  personally,  or  at  his 
domicile  or  place  of  business,  in  the  same  way 
or  manner  as  if  he  were  not  bankrupt  or  insol- 
vent: Ch.  Bills,  Sth  cd.,  c.  9,  pp.  380,  388; 
Col/ins  v.  Bntlfr,  2  Stra.  1087;  Howe.  v.  Boices, 
10  East,  112;  Orofon  v.  JJallhelm,  0  Greenl. 
470;  Shaivv.  Reed,  12  Pick.  132:"  Story  on 
Proiii.  Notes,  sec.  241. 

Subd.  3:  See  note,  first  part  of  this  section. 

PI  cco  of  residence  or  business. — In  an 
action  iipon  a  draft  upon  N.  F.  Mills,  "care  of 
M.  S.  &Co.,  No.  114  South  Main  St., St.  Louis, 
Mo.,"  the  notarial  certificate  stated  that  the 
notary  presented  it  "at  the  place  of  buyiuess 
of  N.  F.  Mills,  St.  Louis,  to  tiie  ])ersoii  in 
charge  thereof."  It  appeared  that  N.  F.  Mdls 
liad  two  places  of  business  in  St.  Louis,  one  of 
whicli  was  No.  114;  and  it  was  Iield  that  the 
certified  presentment  was  insuliieient  to  show 
duo  diligence,  to  charge  the  indorsers:  Brooks 
V.  IIi;il>i/,  11  Hun,  230.  But  if  actually  pre- 
Bented  to  tiie  drawers,  thongii  not  at  the  place 
of  payment,  and  protested  at  the  place  where 
presented,  it  is  sullieient:  Mw^on  v.  Franklin, 
3  Johns.  202;  Bo<d  v.  Frniliht,  I.I.  207. 

Payable  at  any  one  of  several  banks. — A 
note  or  accepted  bill  payable  at  any  one  of  sev- 


eral banks  gives  a  choice  to  the  payee  or  bolder, 
and  a  presentment  at  any  one  of  the  banks 
enumerated  or  included  by  the  terms  of  the 
instrument  is  surtieicnt:  North  Bank  v.  Abbot, 
25  Am.  Dec.  334,  note  340;  Faije  v.  Wvh^trr,  15 
M  .  219;  Fre.cmnn'' s  Bank  v.  ]iurk7nan,  10  Graft. 
12G;  Brlcblt  v.  Spaldin(j,  33  Vt.  109;  /hnf  v. 
Corr,  54  Ala.  113;  Jackson  v.  Packer,  13  Conn. 
342. 

Subd.  4.  Place  of  date  prima  facie  plaoo 
of  payment. — Althoug!i  there  's  no  other  placu 
of  payment  named,  dating  a  note  at  a  particu- 
lar place  does  not  necessarily  make  it  payaldo 
at  the  place  of  date;  for  parol  evidence  is  al- 
lowed tii  show  an  agreement  between  tiio 
makers  and  indorsers  that  the  note  ?ha!l  ho 
payable  at  a  ]iarticular  |)lace:  Pirr.e  v.  Wliit- 
ney,  29  Me.  188;  Cox  v.  NntionnI  Bank,  100  U. 
S.'713;  Brent's  Fxrs  v.  Bank  of  the  Metrojio/is, 
1  Pet.  92;  State  Bank  v.  Hard,  12  Mass.  171; 
Meyer  v.  Hibsher,  47  N.  Y.  205. 

The  i)laee  of  date  is  jirima  facie  evidence 
that  such  place  is  the  maker's  place  of  business 
and  residence;  and  it  is  sulBcient  to  charge  an 
indoiser,  in  the  opinion  of  Mr.  Daniel,  Neg. 
Inst.,  sec.  040,  to  have  the  note  in  that  place 
at  the  time  of  maturity,  and  to  make  j):o[ier 
inquiry  after  the  place  ot  the  maker's  residence 
or  place  of  l)usiness,  provided  that  the  holder 
does  not  know  tliat  ids  residence  is  elsewhere: 
See  BriLtoii  v.  Nlrcolls,  104  U.  S.  757;  Meyer 
V.  Ilih^hcr,  47  N.  Y.  270;  Apper-<on  v.  Bynum, 
5  Coluw.  348;  Staylor  v.  Williams,  24  Md.  109; 
Moodie  v.  Morrail,  3  Const.  307;  Steieart  v. 
E  ten,  2  Cai.  121;  but  see  A pp/'rson  v.  Prltrh- 
ard,  9  Ileisk.  793,  and  1  Parsons  ou  Notes  and 
Bills,  45S;  see  also  note  to  Oalpia  v.  llunl,  15 
Am.  Dec.  G43;  sec.  3100,  ante. 

Subd.  5.  Day  of  its  maturity. — If  the 
presentment  bo  made  before  the  biil  or  note  is 
<lue,  when  it  lias  a  certain  time  to  run,  it  is  en- 
tirely premature  and  nugatory,  and,  so  far  as 
it  affects  t!ie  drawer  or  iudorser,  a  perfect 
nullity:  Griffin  v.  Goff,  12  Johns.  423;  J.'ckxon, 
Newton,  8  Watts,  401;  Salter  v.  Burt,  20 
Wend.  205;  Mechanics'  Bank  v.  Merchants* 
Bank,  G  Met.  13. 

If  presented  after  maturity,  there  being  no 
sutficient  legal  excuse  for  the  delay,  it  v.'iU,  of 
course,  be  of  no  avail,  as  the  drawer  and  imlors- 
ers  will  have  been  already  discharged:  Mont- 
(jornery  Bank  v.  AV>any  (M/y  Bank,  8  Barb. 
390;  S.  C,  7  N.  Y.  459;  IViiidam  Bank  v.  Nor- 
ton, 22  Conn.  213. 

The  evidence  of  the  promptness  of  the  pre- 
sentment or  of  the  excuse  for  the  delay  must 
be  distinct  and  clear,  since  the  burden  of  proof 
is  borne  by  the  plaintiff:  h'obinson  v.  Ulen,  20 
Me.  109;  Pendleton  v.  Knickei-bocker  Life  Ins. 
Co.,1  Fe<l.  Rep.  109-171. 

See  SCO.  3132,  infra. 

Payable  on  demand:  See  sees.  3134,  3133, 
infni,  and  !iotes. 

Reasonable  hours. — What  are  reasonable 
hours  will  depend  on  the  (piestion  whether  or 
not  the  l)ill  or  note  is  iiayable  at  a  bank  or  })!ace 
where,  by  the  establiihed  nsageof  traile,  business 
transactions  are  limitcil  to  certain  stated  houia. 
If  there  are  such  stated  hours,  the  presentment 
must  be  made  within  them.  But  if  the  demand 
is  made  at  the  maker's  or  acceptor's  place  of 
business,  then  it  nnist  be  within  the  usual  busi- 
ness hours  of  the  eitj'  or  town;  if  at  bis  resi- 
dence, then  wiihin  those  hours  when  the  maker 
or  acceptor  may  be  presumed  to  be  in  a  condi" 


547 


§§  3132-3134 


OBLIGATIONS. 


[Div.  Ill,  Vat.t  TV, 


tion  to  attend  to  business:  2IcFnrland  v. 
Pico,  8  Cal.  G2(5.  And  lie  is  in  condition  to 
attend  to  business  thi'ough  t!ie  wliolo  day 
until  the  hours  of  rest  in  tlie  evcniiit;;  Cai/iii/ii 
County  Bank  v.  Hunt,  2  Hill  (N.  Y.),  ()3J; 
S^t/t  JSpriiir/.i  A'at.  Bank  v.  Burtoti,  oS  N.  Y. 
432;  SLelioa  v.  DanaLc:!,  92  111.  49;  Farnsvjorth 


of  no  avail:  Dana  v.  Sanyer,  22  Me.  294  (mid- 
ni,'/l)i). 

Sul3d.  6.  Non-resident. — This  subdivision 
was  added  to  thirf  section  by  the  amendment  of 
1874:  See  note  to  subd.  4,  nuj>ra.  Uu<ler  this 
section  presentment  and  demand  ii]ion  a  non- 
resident   joint    maker   of    a    promisory    /lote, 


V.  Allen,  4  Graj',  453  (nine  o'clock,  and  payor  whose  nr.nie  was  signed  by  an  attorney  in  f;ict, 
gone  to  bed;  presentment  held  sufUcient).  is  not  necessary  to  charge  an  indorser:  Liming 
If  made  durinji;  the  hours  of  rest,  it  will   be     v.  Wine,  G4  Cal.  410. 

S132.   Apparent  mafurilif,  iclien. 

Sec.  3132.  The  apparent  maturity  of  a  negotiable  instrument  payable  at  a 
particular  time  is  the  day  on  which,  by  its  terms,  it  becomes  due,  or  when  that 
is  a  holiday,  the  next  business  day. 


Days  of  grace. — In  those  states  where  grace 
is  allowed,  ami  the  last  day  (»f  f;race  falls  upon 
a  holiday,  presentation  may  be  made  on  the 
day  preceding  tlie  holiday:  Daniel  on  Neg.  Inst., 
sec.  ti27.  But  even  in  sucli  states,  if  a  Ijill  or 
note  without  grace,  or  any  iion-conimercial  in- 
strument for  the  payment  of  money,  falls  due 
upon  a  Sunday  or  a  legal  iioliday,  it  is  not  jiay- 
able  until  the  next  regular  bm iness  day :  Id.; 
ISiiltcr  V.  Burl,  '20  Wend.  205;  Knutz  v.  Tom- 
pd,  48  Mo.  75;  Barrett  v.  A  lieu,  10  Ohio,  426. 

Therefore  the  rule  of  the  text,  since  no 
days  of  grace  are  allowed  in  this  state,  sec. 
3181,  post,  is  entirely  consistent  with  the  gen- 
eral law. 


after  dishonor  and  notice  thereof:  McFarland 
V.  Pico,  8  Cal.  G2G,  per  Field,  J. ;  Daris  v.  Bp- 
pingn\  18  Id.  379.  In  several  other  states  the 
rule  is  that  he  may  be  sued  as  soon  as  notice  is 
served:  S/n-d  v.  Brett,  11  Am.  Dec.,  note  217; 
Daniel  on  Neg.  Inst.,  sec.  1212. 

Maturity  of  renewed  note. — An  indorse- 
ment on  a  note,  "I  hereby  renew  the  within 
note,  and  promise  to  pay  tiie  same  within  two 
years  from  this  date,  the  object  being  to  pre- 
vent a  bar  within  tlie  next  two  years,"  and 
date,  extends  the  time  of  payment  two  years, 
and  suit  before  that  time  is  premature:  Koutz 
v.  Van  die/,  55  Cal.  345. 

Payment  by  tliird  person  extinguishes 


TLiG  payor  has  the  whole  of  the  last  day  note. — Where  a  third  person,  at  the  r<.  (juest  of 

on  whicli  his  note  falls  due  in  which  to  pay  it,  the  maker,  pays  the  note  held  by  a  collector, 

and  a  suit  commenced  for  its  recovery  on  tliat  it  is  extinguished,  and  cannot  be  treated  tliere- 

day  is  premature:   W'i/combe  v.  Dodije,  3  Cal.  after  as  a  purchase.      The  obligati(m  to  pay 

2j0;  Daniel  on  Neg.  Inst.,  sec.  1235;   Taylor  w.  being  discharged,  a  subsequent  transfer  cannot 

Jacobij,  45  Am.  Dec.  G15;  likewise  in  case  of  an  revive  it:  Moniv  v.  Al>hnj,  G3  Cal.  GGj  see,  gen- 

indorscr,  who  cannot  be  sued  until  the  next  day  erally,  sec.  31G4,  and  note,  post. 

8133.    PreHumpiife  dishonor  of  bill,  payable  aflrr  sight. 

Sec.  3133.  A  bill  of  exchange,  payable  at  a  certain  time  after  sight,  which 
is  not  accepted  within  ten  days  after  its  date,  in  addition  to  the  time  which 
would  suffice  with  ordinary  diligence  to  forward  it  for  acceptance,  is  j^resumed 
to  have  been  dishonored. 


Presumption  of  dishonor. — Tlie  code  com- 
sioacrs  say:  "  it  is  very  desirable  tliat  the  term 
at  t!ie  cud  of  which  a  bill  may  lie  presumed  to 
be  (lishonored  should  be  fixed.  The  decisions 
are  conilictiug  and  unsatisfactory."  Tlie  text- 
writers  and  adjudicated  cases  agree  in  asserting 
that  a  bid  payable  at  sight,  or  at  a  lixud  time 
aftcr  siglit,  or  on  demund,  and  a  note  jiayable 
on  demand,  must,  ia  urdcr  to  l)ind  tlie  drawer 
and  indorsers,  be  presented  within  a  "reason- 
al/lc  time:"  Daniel  on  Neg.  Inst.,  sec.  G04.  It 
was  said  by  Chief  Justice  S!iaw,  in  Sparer  v. 
Liiicohi,  21  Pick.  207,  that  "it  depends  upon 
6)  many  ciix'umstances  to  determine  wliat  is  a 
iea:;onablc  time  in  a  particular  case,  lliat  one 
decision  goes  but  little  way  in  establishing  a 
preeeileut  for  anotiier,"  In  dealings  witli  ne- 
gotiable paper,  "these  couriers  without  lug- 
gage," it  is  of  prime  importance  that  the  par- 

3134.    Appnrcul  Dinhirifi/  of  bill  pnyabh'  at  sight. 

Sec  3134.     The  apparent  maturity  of  a  bill  of  exchange,  payable  at  sight  or 
on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  ten  daj's  after  its  date,  in  addition  to  the  time 
which  would  suffice,  with  ordinary  diligence,  to  forward  it  for  acceptance. 

548 


ties  thereto  should  be  enabled  to  estimate  their 
rights  ami  duties  with  all  the  certainty  prac- 
ticable. The  rule  of  the  text,  without  i-eing 
open  to  the  objection  tliat  it  is  too  rijid  to  con- 
form itself  to  the  vaiying  eircumstance.i  of  dif- 
ferent cases,  for  it  includes  the  element  of 
ordinary  dij'gence,  is  worthy  of  much  piaise, 
since  it  avoids  that  pitfall  of  uncertainty,  the 
piirase  "  I'easonable  diiigence,"  and  tlie  mass 
of  conflicting  authorities — precedents,  yet  not 
precedents — which  encompass  it.  If  not  pre- 
sented within  the  time  m-ntioned,  the  drav.ers 
and  indorsers  are  exonerated:  Sec.  3189,  post. 
Prior  to  tho  codD,  the  reasonable  time  in 
whieli  a  sight  bill  was  presumed  to  have  been 
dishonored  was  a  question  of  law:  Poonnaa  v. 
Mills,  39  Cal.  345;  Uimmdmann  v.  JJoiuling, 
40  Id.  ill. 


TiTLii  XV,  Chap.  I.]    NEGOTIABLE  INSTRUMENTS  IN  GENERAL. 


§§  3135-3137 


i>i  ppr.rcnt  matnnty  cf  bills  cf  excha-'ge.     and  inJorsers:  Id.     Rule  modified  in  case  of 
ere  <K  !ay  in  pi-es(  ntiiieiit  doess  not  exonerate:     c!i°cks:  Sec.  323."!,  po  t. 


Merc  <K  'ay  in  p 

Sec.  ?>'2\\,2^oifL     I'rcseiitmuiit  not  niaac  witliin         t>ee  I'lote.'^sor  Fomeroy's  comment  on  * 

the  time,  aud  not  excused,  exonerates  drawer     cut  maturity,"  in  4  West  Coast  Rep,  4. 

3135.    Apparent  maturity  of  note. 

Si  c.  3135.     The  apparent  maturity  of  a  promissoiy  note,  payable  at  sight  or 
on  deinaud,  is: 

1,  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  six  mouths  after  its  date. 


Subd.  1. — "In  the  abseaco  of  this  pro- 
vision, it  would  be  douhtfiii  wlietlier  ;i,  demand 
rote  lje;uin;X  i"tcrest  lias  any  ' apparent  matu- 
rity,' uules;i  it  was  known  to  be  dis'.ionored: 
Sve  M^rrlt  v.  Todd,  2:?  N.  Y.  2S;  Bro^Jcs  v. 
Mitrhr/J,  !)  Mee.  &  W.  15;  IVeihei/  v.  Andrew.-^, 
o  Iliil  (N.  Y.),  582;  compare  Skf.  v.  Caiiiiinf/- 
hatii,  I  Cow.  397;   Lo6te  v.  Uuiikiii,  7  Johns. 


70:"  Note  of  Commissioner!?.  Section  .3214, 
post,  ap.ilies  al^^o  to  promissory  notes:  See  see. 
3247,  post;  and  note,  suhd.  1,  sec.  lM'M,x>ipra. 

Subd.  2. — Presentment  not  made  -wicliia 
tlie  time,  and  not  excused,  exonerates  the  in- 
dorsers:  Sec.  32!S,  /lOsl. 

Apparent  maturity:  See  Professor  Pome- 
roy'a  article  reierred  to  iu  note  above. 


3136.  Same. 

Sec.  313G.  Where  a  promissory  note  is  payable  at  a  certain  time  after  sight 
or  demand,  such  time  is  to  be  added  to  the  periods  mentioned  in  the  laut 
section, 

3137.  Surrender  of  instrument,  when  condition  of  payment. 

Slc.  3137.  A  i^art}'  to  a  negotiable  instrument  may  require,  as  a  condition 
concurrent  to  its  payment  by  him: 

1.  Ihat  the  instrument  be  surrendered  to  him,  unless  it  is  lost  or  destroyed, 
or  the  holder  has  other  claims  upon  it;  or, 

2.  If  the  holder  has  a  right  to  retain  the  instrument  and  does  retain  it,  then 
that  a  receipt  for  the  amount  paid,  or  an  exoneration  of  the  jiarty  payiug,  be 
written  thereon;  or, 

3.  If  the  instrument  is  lost  or  destroyed,  then  that  the  holder  give  to  him  a 
bond,  executed  b}-  himself  and  two  sufficient  sureties,  to  indemnify  him  against 
any  lawful  claim  thereon. 


Subd.  1.   Surrender  of  tha  instrument, 

the  party  payiii.t;  is  cntiLleil  to:  Wilder  v.  Seeli/i', 
8  Barb.  40S;  lluiinurd  v.  Uobiiison,  7  Barn.  & 
Cress.  CO. 

Ilie  surrender  of  a  note  is  prima  fade  evi- 
dence <  f  its  payment:  Smith  v.  JIarpcr,  5  Cal. 
330;  but  see  Daniel  on  Neg.  Inst.,  sec.  120(5  a. 
"Where  tlie  holder  of  a  note  accepts  a  draft  or 
check  in  payment,  it  has  usually  been  held  that 
lie  is  not  bound  to  give  up  the  note  before  pay- 
ment of  the  draft  or  check,  and  if  he  does  so, 
the  indiirsersare  discharged  thereby:"  Smith  v, 
JIi'r/)i-r,  Kupra. 

But  if  a  iiromissory  note  is  surrendered  up 
by  mistake,  under  the  sn[>position  tliat  it  is 
fully  paid,  tlie  defendant  i.i  still  1  able  for  the 
balauci!  due:   lidukK  v.  Mar.-'hal',  IW  Cal.  223. 

Holder  having  other  clnims.— Wiiere  a 
prolcoted  foreign  bill,  al'tt^r  b^ang  returned,  has 


See  also  Daniel  on  Ncg.  Inst.,  sec.  1482. 

Another  instance  where  a  bond  of  indemnity 
has  ijccn  held  nimecessary  is  where  the  [  aper, 
even  though  negotiable,  is  pa^'able  to  order  and 
unindorsed,  or  has  been  speeialiy  indorsed  and 
not  afterwards  transferred:  Daniel  on  Neg. 
Inst.,  sec.  1434;  for  no  one  can  become  an  in- 
dorsee iu  due  cour.'se. 

Again,  if  the  instrument  has  been  traced  into 
tlie  defendants  custotly,  indenniity  is  lielil  un- 
necessary: Daniel  on  Neg.  In.st.,  sec.  14S3;  2 
Pars.ais  on  Notes  and  Biils,  21)3. 

And  when  it  is  shown  that  the  defendant  is 
protected  by  the  statute  of  luintations  against 
futui-e  liability:  Daniel  on  Neg.  Inst.,  sec.  )4S5. 

The  v.due  <>f  tliis  rule  requiring  the  pai-ty 
claiming  p.iyment  to  hiaiself  to  iiideninify  the 
parties  fro. a  whoai  payment  i.!i  demanded  fi'iun 
future  cl.iinis  in  this  respect  was  early  r.cog- 


been  sent  back  to  the  place  of  payment,  and     nized  in  this  state.     The  rule  was  adopted  iu 


partial  payments  are  made  by  the  acceptor,  a 
tendir  of  the  bal.mco  due  upon  the  face  of  the 
bill  is  (bfective  if  aceomjianied  by  the  condi- 
tion that  the  bid  be  delivered  up  witliont  a;i 
ofl'erto  pay  damages.  Tlie  holders  are  entitled 
to  letain  tiie  bill  to  enforce  tiieir  claim  fordain- 
nges  against  the  proper  jiarty:  llanioux  v. 
La/iciis.'.i  Sandf.  213;  see  Daniel  on  Neg.  Inst., 
6ic.  14.'>5. 
Subd.  3. — Lost  or  destroyed  instrument 


Welton  V.  Adams  d;Co.,  4  Cal.  37. 

And  as  to  recognizing  any  distinction  be- 
tween the  loss  and  destruction  of  the  paper  as 
ailccting  the  tjucstiou  uf  indemnit}-,  the  decis- 
iiius  in  tliis  state  are  against  it:  li'e.'ion  v. 
Adam-f  d-  Co.,  4  Cal.  37;  J'audof/'h  v.  /I'arriK, 
23  Id.  5dl.  Ill  the  latter  case  it  is  held  tliat  a 
tender  of  a  bond  of  indenniiry  as  a  condition 
preceilent  to  any  right  of  actioa  ujjon  a  lost  or 
destroyed  note  is  not  necessary;  the  plaiutiff 


549 


§§3141,3142 


OBLIGATIONS. 


Piv.  Ill,  Part  17, 


may  sue  and  offer  in  his  complaint  to  give  such 
iudoninity  as  tlie  court  may  judge  reasonable, 
but   uuloss   tender   be   made   iu  advance,  the 


plaintiff  will  not  be  entitled  to  costs:  See  also 
Price,  V.  Daidap,  5  Id,  483,  and  Castro  v.  Wet' 
more.,  IG  Id.  371). 


AKTICLE  V. 

DISHONOR    OF   NEGOTIABLE   INSTRUMENTa. 

31^1.    Dishonor,  what. 

Src.  3141.  A  negotiable  instrument  is  dishonored  wlien  it  is  either  not  paid, 
or  not  accepted,  according  to  its  tenor,  on  presentment  for  that  purpose,  or 
without  presentment,  where  that  is  excused. 

Dishonor. — In  case  of  a  presentment  for  ac-     on  Neg.  Inst.,  sec.  589;  Story  on  Bills,  sec.  350: 


ceptauce,  if  the  drawee  does  not  happen  to  be 
present  at  his  house  or  counting-room  when  the 
holder  calls  for  the  purpose  of  presenting  the 
bill  for  acceptance,  the  holder  need  not  consider 
it  dishonored,  but  may  wait  a  reasonable  time 
for  tlie  return  of  the  drawee,  who  has  as  yet  in- 
curred no  obligation  respecting  the  bill,  and 
may  indeed  be  ignorant  of  its  existence.  The 
holder  may  even  wait  until  the  next  day  to  re- 
new his  call  to  present  for  acceptance:  Daniel 


Bank  of  ViasluiKjton  v.  Triplett,  1  Pet.  25; 
Mitchell  V.  De  Grand,  1  Mason,  17G;  sec.  31SG, 
post. 

But  no  such  delay  in  taking  proceedings  for 
dishonor  is  allowable  in  case  of  presentment 
for  payment:  Id. 

Dishonor  of  biU  by  non-acceptance:  Sees. 
3187,  31SS,  3194. 

Damages  allowed  on  di^onor  of  foreiga 
bills  of  eschange:  See  seca.  3234-3238. 


3142.    Notice,  by  whom  given. 

Sec.  3142.     Notice  of  the  dishonor  of  a  negotiable  instrument  may  be  given: 

1.  By  a  holder  thereof;  or, 

2.  By  any  party  to  the  instrument  who  might  be  compelled  to  j^ay  it  to  the 
holder,  and  who  would,  upon  taking  it  up,  have  a  right  to  reimbursement  from 
the  \iVLxty  to  whom  the  notice  is  given. 

Snbd.  1.  Notice  by  tlie  holder.— It  is  A  hank  or  other  agent  of  coUection  should,  as 
not  absolutely  necessary,  in  order  that  a  party  a  matter  of  duty,  give  the  notice  necessary: 
to  tlie  instrument  sliould  be  liable  to  tlie  Ogilen  v.  D>hhin,  2  Hall,  112;  Free/nan's 
bolder,  that  he  should  receive  notice  directly  Bank  v.  Perkins,  18  Me.  292;  Bank  of  the  State 
from  the  holder.  Thus,  if  the  lioldcr  duly  noti- 
fies the  sixth  indorser,  and  he  the  lifth,  and  so 
on  up  to  the  iirst,  tlie  last  one  notified  will  be 
liable  to  all  the  subsequent  parties:  Hilton  v. 
Shcperd,  G  East,  14;  Swayze  v.  BriUon,  17  Kan. 
627;  see  Bachellor  v.  Prtst,  12  Pick,  40G;  Ba)ik 
U.  S.  V.  Goddard,  5  j\Iason,  5GG;  Rens'haw  v. 
Triplett,  23  Mo.  213;  Story  on  Prom.  Notes, 
Bcc.  301;  Story  on  Bills,  see.  304;  1  Parsons 
on  Notes  and  Bills,  sec.  503,  504;  Thompson 
on  Bills,  357;  Edwards  on  Bills,  C26,  G27. 

Stranger.— It  is  certain  that  notice  from  a 
mere  stranger  is  nugatory.  Therefore  a  drawee 
who  has  not  accepted,  and  is  therefore  a 
stranger  to  the  bill,  cannot  give  notice:  C'ha- 
noiiie  v.  Fow.'cr,  3  Wend.  173;  Staiitonv.  Blos- 
som, 14  Mass.  UG;  Juniata  Bank  v.  Hale,  IG 
Serg.  &  R.,  157;  Brailsford  v.  Williams,  15 
Md.   150. 

But  a:,y  holder  lawfully  in  possession  may 
give  notice:  Bank  U.  S.  v.  Z;ai;w,2  Hill  (N.  Y.), 
451;  Me^id  V.  Bugs,  5  Cow.  303;  Oaden  v.  Doh- 
li„,  2  Hall,  112. 

Agent. — Notice  may  be  given  by  an  agent: 
Walker  v.  Bank  of  ^State  of  New  York,  *d  N. 
Y.  58-';  see  Min'nrn  v.  Fi.-^her,  7  Gal.  573; 
and  Gillespie  v.  Neville,  14  Id.  408. 

A  notani  to  whom  the  bill  or  note  has  been 
delivered  for  tlie  purpose  of  presentment  may 
give  the  recjuisite  notice  of  disiionor:  Smedes  v. 
Utica  Bank,  20  Johns.  372;  S.  C,  3  Cow.  GG2; 
Safford  v.  Wyckoff,  1  lli.l  (N.  Y.),  11;  Con-per- 
tkwaite  V.  Shejjiefd,  I  Sandf.  410;  Cruvfrd  v. 
Branch  Bank,  7  Ala.  205;  Shed  v.  Brett.  I  Pick. 
401;  Fulton  V.  McCrarken,  IS  Md.  528:  /.'enick 
V.  Robbins,  28  Mo.  330;  S  wuic  v.  Brltlon,  17 
iian.  029. 


of  Mo.  v.  Vaughn,  3o  Mo.  90.  A  verbal  au- 
thority is  sutHcient:  Cowperthwaite  v.  Sheffield, 
1  Sandf.  41G. 

If  the  holder  he  dead,  his  personal  represent- 
ative should  give  the  notice;  but  if  none  be  ap- 
pointed at  the  time  of  maturity,  the  indorser 
will  not  bo  discharged  if  notice  be  sent  iiim  in 
a  reasonable  time  after  an  appointment  is  made: 
White  \.  Stoddard,  11  Gray,  38;  1  Parsons  on 
Notes  and  Bills,  444,  559;  2  Daniel  on  Neg. 
Inst.,  sec.  994. 

Subd  2.  By  any  party. — The  rule  as 
stated  iu  the  text  seems  to  be  the  one  generally 
accepted.  An  attem2)t  has  been  made  to  limit 
the  rule  to  cases  wliere  the  parties  giving  notice 
have  themselves  been  duly  uotilied  and  their 
liability  thus  fixed:  Bay  ley  on  Bills,  c.  7.  sec. 
2,  p.  254,  cited  with  approval  by  Story  on 
Notes,  sec.  303.  This  limitation  appears  to 
meet  with  the  approval  of  Mr.  Daniel,  Neg. 
Inst.,  sec.  988,  wlio  says:  "And  the  proper 
limitation  to  tlie  rule  seems  to  lie  that  ho  must 
be  a  party  whose  liability  is  fixed;  or  one  who, 
on  the  paper  being  returned  to  him  when  he 
pa^'s  it,  will  be  entitled  to  reimbursement  from 
some  prior  party:  Baylej'  on  Bills,  254,  25G; 
see  also  Chanoine  v.  F>wler,  3  Wend.  173;" 
Lysa'jht  v.  Bryant,  9  C  B.  46;  Harrison  v. 
Buscoe,  15  ]\Iee.  &  W.  231.  Mr.  Wude.  No- 
tice, sees.  705  et  seq.,  is  decidedly  opposed  to 
this  limitation,  on  the  ground  of  lioth  theory 
and  authority.  But  the  authorative  Eiglish 
case  upon  which  lie  basfS  his  argument  es- 
tablishes a  principle  which,  however  uiiphilo- 
sophical,  Mr.  Daniels,  Neg.  Inst.,  sec.  990, 
admits  as  a  quasi  exception,  namely,  that  an 
acceptor  who  lias  refused  or  failed  to  pay  the 


.'ijO 


I'lTt.E  XT'.  Chap.  I.j    NEGOTIABLE  KfSTRtJMRNTS  IN  GENERAL. 


§§3113,3144 


instrument  may  give  notice  to  prior  parties:  as  where,  heitig  a   tlrawer,  he   has  refuserl   to 

Chapman  v.  Kcene,  3  Ad.  &  El.  103,  per  Lord  accept  (see  note,  "Stranger,"  siipi-a),  or  where 

Denmaii,   who,  overruling  T'nulal  v.    Brown,  1  he  haj  been  discharged  from  any  possible  or 

T.  R.  1G7,  asserted  the  rule  that  "  the  party  contingent  liability  by  laches,  he  camiot  give 


entitled  as  hokler  to  sue  upon  the  bill,  may 
avail  himself  of  notice  given  in  due  time  by 
any  party  to  it: "  See  Braihford  v.  Williams, 
15  Md.  Vol. 

There  are  cases  which  hold  that  even  the 
maker  may  give  notice:  First  Nat.  Bank  v. 
Syer.son.  23  Iowa,  50S;  Glasgow  v,  Fratte,  8  Mo. 
336;  Wade  on  Notice,  sec.  713. 

If  tlie  party  giving  the  notice  have  at  the 
time  no  knowledge  that  his  liability  is  estab- 
lished by  a  dishonor  in  proper  form,  yet  if  it 
is  so  in  fact,  the  notice  is  not  vitiated:  Jennings 
V.  Roberts,  2i  L.  J.  Q.  B.  102;  Thompson  on 
Bills,  358. 

Of  course,  if  a  person  is  no  longer  a  party  to 
the  instrument,  but  has  become  a  mere  stranger, 

3143.    Form  of  notice. 

Sec.  3143.  A  notice  of  dishonor  may  be  given  in  any  form  wliic]!  describes 
the  instrument  with  reasonable  certainty,  and  substantially  informs  the  party 
receiving  it  that  the  instrument  lias  been  dishonored. 

rorm  of  notice. — The  notice  may  be  given 
verl-aily:  Firce  v.  Sliaden,  55  Cal.  406.  But 
mere  knowledge  of  the  dishonor  does  not  con- 
stitute notice:  Juniata  Bank  v.  Hale,  10  Serg. 
&  R.  157;  Bank  of  Old  Dominion  v.  JllcVeirfh, 
29  Gratt.  5.30;  S.  C,  20  Id.  852;  Story  on  Bills, 
sec.  375. 


notice:  Daniel  on  Neg.  Inst.,  sec.  9SS;  llarrx 
son  V.  liuscoe,  15  L.  J.  Exch.  110;  Turner  v. 
Leech,  4  Barn.  &  Aid.  451;  Rowe  v.  7"ipper,  13 
C.  B.  240;  Thompson  on  Bills,  358;  see  Wade 
on  Notice,  sec.  705.  See  also,  upon  the  ques- 
tion of  who  may  give  notice,  Riddle  v.  Jhuide- 
vllle,  5  Crancli,  322;  Crocker  v.  Getchell,  '2'.\  ile. 
392;  Glasgow  v.  Fratte,  8  Mo.  239;  Glascock  v. 
Bank  of  lyissouri.  Id.  443;  Batchellor  v.  Friestt 
12  Pick.  300. 

Protest  of  bill  of  ezohange:  See  post,  sec. 
3225. 

Notice  of  protest:  See  sec.  3231,  po'<t. 

Notice  of  dislioaor  to  acceptor  fgr  honor: 
See  sees.  3200,  3207. 


Though  no  particular  form  of  notice  is  neces- 
sary, yet  in  onler  tliat  it  should  duly  intimate 
dishonor  to  the  drawer  or  indorser,  it  should, 
"either  expressly  or  by  just  and  natural  impli- 
cation, coiiii)rise  tiie  lullowing  elements:  1.  A 
Eufiicient  description  of  the  bill  or  note  to 
ascertain  its  iilentity;  2.  That  it  has  been  duly 
presented  for  acceptance  or  payment  to  the 
drawer,  acce^itor,  or  maker;  3.  That  it  has 
been  dishunorcd  by  non-acceptance  or  non- 
payment; 4.  That  tlie  holder  looks  to  the 
party  notified  for  payment:"  Daniel  on  Neg. 
Inst.,  sec.  073. 

A  notice  by  the  holder  that  he  "  had  de- 
manded j)aymeut  of  that  note  "  implies  tliat 
payment  was  demanded  of  the  person  liable  to 
jiay,  to  wit,  the  maker.  And  the  declaration 
that  he  intended  to  look  to  the  defendant,  the 
indorser,  imiilies  the  fact  of  non-payment. 
And  if  it  appear  that  the  indorser,  at  the  time 
of  receiving  the  notice,  knew  what  particular 
l)iece  of  paper  was  referred  to,  and  could  not 
have   been  prejudiced   by  a  failure  to  describe 

3144.    Notice,  how  served. 

Slc.  314-4.     A  notice  of  dishonor  may  be  given : 

1.  By  delivering  it  to  the  party  to  be  charged,  personally,  at  any  place;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the  place  of  residence  or 
business  of  such  party,  apparently  acting  for  him;  or, 

3.  By  properly  folding  the  notice,  directing  it  to  the  party  to  be  charged,  at 
his  place  of  residence,  according  to  the  best  information  that  the  person  giving 
the  notice  can  obtain,  depositing  it  in  the  post-oCice  most  conveniently  accessi- 
ble from  the  place  where  the  presentment  was  made,  and  paying  the  postage 
thereon. 

Subd.  1.  Personal  service  requisite,  same  city  or  town,  the  general  rule  nnquestion- 
^wlaeu. — Where  the  party  to  give  notice  of  dis-  ably  is  that  the  notice,  either  verbal  or  in 
honor  and  the  party  to  receive  it  reside  in  the     writing,  must  be  served  personally,  or  written-, 

551 


it,  tlie  notice  will  be  sufficient,  even  though  it 
was  verbal,  and  the  note  neither  protluccil  nor 
described:  Thompsori  v.  WiUlams,  14  Cal.  100; 
see  McFarlund  v.  Fico,  8  Id.  020;  E^i.4man  v. 
'J'urman,  24  Id.  370;  Stoughlon  v.  Swan,  4  Id. 
2]. 3. 

Where  a  notice,  sufficient  in  other  respects, 
did  not  indicate  from  whom  it  proceeded,  but 
in  a  sul)sequent  conversation  with  an  agent  of 
the  holder  the  indorser  was  informed  who  the 
liolder  was,  it  was  held  that  tlie  two  notices 
could  not  be  combined  and  thus  form  a  good  and 
effectual  notice:  Klockenbanm  v.  Fierson,  16 
Cal.  375,  per  Field,  J.  Although  the  notice 
should  indicate  from  whom  it  proceeds,  it  need 
not  state  wiio  is  holder  of  tlie  bill  or  note,  nor 
at  whose  request  it  is  given:  Alills  v.  Bank  U. 
S.,  11  Wiieat.  431;  Brndley  v.  Davis,  26  Me, 
45;  Jfowe  v.  Bradlnj,  10  Id.  35;  Shed  v.  Brett, 
I  Pick.  401.  Notice  was  held  not  sufficient 
when  the  demand  was  stated  therein  to  iiava 
been  made  on  a  day  subsequent  to  maturity: 
Tevis  V.  Wood,  5  Cal.  303. 

Under  this  section,  a  notice  of  the  jirotest  of 
a  note  for  non-pa3'inent  would  be  a  sufhcient, 
notice  of  dishonor:  Kellogg  v.  Facijic  Box  Fac- 
tory, 57  Cal.  327,  330. 

Notice  of  dishonor  of  forejga  bills  of 
exch-Jige;  Sec.  3225. 


§3144 


OBLIGAXrONS. 


[Div.  Ill,  Part  iV, 


notice  must  be  left  at  the  resilience  or  place  of 
l)usiiie.-:s  of  the  party:  Va^  ce  v.  ('ol  ins,  G  Cal. 
43">;  Vt'drox  v.  McNu't,  82  Am.  Dec.  304; 
Stephenson  v.  Primroi^e,  33  Id.  "251;  CnrtU  v. 
Siate.  Bank,  33  Id.  143;  Bowlintj  v.  Harrison, 
6  How.  248;  John  v.  City  jJa/.k,  02  Ala. 
629;  34  Am.  Rep.  35;  Cafi^^  Bank  v.  )r«rHf-r, 
10  Allen,  o'2-2;  NeviUHr.  Bank  of  Lnnsimjhunjh, 
lO  Mk;;!.  o47;  Daniel  on  Keg.  lust.,  sec.  10J5; 
note  to  Bank  of  Coliim.hla  v.  Lain-fuce,  1  Am. 
Lead.  Cas.,  5tu  ed.,  403.  Lut  if  the  par:;y 
iictually  receives  the  notice  deposited  in  the 
posfc-Diiice  as  soon  as  lie  would  if  personady 
Ecrved,  it  ia  sufficient:  IJijslop  v.  Jones,  3 
iticL''a:i,  00;  Cabot  Bank  v.  IVarner,  10  Allen, 
i,22;  Haitcheslfr  Batik  v.  Fellow--^,  2S  N.  H. 
SJ2. 

Service  hi/  letter-carriers. — It  is  a  well -settled 
limitation  of  the  above  rule  that  in  those  eiiies 
and  toiv..3  where  a  "penny-post"  or  letter- 
carrier  system  prevails,  notice  of  dishonor  rn:'.y 
Le  served,  n])on  persons  rcsidiuLj  ia  the  same 
town,  h},-  mail:  Dohrvr  v.  Ea<ticood,  3  Car.  &  P. 
2o0;  Bed  v.  Ilaijerston-n  Bank,  7  Gdi,  21G; 
Wal'crs  V.  Broini,  15  Md.  2S3;  Shoemnker  v. 
Mechanioi'  Bank,  59  Pa.  St.  I'd;  PaLon  v. 
Lent,  4  Ducr,  231;  Daniel  on  Neg.  Inst.,  sec. 
1C03. 

A  nnther  exreption  exi'<fx  where  a  usage  of  a 
bank  is  cl.arly  sliown  to  give  notice  of  dislionor, 
even  to  persons  livin.!^  in  the  same  town,  tlirou^h 
the  p;ist-ollice,  in  which  case  the  iadors'T  or 
drawer  of  paper  held  by  such  baidi  wid  be 
bound,  if  the  notice  is  tluly  deposited  in  the 
pOot-o.iicc,  whether  ho  receives  it  or  not:  Mi'''i 
V.  Bank  r<J  U.  S.,  11  Wlieat.  4:;i;  Bank  of  U . 
S.  \  2>'oncoo<l,  1  liar.  &  J.  423;  Chicoj>ee  Bank 
V.  Eaifr,  9  Met.  533;  Carolina  B'.ink  v.  Wal- 
lace, l.{  S.  C.  347;  S.  C,  33  Am.  IIcp.  G94. 

Soc  tlic  (jucstiou  of  per:sou:d  notice  discii^^cd 
at  lenglii  in  Random  v.  Mack,  3S  Am.  Dec.  CU2, 
note  UJ7. 

Subd.  2.  At  residance  or  placo  of  busi- 
ness.— TIic  indorscr  or  drawer  should  be 
Bought  at  hii  place  of  busi:iess  during  business 
hours,  and  if  lie  is  not  there,  notice  may  be  left 
with  his  clerk:  Edson  v.  Jacobs,  14  La.  494; 
private  secretary:  Mei-z  v.  Kal^cr,  20  La.  Ann. 
377;  or  person  in  charge:  Lord  v.  Ap;>l'ton,  15 
Me.  270;  Mirc.  Bank  v.  McCarthy,  7  Mo.  Ap;i. 
318;  Slcjdien-'ion  v.  Primrose,  33  Am.  Dec. 
2S1. 

If  the  holder  or  his  messenger  finds  no  one 
in  attv'udance  at  the  indorser's  place  of  busi- 
ness during  business  hours,  the  place  being 
closed,  he  ii  not  required  to  leave  any  written 
notice;  and  it  is  held  that  in  such  casD  no 
fiirlher  attempt  need  be  made  to  serve  notice, 
either  pe'-snnrdly  or  otherwise:  Crosse  v.  Smith, 
1  Man.  &  Scl.  5-15;  Allen  v.  Edmonson,  2  Car. 
&  K.  547:  John  v.  City  Xal.  Bank,  G2  Ala. 
629;  S.  C,  34  Am.  Rep.  35;  Stephenson  v. 
Prlmro-e.  a.l  Am.  Dec.  231. 

Rasiilsuoa — -The  notice,  in  order  to  bind 
the  iuilorser  iu  case  it  does  not  reacli  him, 
must  be  left  with  some  ono  of  suilicient  discre- 
tion to  tak'!  care  of  it:  Bank  of  Kentucky  v. 
Duncan,  4  Bush,  297;  Fisher  v.  Evans,  5  Binn. 
5-11. 

Verbal  notice  left  with  his  wife  is  good: 
Ii'on.ttiio  V.  ('iiume,  G  L.  J.  E.xch.  1 10.  Leaving 
l!iL-  n  'tice  with  some  person  iuant!iority  attlie 
bo.irding-liouse  or  hotel  wliere  lie  resides  is 
h' Id  suliiciout:  MrMnriie  v.  Jons,  3  Wash. 
.20 J;  Dane  v.  Kimble,  19  Pick.   112;   Bradley 


V.  DavU,  2r>  Me.  45.  So,  notice  left  with  a  fel- 
low boardi-r,  v.ith  a  request  to  deliver  it  to 
him:  UniLd  States  v.  liotch,  G  Pet.  250.  iso, 
if  left  in  his  room  during  a  temporary  absence: 
Grah'im  v,  Langston,  1  Md.  50. 

Where  a  nota,ry  saw  a  boy  iu  the  f.-ontyard, 
who  told  him  be  was  the  indorser's  son,  gave 
him  the  notice,  told  Li:n  to  deliver  it  to  Ida 
father,  and  saw  him  start  toward  the  houje,  it 
was  held  not  proof  of  suilicient  notice:  Adams 
v.  Wivjht.  14  Wis.  403;  see,  farther,  extensive 
note  to  Banaum  v.  Mack,  33  Am.  Dec.  G14:- 
GIG. 

The  notarial  certiScate  stating  notice  to  have 
been  served  "by  delivering  saivl  letter  at  his 
place  of  business,  to  a  p..  rsou  of  discretion  hav- 
ing charge  thereof,"  is  a  sutiicicntly  explicit  de- 
scription of  the  mode  of  service,  and  is  there- 
fore coinpeteat  and  relevant  evidence  for  the 
plain.iil' in  ti'.e  action:  Kello<jij  v.  Pacific  Box 
Faetory,  57  Cal.  327,  330. 

S^bd.  3.  fcjee  note,  subd.  1,  supra;  sec. 
314vS.  i.fra. 

Due  diiisen:;©  should  be  used  in  ascertain- 
ing the  r'iside:ice  of  tLe  party  to  be  notiiied: 
Viyers  v.  Carlon,  33  Am.  Dec.  575,  and  note 
57G;  Bank  of  Utlca  \.  Bender,  34  Id.  23 1,  and 
note  234;  Loicery  v.  Scot',  35  Id.  G27.  and  note 
C23;  sec  numcrouo  citati'ins  in  note  to  B^Mes  on 
Bills,  .'^.S,  7th  Am.  e;i.;  see  also  noic  yost, 
see.  3155,  subd.  1. 

Direo'cad  to  party'o  residence. — The  no- 
tice should  be  directed  to  the  post-olfice  at  or 
nearest  to  the  party's  place  of  residence,  r^nless 
ho  is  accnjtomed  to  receive  his  lettcis  at 
atiOther  post-oliicc,  in  which  case  it  sliould  i)e 
directed  lliere:  Bank  oj' Columbia  v.  Lairrmce, 
1  Pet.  532;  Bank  of  Geneva  v.  Ilowbtt,  4  Wend. 
323;  Mercer  v.  Lancaster,  5  Pa.  St.  IGD;  see 
note  to  Neio  Orleans  C.  «t  B.  Co.  v.  Brlyfjs,  43 
Am.  Dee.  225,  22G.  If  he  lives  in  one  place 
and  h  vs  his  place  of  business  in  anoth'^r,  notice 
may  be  sent  to  cither  place:  Brink  of  17.  S.  v, 
Carneal,  2  Pet.  54;l;  Cuyb-r  v.  Ncl^is,  4  Wind. 
393;  lleid  v.  Payne,  IG  Johns.  213;  Montyom' 
ery  Co.  Bank  v.  Marsh,  7  N.  Y.  431. 

If  the  place  be  Ids  actual  residence,  it  need 
not  be  his  domicile:  Yonnfjv.  JJnrjin,  15(5ray, 
2G4;  see  Daniel  on  Neg.  In^t.,  sec.  1022;  1  Par- 
sons on  Notes  and  Bills,  498. 

General  illusLrations.— The  following  pro- 
test was  held  not  to  diiclosc  suilicient  service 
of  notice:  "I  do  certify  tiiat  ou  the  srcond 
day  of  November,  a.  d.  1375,  notice  in  wi  it  ng 
of  protest,  demand,  and  non-payment  of  the 
above-mentioned  note  was  served  upon  John 
Sweeney,  the  indorser  of  said  note,  in  the  city 
of  San  Francisco,  by  letter  addressed  to  him, 
and  by  personally  delivering  the  same,  at  bis 
reputetl  place  of  business.  No.  775  .Market 
street,  in  this  city,  ha  being  altsent  from  his 
place  of  business,  by  direction  of  saitl  holders:" 
Jle)idy  V.  Desmond,  G2  Cal.  2ti0. 

The  following  averment  of  presentment,  de- 
Tnand,  refusal,  and  notice  wa.s  held  suilicient 
in  Fisk  v.  Miller,  G3  Cal.  .307:  "That  said  note 
at  maturity  was  presented  to  said  (teorge  iM. 
A.  Hr.rker  for  payment,  and  payment  thereof 
demande  I,  but  the  same  was  not  paid,  of  all 
which  due  notice  was  given  to  said  ilefeudant 
Thomas  S.  Miller." 

IJocary's  protest  as  evidence:  See  cases 
supra,  and  i'ol.  Code,  sec.  795. 

Forcisa  bills  of  ex:;li3ugc,  notice  of  dts^ 
honor,  how  given;  See  see.  bl'ol. 


Title  XV,  Chap.  I.]    NEG0T1AEL2  1K3TRU:»IENTS  IN  GENERAL 


§3  3145-3147 


3145.    Xolice,  how  served  after  indors'T's  death. 

Sec.  3145.  In  case  of  the  deatli  of  a,  party  to  whom  notice  of  dishonor  should 
otherwise  be  f^iven,  the  notice  must  be  given  to  one  of  his  personal  representa- 
tives; cr,  if  there  are  none,  then  to  any  member  of  his  family  who  resided  with 
him  at  his  death;  or,  if  there  is  none,  then  it  must  be  mailed  to  his  last  place 
of  resicence,  as  prescribed  by  subdivision  three  of  the  last  section. 


The  commissioners  say  that  this  section  is 
"moclilied  Irom  .Story  on  Notes,  sec.  SIO,  in 
which  it  is  taiil  liiat  notice  should  be  I.  ft  at 
Ih-'  dotiiicilc  of  the  deceased.  Tiiis  would  oft-jii 
fad  t.j  reach  his  representatives;  more  often 
than  under  the.  rule  above  given.  As  to  giving 
notice  to  ('Ue  of  decedent's  personal  let  reseiila- 
tivcs.  sec  0 rental  Dank  v.  Blake,  22  Pick.  200," 
which  decides  tliat  an  adiniuistiator,  duly  an- 


Hill,  2?,Q;  Maxpero  v.  Pedesdaux,  22  La.  Ann« 
227;  1  Parsons  on  Notes  and  Lids,  'M-2;  Daniel 
on  Neg.  Inst.,  sees.  1003,  1050. 

Oil''  of  sp.rcral  per.'ional  rrpretiea'ativi'ft,  noticu 
to,  sutlicient:  Bealls  v.  Peck,  12  Barb.  24.'r, 
Lf'tfis  V.  Bakcii-ell,  G  La.  Ann.  ?,od;  CaroU.ca 
N.  B.   v.    V/al'aco,  Pj  S.  C.  .'j'47. 

To  member  cf  family.— This  is  additional 
to  tlie  general  liw  upon  thin  sul^ject,  it  being 


pointed  at  the  t;mc  of   the  maturity  of   the     generally   sufficient,  if   there    be   no   personal 
paper,  is  entitled  to  notice  of  the  dishonor.  rcprcocutative,  to  Lave  or  send  notice  to  the 

Vf'hcre  the  death  was  recent,  and  no  admin 


istratcr  had  qualified,  a  notice  addressed  to 
the  "  Lgal  representative"  was  deennd  sutli- 
cient :  Loi/d^s  A  dm^r  v.  Cily  Sa v.  Bank,  15  C  ratt. 
501;  Pillow  V.  J/ardeman,  3  Humph.  5^8;  S. 
C. ,  39  Am.  Dtc.  105;  but  addressed  to  "the 
estate,"  iusullicient,  as  this  would  include  as 
well  ihc  lierr  at,  law:  Cayuija  Bank  v.  D'-nnett, 
5  Hill,  230;  Mass.  Bank  v.  Oliver,  10  Cush. 
557.  And  if  he  has  qualiiied,  and  his  name 
can  bo  ascertained,  addressing  '.im  Ity  his  legal 
tide  as  "cxecntcr"  or  "adaiLnistrator,"  etc., 
will  be  insuliicient:  Smalley  v.  Wriyht,  40  N. 
J.  L.  471.  In  all  these  cases,  if  the  notice  is 
actually  received  wiihin  a  rea.'jonable  time  it 
will   be  sufiicicnt:  Cayuga  Bank  v.  Bennett,  5 


family  residence  of  the  decedent:  I'auiel  on 
Neg.  Ins..,  see.  1001;  see  remarks  of  comuds- 
sioners  at  head  of  this  note. 

Notice  left  at  the  residence  v.ith  decedent's 
son-in  law  held  sullicient  to  ch-.rge  the  estutrt: 
Vt\av-r  V.  Penii.  27  La.  Ann.  123. 

Ma:'.led  to  his  place  cf  re.sidence:  See 
Liddrrman  v.  Oiddin,  34  Pa.  St.  5-i;  Stewart  v. 
Eden,  2  Cai.  121;  Goodnow  v.  Warrrn,  122 
MaiS.  82.  It  may  be  left  at  the  fanily  resi- 
dence: Merchants^  Bank  v.  Birch,  !7  .Johns.  25; 
see  also  note,  subd.  3,  sec.  3114,  ■■^■sijira, 
"Diligence  Requisite  to  Ascertain  Residence;" 
and  SCO  Plnnfcru'  Bank  v.  ]Vhet)\  3;J  Ain. 
Dec.  335;  Pillow  v.  Ilardeman,  30  Id.  195, 
and  note  190,  197. 


8146.  Notice  given  in  ignorance  of  death,  valid. 

Sec.  3140,  A  notice  of  dishonor  sent  to  a  party  after  his  death,  but  in  igno- 
rance thereof,  and  in  good  faith,  is  valid. 

G'POd  foitli,  i.e.,  "could  not  by  ordinary  death:"  z?ar7?e.'?  v.  7?P7/7!.o?(?s,  4  IIow.  (?,Iiss.)  114; 
diligence  have  ascertained  the  fact  of  the  party's    Maspero  v.  PedesdauXy  22  IjH.  Ann.  227. 

8147.  Notice,  vhen  (a  be  given. 

Sec.  3147.  Notice  of  dishonor,  when  given  by  the  holder  of  an  instrument 
or  his  agent  otherwise  than  by  mail,  must  be  given  on  the  day  of  dishonor,  or 
on  the  next  business  day  thereafter. 

Notice  must  not  be  premature. — The  no- 
tice impl  ts  lljj  fact  of  dishonor,  and  if  given 
before  actual  dishonor,  is  not  validated  by  the 
fact  tliat  the  instrument  is  afterwards  in  fact 
dishonored:  Too'haler  v.  Cornwall,  3  Cal.  114; 
Jarks  n  V.  nihnrds,  2  Cai.  343;  Cli.  Bais, 
*4S2,  544-;  Daniel  on  Neg.  Inst.,  sec.  1035. 

No  ice  iniy  bo  rivea  immcciiaialy  after 
pressatnien;  and  n  fusal  to  accept  or  pay.  It 
is  not  neees.saiy  to  wait  until  the  close  of 
business  hours:  JlrFarland  v.  Pico,  8  Cal.  G2G. 
Til  is  ii  WQli  settled :  Daniel  on  Neg.  In.st.,  sec. 
10.30;  see  aL-o  Kcyen  v.  Fenslerinaker,  24  Cal. 
329. 

Not  necessary  to  give  notice  on  day  of 
dishoncr. — 'i'he  rule  of  tlie  text  is  well  seitl  d. 
The  hiiiler  has  until  the  expiration  of  the  fol- 
lownig  (hiy  to  give  notice:  McFar/and  v.  Pico, 
8  (.'al.  (i2G.  As  in  the  case  of  demand,  notice 
may  lie  given  at  the  party's  residence  at  any 


hours:  Jameaon  v.  Swinton.  2  Taunt.  224;  Bay- 
ley  on  Bdls,  I7G;  Adinii  v.  Wrhiht,  14  Wis.  408; 
Cayiija  Co.  Bank  v.  II ant,  2  lidi  (N.  Y. ),  G35; 
Parker  v.  Gordon,  7  Last,  3y5;  Story  on  Bills, 
sec.  200;  D.inijl  on  Neg.  Inst  ,  see.  1038;  see 
note  ante,  sec.  3131,  subd.  5,  "Reasonable 
Hours;"  see  also  Thompson  v.  Williams,  14 
Cal.  IGO.  The  rule  applies  to  notes  on  demand 
as  well  as  to  paper  payable  o;i  a  jiarticular  day: 
Kej/ca  V.  Fenst-rjnaker,  24  1 1.  329. 

Hegal  holidays  and  relijious  h  didays,  upon 
which  a  man  is  forbidilen  by  his  religion  to 
transact  secular  business,  are  not  co;;nted  ia 
coiuputing  the  time  within  which  notice  musb 
be  given:  Daniel  on  Neg.  Inst.,  sec.  1043; 
Cuyler  v.  Stephens,  4  Wend.  5GG;  Lindo  v. 
U'iswolh,  2  Campb.  G02;  Mar:in  v.  Iiniirsoll,  8 
Pick.  1;  Iloictrd  v.  /ves,  1  Hill  (X.  Y.),  2G3; 
Friend  v.  Wilkinson,  9  Gratt.  31.  But  notice  is 
not  invalid    because   given   on    the   fourth   of 

time  before  the  hours  of  rest,  but  it  must  be     July  or  other  holiday:  Dtblieax  v.  Ballard,  36 

served  at  the  place  of  business  during  business     Am.  Dec.  084. 

553 


§§3148-3155  OBLIGATIONS.  [Div.  Ill,  Ta&tIV, 

8148.  Notice  of  disJwnor,  when  to  be  mailed. 

Sec.  3148.  When  notice  of  dishonor  is  given  by  mail,  it  must  he  deposited  in 
the  post-office  in  time  for  the  first  mail  which  closes  after  noon  of  the  first  busi- 
ness day  succeeding  the  dishonor,  and  which  leaves  the  place  where  the  instru- 
ment was  dishonored  for  the  place  to  which  the  notice  should  be  sent. 

Mailing  notice   of  dislionor. — Uailer  tlie     tance  to  havo  a  (Icriuito  rulu  than  that  it  should 
above  seciioti,  the  holder  haa  at  kast  the  whjle     be  abstractly  ennsidtretl   the   most  jast  which 
forenoon  of  tlie  first  bubiiiess  clay  afier  the  dis-     couhl   be  clevised:    See  Daniel  on  Neg.  lust., 
Jionor  to  send  uS  the  notice.     And  it  certainly     sees.  lOo'J,  lOil. 
is,  as  the  commissioners  say,  of  more  inipor- 

8149.  Notice,  how  given  by  agent. 

Sec.  3149.  When  the  holder  of  a  negotiable  instrument  at  the  time  of  its 
dishonor  is  a  mere  agent  for  the  owner,  it  is  sufficient  for  him  to  give  notice  to 
his  principal  in  the  same  manner  as  to  an  indorser,  and  his  principal  may  give 
notice  to  any  other  party  to  be  charged,  as  if  he  were  himself  an  indorser.  And 
if  an  agent  of  the  owner  employs  a  subagent,  it  is  sufficient  for  each  successive 
agent  or  subagent  to  give  notice  in  like  manner  to  his  own  principal. 

Time  allowed  to  agent. —A  bank  or  banker  5  IMason,  3G6;  Church  v.  Barluiv,  9  Pick.  547; 
with  whom  the  jjaper  lias  been  dej^osited  for  Tunno  v.  Lague,  1  Am.  Dec.  141;  Farmers^ 
the  pm-pose  of  i)resentment  for  acceptance  or  Bau/c  of  Urkl'/eport  v.Vail,  21  N.  Y.  4S3;  Dan- 
payment,  or  any  other  agent  for  collection,  has     icl  on  Ne^;.  Inst.,  sec.  992. 

the  same  time  to  notify  the  principal  as  an  or-  Tlie  same  rule  applies  to  the  several  branches' 
dinary  holder  Las  to  notify  the  drawer  and  in-  of  the  same  bank:  Clode  v.  Baylcij,  12  Mcc.  & 
dorsers:  Sees.  3147,  3148;  Friend  v.  WULinnon,  W.  51;  so  in  case  of  an  attorney  employed  to 
9  Gratt,  31;  Giiidrat  v.  Mechanics'  Bank,  7  give  notice:  Firth  \.  Thrush,  8  Barn.  &  Cress. 
Ala.  324;  Howard  v.  Ives,  1  Hill  (N.  Y.),  263;  387;  2  Man.  &  Ry,  259;  see  also  sec.  3142.  subd- 
Ilead  V.  Eivf-i,  5  Cow.  303;  Lawsoii  v.  Fanners'  1,  "Agent." 
Banl:,  1  Ohio  St.  200;  Bank  of  U.  S.  v.  Goddard, 

3150.  Additional  time  for  notice  by  indorser. 

Sec.  3150,  Every  party  to  a  negotiable  instrument,  receiving  notice  of  its 
dishonor,  has  the  like  time  thereafter  to  give  similar  notice  to  prior  parties  as 
the  original  holder  had  after  its  dishonor.  But  this  additional  time  is  available 
only  to  the  particular  party  entitled  thereto. 

Each  paity  is  entitled  to  one  full  day:  ^V.  Bank  v.  Towiisley,  102Mass.  177;  107  Id.  444; 
Howard  v.  Ives,  1  lidl  (N.  Y.),  203;  Bank  of  Seaton  v.  Scoville,  IS  Kan.  43.j;  Daniel  on  Neg, 
Bridijejiort  v.  Vail,  21  N.  Y.  485;  Shdburne  F.     Inst.,  sec.  1044;  Brown  v.  i^err/itbOit,  3  Leigh,  37. 

3151.  Effect  of  notice  of  dishonor. 

Sec.  3151.  A  notice  of  the  dishonor  of  a  negotiable  instrument,  if  valid  in 
favor  of  the  party  giving  it,  inures  to  the  benefit  of  all  other  parties  thereto 
whose  right  to  give  the  like  notice  has  not  then  been  lost. 

Must  bo  valid  iu  favor  of  parry  giving  it.  Simp  on  v.  Turney,  5  Humph.  419;  Smith  v. 
The  over-dili  ,ence  of  one  party  to  a  bill  or  note  Pioach,  7  B.  Mon.  17;  W/iitmnnv.  Fanners'  Bank, 
will  not  compensate  for  tlie  lack  of  diligence  ia  8  Tort.  257;  Fitchhurg  Bank  v.  Perlmj,  2  Allen, 
otliers.  And  even  thougli  the  drawer  or  iu-  433;  Am.  L.  Ins.  Co.  v.  Emerson,  4  Smed.  & 
dorser  sought  to  bo  charged  received  the  notice  M.  177;  Daniel  on  Neg.  last.,  sec.  1045. 
as  early  as  he  would  have  been  entitled  to  it  if  Additional  time  availabl  i  only  to  party 
it  had  passed  in  due  course  through  the  interme-  entitl 3d  thereto. — Therefore  the  h.dder,  giv- 
diate  parties,  yet  the  holder,  iu  order  to  charge  iug  uoLico  to  p:ior  parties,  must  do  so  witiiin 
him,  mast  shovy  due  diligence  in  each  of  the  in-  the  time  allowed  him  to  notify  the  last  indorser: 
termediate  parties.  The  onus  probandi  in  this  Dobrer  v.  Eastwood,  3  Car.  &  P.  250;  Howe  v. 
respect  is  on  the  plaintiff:  Brown  v.  Fergu-  Tippr,  IS  C.  B.  249;  Daniel  on  Neg.  Inst,, 
hon,  3  Leigh,  37;  Stix  v.  Mathews,  G3  Mo.  371;    see.  1045. 

ARTICLE  VI. 

EXCUSE  OP  PRESENTMENT  AND  NOTICE. 

8155.   Notice  of  dishonor,  when  excused. 

Sec.  3155.     Notice  of  dishonor  is  excused: 

1,  When  the  party  by  whom  it  should  be  given  cannot,  with  reasonable  dili- 
gence, ascertain  either  the  place  of  residence  or  business  of  the  party  to  be 
charged;  or, 

554 


Title  XV,  Chap.  I.]    NEGOTIABLE  iNSTPwUMENTS  IN  GENERAL. 


§315a 


2.  "When  there  is  no  post-office  communication  between  the  town  of  the  party 
by  whom  the  notice  should  be  given  and  the  town  in  which  the  place  of  resi- 
dence or  business  of  the  j)arty  to  be  charged  is  situated;  or, 

3.  "When  the  party  to  be  charged  is  the  same  person  who  dishonors  the 
instrument;  or, 

4.  When  the  notice  is  waived  by  the  party  entitled  thereto. 


Subd.  1.  ReasonablG  diligence:  See  sec. 
3131,  subd.  G,  jiud  note,  wLciciu  piesentnieut 
Is  excused  lor  tlie  same  reason, 

Mr.  Daniel  presents  the  following:  "Due 
diligence  in  nmliin^  presentment  for  payment, 
and  ill  comiuunicating  notice,  consists,  as  a 
general  rule,  in  makiuLj  inquiries  of  such  acces- 
sible persons  as,  from  tlieir  connection  with 
the  transaction  or  place  or  parties,  are  likely 
to  be  informed,  and  in  acting  in  accordance 
with  the  information  derived  Ironi  them:  D.in- 
lel  on  Ncg.  Inst.,  .sec.  1115;  Lambert  v.  Ghise- 
I'm,  9  IJow.  iio"2;  Bnvk  of  (Jiica  v.  Bender,  21 
Vv'cnd.  C4;];  Ckajnnan  v.  Lijj'<combe,  1  Jolins. 
294;  Rausom  v.  J/ac/j,  2  Hill  (N.  Y.),  537; 
Stun/is  V.  Derrick,  \Vi.;!it  Exch.  7G;  Greenwich 
Bank  V.  De  Groot,  7  llun,  212;  liar,  is  v.  Rob- 
inson, 4  How.  333. 

Inquiries  sliould  be  made  of  the  parties  to 
the  instrument,  and  thereiore,  in  ascertaining 
the  whereabouts  of  the  drawer  or  indorsers, 
inquiries  should  l)e  made  of  the  maker  or 
accei)tor:  WhUrl.hje  v.  Rider,  22  j\ld.  538; 
WeaLhj  V.  Bell,  9  VVatt^,  273;  Walers  v.  Brown, 
15  Md.  2S5;  Eament  v.  Taylor,  25  Tex.  App.  37; 
Harrison  v.  Robln>ion,  4  How.  336.  Cut  the 
holder  will  always  lie  presumed  to  know  t'.ie 
residence  or  pl.tcj  of  business  of  his  immediate 
indorscr:   i.atrrence  v.  Miller,  IG  N.  Y.  23"). 

Subd.  2.  Notije  hj  mail — It  is  generally 
held  t'.iat  the  notice  .^liould  be  addressed  tj  the 
post-oQice  at  or  nearest  to  the  party's  residence 
or  place  of  business:  See  sec.  3144,  subd.  3. 

Subd.  3.  P-irty  to  b3  cliarg3d,  tho  per- 
son c-isliouoriug. — When  in  a  bill  the  drawer 
and  drawee  are  the  samo  person,  the  iustrum.nit, 
thougli  declared  upon  as  a  bill,  may  bo  regard ^d 
as  in  legal  effect  a  promissory  note,  and  iience 
to  the  <ja  isi  niaher  no  notice  of  dishonor  would 
be  necessary:  Roa<'h  v.  Oslle.r,  1  Man.  &  lly. 
120;  Randolph  v.  Parish,  9  Port.  73;  Chira'/o 
B.  R.  Co.  V.  iVest,  37  lad.  211;  Planters'  Bank 
V.  Evans,  3G  Tex.  592;  or  which  is  the  s  i.:no 
things  it  may  be  rejanlcd  as  an  accepted  bill: 
Cunnliiijha.ii  v.  Wardwell,  12"iMo.  4.3o;  Plant- 
ers' Bank  V.  Evan<,  3G  Tex.  592;  see  also  sec. 
3130,  ante. 

It  has  been  held  that  the  drawer  of  a  bill 
upon  himself  is  chargeable  without  present- 
ment: Baileij  V.  Soitlh-ivestern  Bank,  1 1  Fli. 
2GG;  J)!:ux  Firry  ^'o.  v.  Branei/an,  4}  lad.  3jI; 
Fairr/idd  V.  Ojsdenslvmi  R.  R.,  15  N.  Y.  3;;7. 
This  is,  however,  d:)iibtful:  2  Ames  on  Bills  and 
Notes,  4G2;  1  Parsons  on  Notes  and  Bdls,  52.J; 
West  Bank  Brandt,  v.  FuLner,  3  Pa.  St.  399; 
Daniel  on  N.-g.  Inst.,  sec.  lOSS  a. 

\\'hi  re  a  draft  is  drawn  by  the  presid'mtand 
secretary  of  a  corporation  upon  its  treasurer, 


no  notice  of  presentation  and  non-payment  is 
necessary  to  hold  the  corporation.  The  draft, 
in  such  cases,  is  only  an  order  of  the  corpora- 
tion upon  itself:  Dennis  v.  Table  Mountain 
Water  Co.,  10  C:d.  3G9, 

Gubd.  4.  "Waivers. — Tlie  waiver  may  be 
express  or  implied  from  acts  of  the  party:  J\fin- 
tarn  v.  Fisher,  7  Cal.  573. 

It  is  held  in  Goldman  v.  Bams,  23  Cal.  256, 
that  the  conditional  contract  of  an  indorser 
cannot  be  changed  to  an  absolute  one  by  parol 
evidence  of  a  verbal  promise,  made  l)y  the  in- 
dorser at  the  time  of  the  indorsement,  to  pay 
the  note  without  demand  or  notice.  Although 
this  doctrine  is  entertained  by  otlier  authori- 
ties, it  is  not  approved  by  2klr.  Daniel:  See 
Daniel  on  Neg.  Inst.,  sees.  710,  1093. 

But  where  the  demand  and  notice  are  both 
waived  in  one  agreement,  but  tiie  waiver  of  the 
latter  only  is  reduced  to  writing,  the  waiver  of 
tiie  former  may  l>e  proved  by  parol:  Mills  v. 
Beard,  19  Cal.  158;  Drhikwahr  v.  Tebbetts,  I? 
Me.  IG;  and  vice  ver.^a,  the  latter  may  be 
proved  by  parol:  Daniel  on  Neg.  Inst.,  sec. 
1093;  the  waiver  of  the  latter  m  included  in 
the  waiver  of  the  former:  Sec.  315'J,  post. 

A  verbal  assurancs  by  the  indors;.T  of  a 
promissory  note,  made  before  the  maturity  of 
the  same  to  the  holder,  to  the  effect  that  ho 
give  himself  n^  uneasiness  about  the  note;  that 
it  will  ba  paitl  at  maturity;  that  he,  the  in- 
do;-ser,  is  collecting  money  for  liie  maker,  and 
tliat  he  will  see  that  the  note  is  paid,  amounts 
t)  a  waiver  of  demand,  notice,  and  protest: 
Bruant  v.  Wdcox,  49  Cal.  47. 

IJat  a  declaration  by  an  indorser  to  a  third 
party  not  interested  in  the  subject-nxatter, 
"  that  the  fact  of  notice  not  having  bjen  given 
at  t!ie  proper  time  would  m  ike  no  <liiferenco 
with  him;  that  he  would  dj  wliat  was  right," 
is  not  a  sulficient  waiver:  Olendor/  v.  Swartz,  5 
Ca!.  483. 

With  rerjard  to  waiver  made  bHween  the  exe- 
cution anil  matiirlt;/  of  the  iustrnnient,  the  rule 
is  thus  stated  by  Mr.  Daniel:  "Any  act,  course 
of  conduct,  or  language  of  the  drawer  or  in- 
dorser calculated  to  induce  tlic  holder  not  to 
make  denimd,  or  protest,  or  give  notice,  or  ta 
pat  him  off  his  guard,  or  any  a  jreement  of  the 
parties  to  that  ctFoct,  will  dispense  with  the 
n  ^cessity  of  taking  these  steps:  "  Daniel  on 
Nog. last. , sec.  1103;  approve  1  i  i  lioij  /v.  Ilankoj 
Tofi'.lo.  32  Ohio  St.  52o;  see  also  Mayer's  Ap- 
iva'.  87  Pa.  St.,  129. 

Waiver  of  proiest  of  foreiga  bill:  Sec. 
3232    ')  ist. 

'B.iz'ii'i'i  of  pre33iitni3n,':  of  bill  of  ex- 
cha-iro  and  uoiija:  Sec.  3220. 


3158.    P resent m/'iit  and  notice,  tohen  ercusfd. 

Sec.  315G.  Presentment  and  notice  are  excused  as  to  any  pxr'cy  to  a  negoti- 
able instrument  who  informs  the  holder,  within  ten  days  before  its  maturity^ 
that  it  will  be  dishonored. 


555 


8§  3157-3159 


OBLIGATIONS. 


[Div.  Ill,  Part  FV, 


♦V7ithln  t'?nd33rs. — "  No  term  has  heretofore  note  that  he  will  not  be  able   to  pay  it  at 

been  lixe:l  Ijy  law.      Iiit'ormation   'that  it  will  maturity,  while  it  excuses  non-preseutuient  as 

be  ilisiKjnonul:'    See    Spencer   v.   Harvey,     17  to  the  luakur  himself,  does  not  excuse  present- 

Weml.  4S1);  Leffi/iijiirll  v.  White,  1  Johus.  Cas.  ment  as  to  the  iudorser:  Applejarih  v.  Abbott, 

99:"  Ciimniissiwiiers'  note.  64  Cal.  4o9. 
A  statement  to  the  holder  by  the  maker  of  a 

8157.   Same. 

Sec.  3107.     If,  before  or  after  the  maturity  of  an  instrument,  an  indorser  has 

received  full  security  for  tlie  amount  thereof,  or  the  maker  has  assigned  all  his 

estate  to  him  as  such  security,  presentment  and  notice  to  him  are  excused. 

Ta!dn2  security. — Where  the  indorser  took  notes  sued  on,  and  assigned  the  mortgages 
a  trausier  of  ])ro})erty  as  a  general  security  for  given  to  secure  the  same.  Hold,  that  t.ic  UKjrt- 
all  his  liabilities  in  belialf  of  the  maker  of  the     gages   were    not   intended    to   indemnify   the 


delendant  against  his  liability  as  indorier,  and 
would  not  excuse  presentnieut  anil  notice  as  to 
him:  Oleudorf  v.  Hwartz,  5  Cal.  480;  see  notea 
to  Kramer  v.  Suiul/ord,  89  Am.  Dec.  93;  Uojid 
V.  Faruiiam,  4  Id.  49;  Mead  v.  Small,  11  Id.  G7. 


note  and  turned  it  into  money,  but  there  was 
not  enough  to  pay  all,  there  was  no  ground  to 
presume  a  wai\er,  because  the  indorser  iiad  a 
right  to  apply  the  proceeds  to  the  other  liabili- 
ties: Van  A'crdcu  v.  BucMey,  5  Cal.  283. 
The  defendant  indorsed  to  the  plaintiff  the 

8158.    JJdaij,  v^hen  excused. 

Six.  3158.     Delay  in  jiresentraent,  or  in  givmg-  notice  of  dishonor,  is  excused 

when  caused  by  circumstances  whi"h  the  party  delaying  could  not  have  avoided 

by  the  exercise  of  reasonable  care  and  diligence. 

JIassachusetts  is  the  only  state  where  a  con- 
trary view  is  taken.  There  presentment  must 
bo  made  at  tlie  last  residence  of  the  absconding 
debtor:  See  Bcink  v.  Spencer,  30  Am.  Dec.  734, 
an  1  note.  Absconding  excuses  presentment 
only.  Notice  must,  a  f>rtiori,  be  given  to 
drawer  and  indorsers:  Tailor  v.  Snyder,  3 
Deuio,  \^o;  S.  C,  45  Am.  D.'c.  457. 

Tiiese  are  excuses  for  delay  merely,  and 
tlieretore  when  they  are  removeil  or  no  longer 
exist  thi  duty  of  presentment  or  notics  is  re- 


Es3U3e.3  arising  from  nscessity The  fol- 
lowing may  bj  mentinned  as  of  this  character: 

1.  \Viiero  the  occurrence  is  of  a  pu!)lioor  po- 
litical ciiai'acter,  as  in  case  of  war,  public  inter- 
diction of  commerce  or  intercourse,  occupation 
of  country  by  public  enemy,  or  mdifciry  dis- 
turbances, or  political  disturbances,  riots,  or 
insurrections:  See  2  Daniel  on  Nog.  Inst.,  sees. 
1033,  I0>i3-I0;j8. 

2.  The  prevalence  of  a  malignant  or  con- 
tagious disease  or  epidemic:    Tunno  v.  Lajicc,  i 


Johns.  Cas.  1;  bub  see  lioosevelt  v.  Woodhidl,  2     vived:   McVeigh  v.  Bank  of  Oil  Dominion,  26 
■A^th.  50.  Gratt.  783;  Bynum  v.  Apper»on,  9  Heisk.  G32; 

3.  An  overwhelming  calamity  or  unavoidable  Mon/a:i  v.  Bctuk  of  LoaiwH'e,  4  Bush,  82; 
accident:  fliltoi  v.  Shepherd,  G  E  ist,  10;  IVind-  llolsc  v.  Adam%  43  Pa.  St.  233;  Jamesv.  Wade, 
ham  B'uik  v.  Norton,  22  Conn.  213.  21    Li.  Ana.  513;  Peters  v.  Ilohh^,  23  Ark.  G7; 

ir  len  v.  Smith,  44  Miss.  552;  Becde  v.  Parriah, 
N.  Y.  437. 
Pier  v.  Ifeinrichxhofen,  G7  il  >.  103.     But  if  the         See,  generally,  Daniel  on  Neg.  Inst.,   sees. 
delay  is  imnutable  to  the  holder,  as  by  the  mi.5-     103)- 13/1;  Story  on  Notes,  sec.  353. 


4.   Miicarriage  or  delay  in  transmission  by     D  ir 
mail:  Windham  Bank  v.  Norton,  22  C  ia:i.  21:1;     23  N 


direction  of  tiie  bid,  he  will  not  be  excused  f or 
failure  in  jjrom^jt  presentueut:  SchofieU  v. 
Bayard,  3  VVon  1.  433.  And  under  tliij  head 
may  he  .'pven  ilelay  occasioned  by  travel  being 
impeded  oil  acjouat  of  bad  weather:  Broiv.i  v, 
Olnixte'l,  33  Cal.  1G3. 

5.  Tiie  utier  iaipracticability  of  giving  notice, 
by  reasin  of  tlie  party  entitled  thereto  iiaviag 
absconded  or  having  no  fixe  1  place  of  residence, 
or  his  place  of  residence  or  busines?  being  un- 
known and  iacapahle  of  being  ascertained  upon 
reasonable  inipiiri  s:  See  sec.  3153,  sul)d.  i;  ab- 
sconding: See  Daniel  on  Neg.  Inst.,  sec.  1141; 
notes   to   Taylor  v.  Snyder,  45  Am.  Dec.  457. 


Pl3ai.n2;.— Wa3red3layooour3,  the  facta 
whicli  excuse  it  are  an  essential  part  of  the 
CO  n  tlaini,  an  I  if  not  averred  therein,  it  is 
iasu  .i^leai:  Jerome  v.  Stehbin-<,  1  4  Cal.  457;  see 
aljo  r.'ionpso  I-  v.  WilUan^,  Id.  133;  Ritchie  v. 
Brtdhtuo,  5  Id.  223;  Kejes  v.  Fenstermaker,  24 
Id.  323. 

D3l:iy  in  prassatmsat  for  aoosptauoe: 
See:ijc.  .3213,  poHt. 

D  jiny  i:i  prasaatins  bill  for  p?rjva  3nt :  Sees. 
.321: J.  3211. 

Il3a3Daibl3d'Ji33ao3:  See  sees.  3131,  3155, 
and  uoce;  sjc.  3213,  and  note. 


3159.     WaU-er  of  presentment  and  notice. 

Sec.  3159.  A  waiver  of  jiresentment  waives  notice  of  dishonor  also,  unless 
the  contrary  is  expressly  stipulated;  but  u  waiver  of  notice  does  not  waive  pre- 
sentment. 


"Waiver  of  uotio3  does  not  waive  pre- 
Bentai3at. — Tins  is  tlie  general  rule:  Sprd-jie 
v.^F^e'rker,  8  Or.  337;  Barlcnn  v.  Sliipherd',  11 
Weud.  aij;  Bnclianan  v.  Marshall,  22  Vt.  531 ; 


L'fie  V.  Steward,  23  Me.  93;  Derk'^hire  Bank  v. 
Jo'ien,  G  Mass.  524;  Voorltees  v.  Atlee,  29  Iowa, 
49. 

But  it  was  held  in  Malthey  v.  Oally,  4  CaL 


55{j 


TiTLF.  XV,  Chap.  I.]    NEGOTIABLE  INSTRUMENTS  IN  GENERAL. 


§§  3160-3165 


62,  that  an  express  waiver  of  notice  of  non-pay-  sented.  In  case  of  a  ■written  waiver  of  notice, 
mcnt  was  equivalent  to  an  admission  th:it  tlie  a  verbal  waiver  of  demand  may  ha  proved  by 
note  had  been  presented,  or  need  not  be  pre-     parol:  JilUls  v.  Beard,  19  Cal.  15S. 

Slfc'O.     Waiver  ofprolfd. 

Sec.  31C0.     A  waiver  of  protest  on  any  negotiable  instrument  other  than  a 
foreign  bill  of  exchange  waives  presentment  and  notice. 


Obhsr  than  a  foreign  bill. — ^Yaive^s  of  pro- 
test are,  snys  j\Ir.  Daniel,  "  wlion  applied  to  a 
foreign  bill,  universally  regarded  as  expressly 
waiving  presentment  and  notice,  the  ]irotest 
being,  accordingto  the  lav/ merchant,  the  formr^l 
and  necessarj'  evidence  of  such  an  instrument:" 
Daniel  on  Neg.  Inst.,  sec.  1095;  Union  Danh  v. 
Ilyih',  0  Wheat.  572;  Drown  v.  Hull,  33  Gratt. 
31;  Edwards  (m  Bills,  C34. 

The  foreign  bill  is,  however,  excepted  in  the 
rule  as  stated  by  the  text. 

As  to  tho  effect  of  waiver  of  protest — On 
an  inland  bill  or  note  there  has  been  some  con- 
troversy on  the  ground  that  [.rotest  is  not  ncccs- 
Bary  upon  the  dishonorof  sucii  paper.     But  the 


concur  in  giving  such  a  waiver  the  effoct  of 
dispensing  vitli  demand  and  notice:  Codding- 
ton  V.  D'lvix,  1  N.  Y.  180;  3  Denio,  10;  Porter 
V.  Kemhcdl,  o.\  Barb.  4G7;  Fitiher  v.  Price,  37 
Ala.  497;  Jnccard  v.  Anderson,  37  Mo.  91; 
Carjtenffr  v.  Uinpiolds,  42  Miss.  S07,  note;  Hood 
V.  J i allenherk,  7  Ilun,  304;  Harvey  v.  iS'clson, 
31  La.  Ann.  434.  In  this  case  the  indorsement 
was  as  follows:  "We  hercliy  waive  the  neces- 
sity of  either  protest  or  notice."  Per  White,  J.: 
"The  protest  necessarily  includes  a  due  de- 
maud,  and  if  such  be  the  case,  the  waiver  of 
protest  necessarily  waived  that  which  was  aa 
integral  or  essential  ]!art  otthe  protest." 
Protest  of  foreign  biUs:  See  sees.  3225  et 


■weight  aa  well  as  the  majority  of  authorities    eeq. 

ARTICLE   VII. 

Extinction  of  negotiable  instruments. 
3164.    Obligation  of  party,  wlien  extinguislied . 

Sec,  31G4.  The  obligation  of  a  party  to  a  negotiable  instrument  is  extin- 
guished: 

1.  In  like  manner  with  that  of  parties  to  contracts  in  general;  or, 

2.  Ey  payment  of  the  amount  due  upon  the  instrument,  at  or  after  its  matu- 
rity, in  good  faith  and  in  the  ordinary  course  of  business,  to  any  person  having 
actual  possession  thereof,  and  entitled  by  its  terms  to  payment. 

Estinctlcii  of  obligations  in  general:  See    liens  were  claimed  by  others  paid  a  thous.ind 


ante,  sees.  1173  et  seq. 

Payment. — Tlic  sui-render  of  a  note  is  prima 
facie  e\idcijee  of  payment:  Snii'li  v.  Ilorper, 
5  Cal.  3-19.  And  as  a  concurrent  condilion  of 
payment,  the  party  has  a  riglit  to  demand  its 
eurrender:  Sea  sec.  3137.  But  if  the  note  is 
surrendered   through  mistake,  under  tlie  sup- 


dollars  to  a  third  person,  who  gave  therefor  his 
jjromissory  note,  with  the  understanding  that 
the  payor  sliould  pi'ocure  an  assignment  to  him- 
self of  the  liens,  and  hold  them  for  the  beneQt 
of  the  iiaj'cc,  which  was  done. 

Where  a  third  person,  at  the  request  of  the 
maker,  pays  tlie  note  held  by  a  colL'ctor,  it  is 


po-sition  that  it  is  iully  paid,  when  in  fact  it  is     extinguisheil,  and  cannot  thereafter  be  treated 


not,  the  ba'anec  due  may  be  stid  recoven.-d: 
JJanU  V.  JIar.'.lKdl,  23  Cal.  223.  Nor  is  a  bill 
of  .^ale  maile  by  the  payee  of  a  jiromissory  note 
to  the  maker,  wliie!i  bargains  ami  sells,  among 
other  tilings,  "'all  debts,  notes,  and  accounts,  of 
wliatever  n..tuic,  due  me,"  evidence  c  f  tlie  pny- 
meut  of  the  note:  Alorrlll  v.  MorrUl,  26  Id. 
2SJ. 

That  the  transfer  of  a  note  by  the  payees  to 
one  of  the  makers  operates  as  payment,  so  as 
to  previiit  an  aisignment  thereof  after  niatu- 
rily,  Sfo  C'crdonv.   H'ani^eif,  21  Cal.  77. 

1.1  Treadwi  il  v.  liimmelmann,  50  Cal.  9,  an 
extinguit-hment  of  the  note  by  accord  and  sat- 
isfaction was  belli  to  have  taken  place  under 
the  following  facts:    One  on  whose  land  ceitain 

3163.    Negotiable  instrument  revived. 

Section  310.")  was  repealed  by  act  approved 
Maicli  30.  1871;  Amendments  1873-4,  2J4; 
took  fffeccJuly  I.  1874. 

The  repealed  section  read  as  follows:  "  If, 
after  its  extinction,  a  ncgotial>le  instrument 
comes  into  the  possession  of  the  inthirsee  in  due 
course,  the  obbgatiou  thereof  revives  in  his 
favor." 

It  waa  repealed  at  the  suggestion  of  the  code 


as  a  purchase.  The  obligation  to  paj*  being 
thus  discharged,  it  cannot  be  revived  by  a  sub- 
sequent transfer:  ifornn  v.Ahby,(y.\CA.bQ. 

Ncgotiablo  iustnarrients  do  not  discharge 
tho  d3bt,  they  merely  postpone  the  time  of 
payment:  Dreicderx  v.  Bourx,  SCal.  oOl;  Smith 
V.  0(m?.s%  21  Id.  11;  JJiyjins  v.  Wort.H,  18  Id. 
3:;0;  Welch  V.  Alllirjton,  23  Id.  322;  Crawford 
V.  Poberts,  50  Id.  2:i5. 

An  express  agreement  must  be  shown  to  C3- 
tablish  the  fact  ih.vt  a  bill  or  note  of  eitiier  the 
debtor  or  a  third  person  was  taken  by  the  cred- 
itor in  paynicnt  of  a  pre-exisling  debt:  Broitm 
V.  Olmsted.  50  Cal.  IG2;  Grijith  v.  Crxja.!,  12 
Id.  320;  IIV/c7t  V.  Arlington,  23  Id.  322;  JJreics- 
ttv  V.  Hours,  8  Id.  500. 


examiners,  without  comment.  In  illustration  of 
the  section,  tlr;  code  commissioners  cited  Man- 
hatta.iCo.  V.  /?e/«oW.s-,  2Hill(N.  V.),  140;  Imt 
see  Elfni  V.  //(■//,  27  Cal.  372;  Gordon  v.  Wan- 
si'v,  21  Id.  77;  Folsoni  v.  Barilctt,  2  Id.  1G.'>; 
Vinton  v.  Crowe,  4  Id.  339:  Coye  v.  Pa'mn;  16 
Id.  158;  Ihiyward  v.  Sle'ini",  30  I«l.  53;  p/iller 
V.  JIiUcIiiii'/i,  10  II.  52);  see,  however.  Code 
Civ.  Proc.,  sec.  440. 


657 


S§  3171-3176  OBLIGATIONS.  [Div.  Ill,  Pakt  IV, 

CHAPTEU  II. 

BILLS  OF  EXCHANGE. 

Akticle  I.  Form  AND  Interpretation ,,,.,,....,, 3171 

IL  Days  OF  Grace 3181 

III.  Presentment  for  Acceptance 3185 

IV.  Acceptance 3193 

V.  Acceptance  or  Payment  for  Honor 3203 

VI.       PRESENTMENT   FOR   PAYMENT 3211 

VII.     Excuse  of  Presentment  and  Notice 3218 

VHL     Foreign  Bills _ 3224 

ARTICLE  I. 

FORM   AND  INTERPRETATION   OF  A  BILL. 

3171.  Jl ill  of  exchange,  what. 

Sec.  3171.     A  bill  of  exchange  is  an  instrument,  negotiable  in  form,  by  wbicb 

one,  who  is  called  the  drawer,  requests  another,  called  the  drawee,  to  pay  a 

specified  sum  of  money. 

Bills  of  erc^hanse,  form. — The  following  insertion  of  the  M'ord  "please  "  does  not  alter 

\^Titteii  order  {wsscsses  all  the  requisites  of  an  the    character   of    the    instrninent:     Id.     The 

inland  hdl  of  excliauge:   "Mi*.   Strobe,   please  wi'itten  words  in  a  bill,  when  plain,  definite, 

pay  the  t)iarer  of  tliese  lines  two  huntlred  and  and  certain,  must  control  without  regard  to  the 

thirty-si.K  dollars,  and  charge  tlie  same  to  my  superscription  in  figures:  Poorman  v.  Mills,  39 

account:"    Wheallej  v.  Strobe,  12  Cal.  92.    The  Id.  345. 

3172.  Drawee,  in  case  of  need. 

Sec.  3172.     A  bill  of  exchange  may  give  the  name  cd  any  person  in  addition 
to  the  drawee,  to  be  resorted  to  in  case  of  need. 
Acceptance  or  payment  for  honor:  See  sees.  3203  et  seq. 
Presenimsnt  to  drawee  iu  case  of  need:  Sec.  3188. 

3173.  JViU  in  parts  of  a  set. 

Sec.  3173.  A  bill  of  exchange  may  be  drawn  in  any  number  of  parts  each 
pai't  stating  the  existence  of  the  others,  and  all  forming  one  set. 

Damages  for  non-payment  of  foreign  bill  drawn  in  parts':  See  sec.  3234,  and  note. 

3174.  When  must  be  in  a  set. 

Sec.  3174.  An  agi-eement  to  draw  a  bill  of  exchange  binds  the  drawer  to 
execute  it  in  three  parts,  if  the  other  party  to  the  agreement  desires  it. 

3175.  Presentment,  etc.,  of  part  of  set. 

Sec.  3175.     Presentment,  acceptance,  or  payment,  of  a  single  part  in  a  set  of 

a  bill  of  exchange,  is  sufficient  for  the  whole. 

Payment  cf   first   of  exchange,  secon<l  Presentment   for   acceptance:    See  sec 

having  been  protested,  saves  the  damaojes  given  31S3. 

by  section  3234:  Paje,  B.  <Ss  Co.  v.  Warner,  4  Presentment  to  joint  drav/ees:  See  sec 

Cal.  395.  3187. 

3176.  Bill,  where  payable 

Sec.  317G.     A  bill  of  exchange  is  payable: 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable;  or, 

2.  If  it  specify  no  place  of  payment,  then  at  the  place  to  which  it  is  ad- 
dressed; or, 

3.  If  it  be  not  addressed  to  any  place,  then  at  the  place  of  residence  or  busi- 
ness of  the  drawee,  or  wherever  he  may  be  found.  If  the  drawee  has  no  place 
of  business,  or  if  his  place  of  business  or  residence  [cannot]  with  reasonable 
diligence  be  ascertained,  presentment  for  payment  is  excused,  and  the  bill  may 

658 


Title  XV,  Chap.  H.]  BILLS  OF  EXCHANGE.  §§  3177-31S7 

be  protested  for  non-payment.     [Amendment,  approved  Mai-vh  30, 1874;  Amend- 
menls  1873-4,  2G4;  took  effect  Juh/  1,  1874.] 
Negotiable  instrument  specifying  place  of  payment:  See  sees.  3130  et  seq. 

3177.    HigJits  and  obligaliona  of  drawer. 

Sec.  3177.  The  riglits  and  obligations  of  the  drawer  of  a  bill  of  exchange 
are  the  same  as  those  of  the  first  iudorser  of  any  other  negotiable  instrument. 

Rights  of  indorssr:  See  ante,  sees.  3108  et  seq.,  3130  et  seq.,  and  3141  et  seq. 

Contract  of  indorser:  Sec.  3116. 

ARTICLE   ir. 

DAYS    OF   GRACE. 

3181.   Boys  of  grace. 

Sec.  3181.     Days  of  grace  are  not  allowed. 

Days  of  grace. — "Section  1  of  the  act  of  517.  As  the  allowance  or  non-allowance  of 
April  2,  1851,  Stats.  1851,  523,  among  other  clays  of  grace  is  ilctcrtnined  by  tho  law  of  tl\e 
thiii'-iS,  provided  tliat  '  three  days,  uoiiuiion'y  place  wliere  tho  bill  is  payable,  it  will  follow, 
called  giace,  shall  be  allowed,  except  on  sight  after  the  code  takes  effect,  that  a  bill  of  ex- 
bills  or  dra'.ts.'  To  avoid  all  the  intricate  change  drawn  in  London  upon  San  Francisco 
questions  arising  out  of  such  a  provision,  and  will  not  bo  entitled  to  days  of  grace,  while  a 
to  that  extent  to  al^rogate  a  rule  of  tho  law  bill  drawn  in  San  Fi'ancisco  upon  Loudon 
merchant,  section  3181  was  inserted  in  the  would  be  entitled  to  daj's  of  grace:  Story  on 
code.  The  connnissioners,  in  this  respect,  fol  Bills  of  Exchange,  sec.  334;  L'h.  Bills,  400; 
lowed  the  French  code  of  commerce,  arts.  135  Kyd  on  liills,  9;  Story  on  I'rom.  Notes,  sees. 
and  187,  and  Iea\cs  the  parties  '  to  tix  the  day  2I(),  247;  Edwards  on  Bills,  518;  see  sec.  3247, 
of  payment  wiLhoiit  any  reference  to  a  rule  which  ir.akes  this  section  applicable  to  promis- 
coucheil  in  words  tliat  have  now  legitimately  sory  notes:"  Code  commissioners'  note, 
only  a  historical  meaning:'  Edwards  on  Bills, 

ARTICLE  III. 

PRESENTMENT  FOR  ACCEPTANCE. 

3185.  When  a  bill  may  be  presented. 

Sec.  3185.     At  any  time  before  a  bill  of  exchange  is  payable,  the  holder  may 

present  it  to  the  drawee  for  acceptance,  and  if  acceptance  is  refused  the  bill  is 

dishonored. 

See  rcfeiences  in  note  to  next  section.  Presentment  in  case  of  acceptance  for 

Acceptance,  how  made:  Sees.  3193  et  seq.     honor:  Sees.  3200,  3207. 

3186.  Presenlmentfor  acceptance,  how  made. 

Sec.  318G.  Presentment  for  acceptance  must  be  made  in  the  following  man- 
ner, as  nearly  as  by  reasonable  diligence  it  is  practicable: 

1.  The  bill  must  be  presented  by  the  holder  or  his  agent; 

2.  It  must  be  presented  on  a  business  day,  and  within  reasonable  hours; 

3.  It  must  be  presented  to  the  drawee,  or,  if  he  be  absent  from  his  place  of 
residence  or  business,  to  some  person  having  charge  thereof,  or  employed 
therein;  and, 

4.  Tho  drawee,  on  such  presentment,  may  postpone  his  acceptance  or  refusal 
until  the  next  day.  If  the  drawee  have  no  place  of  business,  or  if  his  place  of 
business  or  residence  cannot,  with  reasonable  diligence,  be  ascertained,  present- 
ment for  acceptance  is  excused,  and  the  bill  vaay  be  protested  for  non-accept- 
ance. [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  205;  look 
efect  July  1,  1874.] 

Presentment  of  part  of  set:  See  sec.  3175.        Presentment  of  bill  of  exchange  for  pay- 
Presentment    for    payment,    generally:    meat:  See  sees.  3211  et  seq. 
Sec  sees.  3130  et  seq. 

3187.  Presentment  to  joint  drawees. 

Sec.  3187.  Presentment  for  acceptance  to  one  of  several  joint  drawees,  and 
refusal  by  him,  dispenses  with  presentment  to  the  others. 

659 


§§  31SS-3195  OBLIGATIONS.  piv.  III.  Part  IV, 

S188.    When  presentment  to  be  made  to  drawee  in  case  of  need. 

Sec.  3188.  A  bill  of  exchang-c  which  specilies  a  drawee  in  case  of  need  must 
be  presented  to  him  for  acceptance  or  payment,  as  the  case  may  be,  before  it 
can  be  treated  as  dishonored. 

Dravyee  in  case  of  need;  Sec.  3172. 

31G9.    F7-"s('nt>nent,  when  mui>t  be  made. 

Si:c.  3189.  When  a  bill  of  exchange  is  payable  at  a  specified  time  after  sight, 
the  drawer  and  iudorsers  are  exonerated  if  it  is  not  presented  for  acceptance 
within  ten  days  after  the  time  which  would  suffice,  with  ordinary  diligence,  to 
forw;ird  it  for  acceptance,  unless  presentment  is  excused. 

Time  for  presenting  bill  of  eiiohange. —    20  Wend.   lO'i;   Robinson  v.  Ampn,  20  Johns, 
"  lief  ore  tlic  ciide,  tlie  only  rule  est;iblislH;<  I  was     14G.     But  this  was  too  indetiuitu:  "  Coumds- 
that  'due  tliligeiiL-e  '  must  be  used:   Wfthcy  v,     siouers' note. 
Andrtios,  311111  (N.  Y.),  582;  Smith  v.  James, 

ARTICLE  IV. 

ACCEPTANCE. 

8103.    Aceeptance,  how  made. 

Sec.  3193.     An  acceptance  ot  a  bill  must  be  made  in  writing,  by  the  drawee 

or  by  an  acceptor  for  honor,  and  may  be  made  by  the  acceptor  writing  his 
name  across  the  face  of  the  bill,  with  or  without  other  words. 

Acceptance  for  honor:  See  S3C   ."^233.  change  may  be  held  in  favor  of  those  who  part 

PoTol  aoceptance  of  a  bill  is  binding  where  with  value  to  t!ie  drawer  on  the  faith  of  such 

not  otherwise  jTovidcd  by  statute:  See  1  Dun-  promise,  see  Wakrjield   v.  (h-ee/ihoxl,  23  Cal. 

iel  on  Neg.  Inst.,  sec.  504;  Scwlder  v.  Unlm  597;  Naijlce  v.  Lyman,  14  Id.  450;  see  also  sec. 

N.   B.,  91  U.   S.  40G;  AlcCuh-hea  v.   Rice,  56  3197.     But  in  the  former  of  these  cases  it  was 

Miss.  455;  Piircev.  Kittercdje,  1 15  Mass.  374,  dcterniined  that  an  existing  indebtedness  from 

and  numerous  decisions  cited  in  1  Parsons  on  the  drauer  to  the  person  to  whom  the  promise 

Notes  and    Bdls,    285;    Ch.    Bills,    280.     But  to  accept  was  made  was  not  suilicienfc  to  charge 

statutes  are  now   very  generally  adopted  re-  the  promisor  as  acceptor  unless  made  in  wriuing. 

quiring  an  acceptance  to  be  in  writing:  19  &  Partial  payment  of  the  amount  of  a  di'aft, 

20  Vict.,  c.  57,  sec.  G;  41  &  42  Id.,  c.  13,  sec.  and  an  indorsement  of  tiie  receipt  tiieroof  in 

1;  2  N.  Y.   R.  S.,  Gtli  cd.    IIGO,  sec.   G;  Rev.  the  handwriting  of  the  drawee,  signed  by  the 

Code  Ala.  1840;  2  G.  &  C.  Ark.  Stat.,  sec.  549;  payee,  is  not  an  acceptance:  BasseU  v.  Haines. 

Gen.  Stats.  Kan.,  c.  14,  sec.  8;  R.  S.  Me.,  c.  9  Cal.  2G0. 

.32,  sec.  10;  I  Conip.  L.  Mich.,  c.  31,  sec.  7;  R.  Cow/itionnl   acceptance. — Where   a  draft    ia 

S.  Minn.,  c.  23,  sec.  6;  1  Wagn.  Mo.  Stats.,  c.  accepted  conditionally,  to  be  paid  on  t!ie  hap- 

18,  sec    I;   1  Wis.  Stats.,  c.  GO,  sec.  7;  Gen.  L.  pening  of  a  contingency,  it  is  a  (piestion  for  the 

Or.,  c.  48,  sec.  7.  j'l'y  to  determine  whether  the  event  has  hap- 

Accepiiaiice    generally.  —The   want  of    a  pened  or  not:  Nagle  v.  Homer,  8  Cal.  353. 

written  acceptance  does  not  adcct  t!ie  lif^ht  of  Acceptance  by  one  not  a  party  to  the 

the  payee  to  tlie  money  due,  but  oidy  tlie  mode  bill  is  valid,  and  will  bind  the  person  as  ac- 

of  cnfon;ing  it:  Wlieat.ley  v.  Hlrobe,  12  Cal.  92.  ceptor  when  it  is  made  for  a  eonsitlcration,  and 

A  verbal  acceptance  not  being  suili^jient,  Rl.,  wichout  sucli  inducement  from  the  payee  aa 

and  sec.  3iy.'5,  Kn/tra,  the  payee  cannot  recover  amounts  to  fraud:  Ki-U)/  v.  Li/nc/i,  22  Cal.  GGl. 

on  the  bill  of  exchange;  he  may,  however,  re-  It  is  a  suHicient  consideration  for  tiie  aecept- 

cover  as  ntisi^nce  of  the  drawer's  claim  against  auce  of  a  di-aft  by  one  not  a  party  to  tlie  paper 

the  drawee:  Id.  that  the  payee  thereby  loses  the  acceptance  of 

That  one  who  promises  to  accept  bill  of  ex-  the  drawer:  Id. 

3194.    ILilder  entitled  to  acceptance  on  face  of  bill. 

Sec.  3194.  The  holder  of  a  bill  of  exchange,  if  entitled  to  an  acceptance 
thereof,  may  treat  the  bill  as  dishonored  if  the  drawee  refuses  to  write  across 
its  face  an  unqualified  acceptance. 

Acceptance  on  separate  paper:  See  sees.  3194,  3195. 

3185.    What  acceptance  Hufficlenl  wWi  consent  of  holder. 

Sec.  319;").  The  holder  of  a  bill  of  exchange  may,  without  prejudice  to  bis 
rights  against  prior  parties,  receive  and  treat  as  a  sufficient  acceptance: 

1.  An  acceptance  written  upon  any  part  of  the  bill,  or  upon  a  separate  paper; 

2.  An  acceptance  qualified  so  far  only  as  to  make  the  bill  payable  at  a  par- 
ticular place  within  the  city  or  town  in  which,  if  the  acceptance  was  unqualified, 
it  would  be  payable;  or, 

660 


tiTLB  XV,  Chap.  H.]  BILLS  OF  EXCHANGE.  §§  3196-3205 

3.  A  refusal  by  the  drawee  to  return  the  bill  to  the  holder  after  presentment, 
in  which  case  the  bill  is  payable  immediately,  without  regard  to  its  terms. 

Part  payment  not  acceptance:  See  in  note  Conditioasil  acceptance:  See  in  note  to 
to  sec.  3193.  sec.  31i'3. 

Acceptance  on  separate  paper:  See  also        Acceptiince  generally:  Sec  3193. 
next  section. 

8196.  Acceptance  by  separate  instrument. 

Sec.  3196.     The  acceptance  of  a  bill  of  exchange  by  a  separate  instrument 

binds  the  acceptor  to  one  who,  upon  the  faith  thei-eof,  has  the  bill  for  value  or 

other  good  consideration. 

Acceptance  on  separate  instrument —  an  acceptance  to  holders  for  any  good  consider- 
"This  section  was  based  upon  1  R.  S.  of  N.  Y.,  atioii,  as  well  as  to  holders  for  value:  See  Burnt 
768,  sec.  7,  modified  to  give  the  benefit  of  such    v.  Rohbins,  40  Barb,  3G8:"  Commiaaiouers' uotek 

8197.  Promise  to  aceept,  when  equivalent  to  acceptance. 

Sec.  3197.  An  unconditional  promise  in  writing  to  accept  a  bill  of  exchange- 
is  a  sufficient  acceptance  thereof  in  favor  of  every  person  who,  upon  the  faith 
thereof,  has  taken  the  bill  for  value  or  other  good  consideration. 

Promise  to  accept:  See  in  note  to  sec.  3193, 

8198.  Cancellation  of  acceptance. 

Sec.  3198.     The  acceptor  of  a  bill  of  exchange  may  cancel  his  acceptance  at 
any  time  before  delivering  the  bill  to  the  holder,  and  before  the  holder  has, 
with  the  consent  of  the  acceptor,  transferred  his  title  to  another  person  who  ■ 
has  given  value  for  it  upon  the  faith  of  such  acceptance. 

8199.  TT7ia/  acceptance  admits. 

Sec.  3199.     The  acceptance  of  a  bi^l  of  exchange  admits  the  signature  of  the  ■ 
drawer,  but  does  not  admit  the   signature  of  any  indorser  to  be  genuine. 
[Amendment,  approved  March  30, 1874;  Amendments  1873-4,  2G5;  look  effect  Jalif^ 
1,  1874.] 

Geuuiueness  of  signature  vsrarranted  by  indorser:  See  sec.  3116,  subd.  3» 

ARTICLE  V. 

ACCEPTANCE   OR   PAYMENT   FOR-HONOR, 

8203.  Wlien  bill  may  be  accepted  or  paid  for  honor. 

Sec.  3203.     On  the  dishonor  of  a  bill  of  exchange  by  the  drawee,  and,  in  case- 
of  a  foreign  bill,  after  it  has  been  duly  protested,  it  may  be  accepted  or  paid  by 
any  person,  for  the  honor  of  any  party  thereto. 
Drawee  in  case  of  need:  See  sec.  3172.  Acceptor  for  honor  is  in  effect  the  maker 

Payment  of  foreign  bill  for  honor:  See    of  a  promissory  note:  Sec.  32-lG. 
Bee.  'SS.VS, 

8204.  Holder  of  bill  of  exchange  bound  to  accept  payment  for  honor. 

Sec  3204.  The  holder  of  a  bill  of  exchange  is  not  bound  to  allow  it  to  be 
accepted  for  honor,  but  is  bound  to  accept  payment  for  honor 

Acceptance,  how  made:  See  sees.  3193  et  Acceptance  for  honor,  ho"wr  made:  Sco. 
eeq.  3205. 

8205.  Acceptance  for  honor,  how  made. 

Sec.  3205.  An  acceptor  or  payor  for  honor  must  write  a  memorandum  upon 
the  bill,  stating  therein  for  whose  honor  he  accepts  or  pays,  and  must  give 
notice  to  such  parties,  with  reasonable  diligence,  of  the  fact  of  such  acceptance 
or  payment.  Having  done  so,  he  is  entitled  to  reimbursement  from  sucb 
parties,  and  from  all  parties  prior  to  them. 

Acceptance,   how  made  generally:   See  declare  in  the  presence  of  a  person  aiithopized 

sees.  31i).J  et  s-eq.  to  make  protest  for  whose  honor  he  pays  th* 

Reimbursement. — In  case  of  foreign  bills  same :  Sec.  3233. 
of  exchange,  the  one  who  pays  for  honor  must 

Civ.  Code— 36  '  5C1 


{§  3206-3218  OBLIGATIONS.  [Div.  Ill,  Pabt  IV, 

3206.  How  enforced. 

Sec.  3206.  A  bill  of  exchange  whicli  has  been  accepted  for  honor  must  be 
presented  at  its  maturity  to  the  drawee  for  payment,  and  notice  of  its  dishonor 
by  him  must  be  given  to  the  acceptor  for  honor,  in  like  manner  as  to  an  indorser; 
after  which  the  acceptor  for  honor  must  pay  the  bill. 

Presentment  for  acceptance:  See  sec.  .3186.        Notice  of  dishonor  of  foreign  bill:   See 

Presentment  of  bill  of  exoliauge  for  pay-     sees.  32'J5  et  seq. 
ment:  See  sees.  3211  et  seq.  Notice   of  dishonor  generally:   See  sees. 

Presentment  of  negotiable  instruments    3142  et  seq. 
generally:  Sees.  3130  et  seq. 

3207.  Notice  of  dishonor  not  excused  bij  acceptance  for  Jionor. 

Sec  3207.  The  acceptance  of  a  bill  of  exchage  for  honor  does  not  excuse  the 
holder  from  giving  notice  of  its  dishonor  by  the  drawee. 

Presentment  of  bill  of  exchange  and  no-  Notice  of  dishonor:  See  sec.  3231  for  the 
tice,  vyhen  exoiLsed:  See  sees.  .3218-3220.  givino;  notice  of  protest,  and  sections  3142  et 

ExGuse  of  presentment  and  notice  gen-  seq.  for  the  manner  of  giving  notice  of  dishonor 
-orally:  Sees.  3155  et  seq.  generally. 

AKTICLE  Yl. 

PRESENTMENT    FOR   PAYMENT. 

.3211.    Presentment,  when  bill  not  accepted,  where  made. 

Sec.  3211.  If  a  bill  of  exchange  is  by  its  terms  payable  at  a  particular  place, 
.and  is  not  accepted  on  presentment,  it  must  be  presented  at  the  same  place  for 
;paymeut  when  presentment  for  payment  is  necessary. 

Presentment  of  negotiable  instruments  non-payment. — See  a  statement  as  to  the  con- 
ifer payment:  See  sees.  3130  et  seq.  fiict   in  the  authorities  that  prevail  upon  the 

Presentment  for  acceptance:  See  sees,  question  whether,  in  case  of  non-payment,  a 
SlSGetseq.  protest  for  non-acceptance  is  necessary:  Dupr6 

Protest    for  non-acceptance  in  case  of    v.  Richard,  43  Am.  Dec.  223,  in  note. 

'3212.    Presentment  of  hill,  payable  at  particular  place. 

Sec  3212.  A  bill  of  exchange,  accepted  payable  at  a  particular  place,  must 
be  presented  at  that  place  fur  payment,  when  presentment  for  payment  is  neces- 
■  Bary,  and  need  not  be  presented  elsewhere. 

Place  of  payment,  presentment  at:  See  sec.  3131,  subd.  3. 

3213.    Effect  of  delay  in  presentment,  in  certain  cases. 

Sec  3213.  If  a  bill  of  exchange,  payable  at  sight  or  on  demand,  without 
■interest,  is  not  duly  presented  for  payment  within  ten  days  after  the  time  in 
"which  it  could,  with  reasonable  diligence,  be  transmitted  to  the  proper  place 
for  such  presentment,  the  drawer  and  indorsers  are  exonerated,  unless  such 
presentment  is  excused. 

Apparent  maturity  of  bill  of  exchange:  the  roads,  impeding  travel.  That  reasonable 
See  sec.  3134,  ante.  diligence  must  be  used  is  aclinowledged:  Ritchie 

Reasonable  diligence:  See  Broion  v.  Olm-  v.  Bradshaw,  5  Id.  228,  and  cases  hereinafter, 
fted,  50  Cal.  162,  wliere  the  delay  in  presenting  andsecs.  3131and3158.  See  Rediwjtonv.  WoodK, 
a  check  for  payment  arose  from  the  mails  not  45  Id.  406,  for  case  of  delay  not  determined;  see 
connecting,  and  from  the  heavy  condition  of    also  generally  sees.  3131,  3155,  and  note. 

'S214.    Effect  in  other  cases. 

Sec  3214.  Mere  delay  in  presenting  a  bill  of  exchange  payable  with  inter- 
est, at  sight  or  on  demand,  does  not  exonerate  any  party  thereto 

Delay,  when  excused:  See  sec.  3158,  ante,  and  sec.  3219,  post. 

AETICLE  VII. 

EXCXJ8B   OF   PRESENTMENT  AND   NOTICE. 

-8218.   Presentment,  when  excused. 

Seo.  3218.  The  presentment  of  a  bill  of  exchange  for  acceptance  is  excused 
4f  the  drawee  has  not  capacity  to  accept  it. 

562 '  . 


Title  XV,  Chap.  II.]  BILLS  OF  EXCHANGE.  |§  3219-3227 

Excuse  of  pressatment  and  notice,  generally:  See  sees.  3155  et  seq  ,  cmte. 
Delay  in  presentment  of  check;  Sec.  32oo. 

8219.  Delay,  ivhen  excused. 

Sec.  3219.     Delay  iu  the  presentment  of  a  bill  of  exchangfe  for  acceptance  13 
excused  when  caused  by  circumstances  over  which  the  holder  has  no  control. 
Delay,  -when  excused:  See  sees.  3158,  3214,  atite. 

8220.  PrfsentmerH  and  nolice,  xohcn  excused. 

Sec.  3220.  Presentment  of  a  bill  of  exchange  for  acceptance  or  payment,  and 
notice  of  its  dishonor,  are  excuseJ  as  to  the  drawer,  if  he  forbids  the  drawee  to 
accept,  or  the  acceptor  to  pay  the  bill;  or  if,  at  the  time  of  drawing,  he  had  no 
reason  to  believe  that  the  drawee  would  accept  or  pay  the  same. 

See  references  in  note  to  section  3218. 

ARTICLE  VIII. 

FOREIGN   BILLS. 

8224.   Definilions. 

Sec.  3224.  An  inland  bill  of  exchange  is  one  drawn  and  payable  within  this 
state.     All  others  are  foreign. 

ForeiPTi   bills  of  exchange.— Bill  drawn  tcorth,  1  R.  I.  401;  Donenanv.  Wood,  49  Ala. 

in  one  state  on  a  resilient  of  another  is  a  for-  242,  anil  see  note  to  Dupr6  v.  Ridiard,  43  Am. 

eign  bill  of    exchange;    this  question,  at  one  Dec.  218. 

time  in  snme  (loul)t,  is  now  well  settled:  llaUi-  Form  and  interpretation  of  bills  of  ex. 

tluy  V.  McDovgal,  20  Wend.  81;    Commercial  change;  See  sec.  3171. 
Dank  V.   Varnurn,  46  N.  Y.  209;  Aborn  v.  Bos- 

3225.  Protest  necessary. 

Sec.  3225.     Notice  of  the  dishonor  of  a  foreign  bill  of  exchange  can  be  given 

only  by  notice  of  its  protest. 

Dishonor  of  negotiable  instruments  gen-  Cal.  G2G;   Coddinqfon  v.  Davis,  1  N.  Y.  786; 

erally:  See  sees.  3141  et  seq.,  ante.  Townspwl  v.  Lorain  Bank,  2  Ohio  St.  345.  See 

Protest. — For  definition  of    the  word,   see  a  discussion  of  this  subject  quite  extensively  in 

Abbott's  Law  Diet.;  Daniel  on  Neg.  Inst.,  sec.  note  to  Ditprt^  v.  Richard,  43  Am.  Dec.  216. 

929.     Ill  popular  usage  among  commercial  men  Waiver  of  protest  does  not  waive  present- 

tlie  term  has  acquired  quite  an  extensive  sig-  ment  and  notice  in  the  case  of  a  foreign  bill  of 

nification,  and  includes  all  the  steps  necessary  exchange:  Sec.  3100,  ante, 
to  charge  an  iudorser:  McFarland  v.  Pico,  8 

3226.  Protest,  by  whom  made. 

Sec.  3226.  Protest  must  be  made  by  a  notary  public,  if  with  reasonable  dili- 
gence one  can  be  obtained;  and  if  not,  then  by  any  reputable  person,  in  the 
presence  of  two  witnesses. 

Protest,  by  whom  made. — The  custom  of  and  Notes,  2j3.     If  there  is  no  notary  at  the 

merchants  rerjuires,  as  does  the  above  3ecti;)n,  place  where  t!ie  bill  fell  due,  the  hoi  ler  may 

that  the  protest  should  be  made  by  a  notary  have  it  protested  by  any  respectable  inhabitant 

public,  alUhough  this  is  not  indispensible;  in  in  the  presence  of  two  wituesses:   Txld  v.  N'eal, 

many  cases  it  maybe  made  by  others:   Jiiirke  43  Ala.  233;  /'eit  v.  B  ink  of  Kij.,  I  Mon.  91; 

V.  McKay,  2  How.  60;   S.  C,  Bigelow's  Bills  Bank  of  Ky.  v.  Parsley,  3  T.  B.  Mon.  233. 

8227.    Protest,  how  made. 

Sec.  3227.  Protest  must  be  made  by  an  instrument  in  writing,  giving  a  literal 
copy  of  the  bill  of  exchange,  with  all  that  is  written  thereon,  or  annexing  the 
original;  stating  the  presentment,  and  the  manner  in  which  it  was  made;  the 
presence  or  absence  of  the  drawee  or  acceptor,  as  the  case  may  be;  the  refusal 
to  accept  or  to  pay,  or  the  inability  of  the  drawee  to  give  a  binding  acceptance; 
and  in  case  of  refusal,  the  reason  assigned,  if  any;  and,  finally,  protesting 
against  all  the  parties  to  be  charged. 

Protest,  how  made. — It  is  a  rule  of  law,  of  the  place  where  the  I)ill  is  payable:  Rotschild 
applicable  to  forei;,'n  bills  of  exchange,  that  the  v.  Carrie,  1  Q.  B.  43;  Todd  v.  Neal,  43  Ala, 
protest  is  to  be  made  at  the  time,  iu  the  man-  230;  McClane  v.  Filch,  4  B.  Mon.  599;  Tick' 
ner,  and  by  the  persons  prescribed  by  the  law    ner  v.  Roberts,  11  La.  14;  S.  C,  30  Am.  Dec. 

563 


§§  3228-3234  OBLIGATIONS  [Div.  Ill,  Part  IV, 

703;  Ellis  V.  Commprcial  Danl,  7  How.  (Miss.)  the  circumstancea  nnder  which  notice  may  be 

294;   Bank  of  liorhrs.ter  v.  Grni/,  2  Hill  (N.  Y.),  reiiuired  or  dispense' I  with  are  iijcidents  of  the 

227;  Bowen  v.  Newell,  \'^  N.  Y.  29D;  Carter  v.  original  contract,  which  arc  governed   l)y  the 

Union    Bank,    7    Humph.    548;     h'ni/rnoiul   v.  law  of  tlie  place  where  the  bill  is  drawn:  Hay' 

Uolmefi,  11  Tex.   54;  Locke  v.  llnUmj,   '24  Id.  mond  v.  Holmes,  supra. 
311;  but  the  necessity  of  making  protest  and 

3228.  Protest,  ichere  viade. 

Sec.  3228.  A  protest  for  non-acceptance  must  be  made  in  the  city  or  town 
in  which  the  bill  is  presented  for  acceptance,  and  a  protest  for  non-payment  in 
the  city  or  town  in  which  it  is  presented  for  payment. 

Protest,  •wrhere  m^de:  See  note  to  Dupr4  v.  Richard,  43  Am.  Dec.  221;  Daniel  on  Neg. 
Inst.,  sec.  935. 

3229.  Protest,  when  to  he  made. 

Sec  3229.  A  protest  must  be  noted  on  the  day  of  presentment,  or  on  the 
next  business  day;  but  it  may  be  written  out  at  any  time  thereafter. 

Protest  ■when  made.— It  is  now   settled  BankofTenn.,A:'Qai.xt.<\-12;Whaleyv.IImistont 

that  a  protest  must  be  begun,  at  least,  on  the  12  La.  Ann.  585. 

day  when  payment  or  acceptance  is  refused:  Notin3  and  extending  protest. — Noting  is 

Byles  on  Bills,  Sharswood's  notes,  7th  ed.,  2G2;  memorandum  of  the  principal  facts,  and   is  a 

Daniel  on  Neg.  Inst.,  sec.  1)39;  Ch.  Bills,  475.  preliminary  step  to  the  protest;   it  should  be 

A  protest  for  non-payment  cannot  be  made  be-  done   on  the  day  of  t!ie  refusal:  Billiii'jsl;/  v. 

fore  the  <lay  it  is  payable:  Donegan  v.  IVood,  Stale  Bank.  3   Ind.  375;  Commercial   JJntk  v. 

49  Ala.  242.  Bar.sxdale,  3iJ  Mo.  5G3.     The  extension    is  the 

Should  the  day  of  payment  fall  on  a  Sua-  writing  out   of   the   protest:    Daniel    on   Neg. 

day  or  addles  nonjnri  liens,  the  demand  for  pay-  lust.,  sec.  940.     This  formal  drawing  up  of  the 

ment  and  protest  niay  be  niaile  in  some  states  protest  may  be  done  at  any  time  afterwards: 

on  the  day  previous:  Z'o^TTn^fs  V.  //«/'<07i,  5  Biss.  BilUu'jslcy  v.  Stale   Bank,   niipra;   Conunerrial 

57;  C'hamlMrldii  v.  Jfaitlaud,  5  B.  Mon.  443;  Bank  v.  Barkadale,  supra;  Bailey  v.  Dozier,  6 

Offut  V.  Stout,  4  J.  J.  Marsh.  333;    Colms  v.  How.  23. 

3230.  Protest,  when  excused. 

Sec.  3230.     The  want  of  a  protest  of  a  foreign  bill  of  exchang^e,  or  delay  in 
making  the  same,  is  excused  in  like  cases  with  the  want  or  delay  of  presentment. 
Exouse  of  pressntment  and  notice:  See  sees.  3218  et  seq.,  3214. 

3231.  Notice  of  protest,  how  given. 

Sec.  3231.  Notice  of  pi'otest  must  be  given  in  the  same  manner  as  notice  of 
dishonor,  except  that  it  may  be  given  by  the  notary  who  makes  the  protest. 

Notice  of  dishonor,  how  given:  See  anie,  Notice  of  dishonor,  by  v/hom  given:  Sec 
sees.  3142  et  secj.  3142,  aiUe. 

3232.  Wa  iter  of  protest. 

Sec.  3232.  If  a  foreign  bill  of  exchange  on  its  face  waives  protest,  notice  of 
dishonor  may  be  given  to  any  party  thereto,  in  like  manner  as  of  an  inland  bill; 
except  that  if  any  iudorser  of  such  a  bill  expressly  requires  protest  to  be  made, 
by  a  direction  written  on  the  bill  at  or  before  his  indorsement,  protest  must  bo 
made,  and  notice  thereof  given  to  him  and  to  all  subsequent  indorsers. 

No':i3C  of  dis'ionor:  See  seed.  3142  et  seq. 

"Waiver  of  noJ[:;e:  See  sec.  3155,  subd.  4. 

3233.  Declaration  bifore  payment  for  honor. 

Sec  3233.  One  who  paj's  a  foreign  bill  of  exchange  for  honor  must  declare, 
before  payment,  in  the  presence  of  a  person  authorized  to  make  protest,  for 
whoso  honor  h-^  pays  the  same,  in  order  to  entitle  hijn  to  reimbursement 

Payment  for  honor:  See  sec.  3203. 

3234.  Damages  allowed  on  dishonor  of  foreign  hill. 

Sec  3234.  Damages  are  allowed  as  hereinafter  prescribed,  as  a  full  compen- 
sation for  interest  accrued  before  notice  of  dishonor,  re-exchange,  expenses,  and 
all  other  damages,  in  favor  of  holders  for  value  only,  upon  bills  of  exchange 

564 


Title  XV,  Chap.  III.]  PROMISSORY  NOTES.  §§  3235-3245 

drawn  or  negotiated  witliin  this  state,  and  protested  for  non-acceptance  or  non- 
payment. 

Damages  on  dishonor  of  foreign  bill. — In  the  first  of  exc'iange,  with  in'^orest  anl  cost  of 

Pufje,  Bacon  <t  Co.  v.  Warner,  4  Cal.  '.Vdb,  the  i>rotest,    was  paid   to  the  holiler.     Held,  tliat 

Becoiid  of  a  foieigu  bill  of  oxcliange  drawn  liere  the  ilrau er  wa.s  released  from  pu^  inent  of  dam- 

and  jitivable  at  sight  was  duly  [resented  and  ages  for  dishonor  of  the  second, 
protested.    Afterward,  and  before  suit  brought, 

3235.    Bale  of  damages. 

Sec.  3235.  Damages  are  allowed,  under  the  last  section,  upon  bills  drawn 
upon  au}'  person: 

1.  If  drawn  upon  any  person  in  this  state,  two  dollars  upon  each  one  hundred 
dollars  of  the  principal  sum  specified  in  the  bill; 

2.  If  drawn  upon  any  jDersou  out  of  this  state,  but  in  any  of  the  other  states 
west  of  the  Kocky  mountains,  five  dollars  upon  each  hundred  dollars  of  the 
principal  sum  specified  in  the  bill; 

3.  If  drawn  upon  any  person  in  any  of  the  United  States  east  of  the  Rocky 
mountains,  ten  dollars  upon  each  hundred  dollars  of  the  principal  sum  specified 
in  the  bill; 

4.  If  drawn  upon  any  person  in  any  place  in  a  foreign  country,  fifteen  dollars 
upon  each  hundred  dollars  of  the  principal  sum  specified  in  the  bill. 

8238.    Inifresl  on  amount  of  protested  bill. 

Sec.  323G.  Fx'om  the  time  of  notice  of  dishonor  and  demand  of  payment, 
lawful  interest  must  be  allowed  upon  the  aggregate  amount  of  the  principal 
sum  specified  in  the  bill,  and  the  damages  mentioned  in  the  preceding  section. 

3237.  Damages,  how  estimated. 

Sec.  3237.  If  the  amount  of  a  protested  bill  of  exchange  is  expressed  in 
money  of  the  United  States,  damages  are  estimated  upon  such  amount  without 
regard  to  the  I'ate  of  exchange. 

3238.  Same. 

Sec  3238.  If  the  amount  of  a  protested  bill  of  exchange  is  expressed  in  for- 
eign money,  damages  are  estimated  upon  the  value  of  a  similar  bill  at  the  time 
of  protest,  in  the  place  nearest  to  the  place  where  the  bill  was  negotiated,  and 
where  such  bills  are  currently  sold. 


CHAPTER  TIT. 

PROMISSORY  NOTES. 

3244.  Promissory  note,  what. 

Sec.  3244.     A  promissory  note  is  an  instrument  negotiable  in  form,  whereby 

the  signer  promises  to  pa}'  a  specified  sum  of  money. 

A  promissory  note   payable  gsnsrally,  ceived  "  are  not  necessary :  Peo/J^ev,  il/cZ)frmo<, 

but  not,  specifying  any  ])articnlar  time  of   pay-  8  id.  288. 

ment,  is  ducat  once:   //ol  men  v.  West,  17  Cal.  Plao3  of  payment  not  specified:  See  a7Ue, 

G2'.);  Keiien  \.    Feiistennab-r,  24  Id.    iMd;  and  sec.  lUUO. 

see  <iiil(\  sec.  .SO'.)i).     The  meaning  of  a  promis-  Interpretation  of  negotiable  iustrumeut3 

Bory  note  cannot  be   varii'd    by  parol:  And  v.  generally:  See  sees.  30i)'J  et  sec^. 
Mwjnidi'r,  10  lil.  282.     The  words  "value  re- 

3245.  Certain  insiruments  promissori/  notes. 

Skc.  3245.     An  instrument  in  the  form  of  a  bill  of  exchange,  but  drawn  upon 
and  accepted  by  the  drawer  himself,  is  to  be  deemed  a  promissoi'y  note. 
Negotiable  instrument  payable  to  order  of  maker:  See  aule,  sec.  3102. 

565 


§§  3246-3255  OBLIGATIONS.  [Div.  Ill,  Part  IV, 

8246.    JiUl  of  exchange,  lohp.n  converted  into  a  note. 

Sec.  3240.  A  bill  of  exchange,  if  accepted,  with  the  consent  of  tHe  owner, 
by  a  person  other  than  the  drawee,  or  an  acceptor  for  honor,  becomes  in  effect 
the  promissory  note  of  such  person,  and  all  prior  parties  thereto  are  exonerated. 

Acceptor  for  honor:  See  sees.  3203  ct  seq. 

3247.  Certain  sections  applicable  to  notes. 

Sec.  3247.  Chapter  I.  of  this  title,  and  sections  thirty-one  hundred  and 
eighty-one  and  thirty-two  hundred  and  fourteen  of  this  code,  apply  to  promis- 
sory notes. 

Chapter  1  of  this  title;  See  sees.  3086-3165. 

3248.  EJ^ect  of  delay  in  presentment. 

Sec.  3248.  If  a  pi-omissory  note,  payable  on  demand,  or  at  sight,  without 
interest,  is  not  duly  presented  for  payment  within  six  months  from  its  date,  the 
indorsers  thereof  are  exonerated,  unless  such  presentment  is  excused. 

Apparent  maturity  of  a  promissory  note:  See  sec.  3135. 

Presentment,  when  excused:  See,  generally,  sees.  3155  et  seq. 


CHAPTER  IV. 

CHECKS. 

3254.  Check,  what. 

Sec.  3254.  A  check  is  a  bill  of  exchange  drawn  upon  a  bank  or  banker,  or  a 
person  described  as  such  upon  the  face  thereof,  and  payable  on  demand,  with- 
out interest. 

Cheoks.— Modern  decisions  have  placed  sight         The  legal  presiimption  that  a  check  is  drarwn 

checks  and  bills  of  exchange  ou  tliesame  footing,  for  money  due   from  the  drawer:    Ihadley  v. 

excepting  such  difference  as  may  arise  from  the  Reed,  2  Cal.  322. 

custom  of  mercliants:  Miiitura  v.  Fisher,  4  Cal.         Failure  of  bank  on  the  day  the  check  was 

3o;  and  see  next  section.     Such  check,  upon  a  drawn.     Upon  an  issue  as  to  the  liability  of 

bank  in  tlie  place  of   the  drawer's  residence,  the  drawer  of  a  check  on  a  bank  by  reason  of 

need  not  be  presented  on  the  day  of  its  delivery  the  fadnre  of  the  bank  on  the  day  the  check 

by  the  drawer,  b'lt  demand  may  be  made  on  was  drawn,  it  is  for  the  jury  to  decide  whether 

the  next  day,  within  banking  hours:  Shnpson  payment  was  offered  and  refused  by  the  payee 

V.  Pac.  Mitt.  L.  Ills.  C/o.,  44  Id.  139.     And  as  when    he   presented  the   check   on    that  day: 

to  the  presentment  of  bills  of  exchange  i)ayable  Pimpson  v.  Mat.  L.  Jns.  Co.,  47  Cal.  585. 
at  sight  witliout  interest,  see  sec.  3213,  ante.         Forged  check. — The  drawee  of  a  check  is 

Where  a  holder  indorses  a  check  on  presenta-  presumed  to  know  the  signature  of  the  drawer, 

tion  to  the  drawee  for  payment,  he  undertakes  but  not  the  handwriting  of  the  body  of  the  in- 

that  the  prior  indorsements  are  genuine,  and  strument:   Redinr/ton  v.  Woods,  4o  Cal.  40i};  and 

that  he  has  a  good  and  valid  title  to  the  check,  see  that  case  for  a  discussion  of  the  question 

but  does  not  undertake  that  the  check  has  not  upon  whom  loss  must  fall  for  paymentof  a  forged 

been  altered  in  amount:   RedbKjton  v.    Woods,  or  altered  check:  See  also  Surceif  v.    liel's,  F. 

45  Cal.  406.     One  wlio  takes  a  check  after  its  <t  Co.,  5  Cal.   124,  for  bank's  liability   to  pay 

dishonor  takes  it  subject  to  all  the  defenses  to  again    amount    paid   on    forged    indorsement, 

which  it  was  subject  in  the  liands  of  the  origi-  Consult  Pen.  Code,  sees.  470,  476.     Deposit  in 

nal  holder:    Fuller  v.   lIutchvKjs,   10   Id.  .523.  baidc  of  check  and  effect  as  cash  deposit:  See 

See  a  discussion  of  indorsees  in  due  course,  in  Nat.  O.  Bank  v.  McDonald,  51  Cal.  64. 
the  note  to  section  3123,  ante. 

3255.  Biiles  applicable  to  checks. 

Sec.  3255.  A  check  is  subject  to  all  the  provisions  of  this  code  concerning 
bills  of  exchange,  except  that: 

1.  The  drawer  and  indorsers  are  exonerated  by  delay  in  presentment,  only 
to  the  extent  of  the  injury  which  they  suffer  thereby; 

2    An  indorsee,  after  its  apparent  maturity,  but  without  actual  notice  of  its 

dishonor,  acquires  a  title  equal  to  that  of  an  indorsee  before  such  period. 

Subd.  1.     Delay  in  presentment  of  bills  of  exohin^e:  See  sees.  3218-3220. 
Subd.  2.     ludoweain  daa  coard3:  Sjo.  3123,  atU;  and  note. 

566 


TiTLB  XVI.] 


GENERAL  PROVISIONS. 


§§  32G1-32C8 


CHaMER  v. 
bonds,  bank  notes,  and  certificates  of  deposit. 

8261.    Bank  note  negotiable  after  payment. 

Sec.  32G1.     A  bank  note  remains  negotiable,  even  after  it  has  been  paid  by 
the  maker. 


8262.    Eights  of  transferee  after  maturity. 


Section  3262  was  repealed  by  act  approved 
March  30,  1874;  Amendments  1873-4,  2U5;  took 
effect  July  1.  1874. 

Certificates  of  deposit  are  declared  ne;:;oti- 
ableiustiumeiitsbysection3095;  they  areiiilegal 
effect  and  in  substance  promissory  notes:  Wellon 
V.  Adam'i,  4Cal.  37;  Brummaqlm  v.  Tallant,  29 
Id.  503;  Poormaiiv.  Mills,  35  Id.  118.  And 
as  respects  the  rights  and  liability  of  indorsers, 
they  stand  upon  the  same  footing  a.s  bills  of  ex- 
change and  promissory  notes:  Mills  v.  Barney, 
22  Id.  240.  So  a  subsequent  indorser  of  a  cer- 
tificate of  de[)osit  undertakes  that  he  possesses 
a  clear  title  to  the  certificate  deduced  from  and 
through  all  the  antecedent  indorsers,  and  by 
his  indorsement  agrees  to  clothe  the  holder  un- 
der him  with  all  the  rights  which  legally  attach 
to  genuine  indorsements  against  lumself  and  all 
the  antecedent  indorsers:  McMillan  v.  Rich- 
ards, t)  Id.  305. 

In  Cnye  v.  Pdlmar,  IG  Cal.  153,  a  certificate 
of  deposit  for  eight  hundred  dollars  was  in- 
dorsed and  delivered  by  the  payee  for  four 
hundred  dollars  to  one  L.  Payment  was  then 
demanded  and  notice  of  protest  served  on  the 
payee.  Subsequently  L.  transferred  the  certifi- 
cate, and  the  transferee  was  held  entitled  to 
recover  only  the  four  hundred  dollars,  the  cer- 
tificate being  subject  to  all  the  equities  betwe_ea 
the  indorser  and  indorsee. 


Pass-book  not  a  negotiable  Instrument: 

See  Wif'e  v.  Viiicenot,  43  (Jal.  325.  Nor  does 
the  agreement  between  the  bank  and  the  do- 
positor  that  the  book  may  be  transferred  to 
order  impart  negntiable  character  to  it. 

Bonds — coupons.— For  a  very  careful  col- 
lection of  the  cases  upon  the  subject  of  tho 
negoti:ibility  of  coupons  and  of  questions  arising 
out  of  tlieir  transfer,  see  the  note  to  Morris 
Canal  Co.  v.  Fi.sher,  G4  Cal.  428-445. 

The  repeuleil  section  read  as  follows,  and  had 
appended  thereto  in  tlie  conunissioners'  anno* 
tated  edition  tlie  note  whicli  is  here  quoted: 

"A  transferee  of  a  bond,  bank  note,  or  cer- 
tificate of  deposit,  after  its  apparent  maturity 
or  actual  dishonor  within  his  knowledge,  ac- 
quires a  title  eijnal  to  that  of  a  transferee  beford 
such  event."  The  note  was  as  follows:  "  See  i2 
Parsons  on  Notes  and  Bills,  07;  Story  on  Prom- 
issory Notes,  sec  501.  This  section  places 
bonds  and  certificates  of  deposit  upon  tlie  same 
footing  as  bank  bills  in  respect  to  the  effect  of 
a  transfer  after  api)arent  maturity.  To  this  ex- 
tent the  section  modifies  the  rule  of  Brumma* 
g'lm  V.  Tallant,  23  Cal.  503;  see  also  Wellon  v. 
Adams  d:  Co.,  4  Id.  37.  Tho  execution  or  de» 
livery  of  a  certificate  of  deposit  chan'jes  the 
cliaractersof  the  makers  i)f  it  from  custodians  of 
the  funds  to  that  of  debtors:  Naqlee  v.  Palmar, 
7  Id,  543;  McMillan  v.  Richard's.  9  Id.  3G5." 


TITLE   XYI. 
GENERAL  PROVISIONS, 

8238.    Parties  may  waive  provisions  of  code. 

Sec.  32G8.  Except  where  it  is  otherwise  declared,  the  provisions  of  the  fore- 
going fifteen  titles  of  this  part,  in  respect  to  the  rights  and  obligations  of. 
parties  to  contracts,  are  subordinate  to  the  intention  of  the  parties,  when  ascer- 
tained in  the  manner  prescribed  by  the  chapter  on  the  interpretation  of  con- 
tracts; and  the  benefit  thereof  may  be  waived  by  any  party  entitled  thereto, 
unless  such  waiver  would  be  against  public  policy. 

Interpretation  of  contracts;  See  ante,  sees.  1G35  et  seq. 

CG7 


S§  3274-3231  RELIEF.  [Div.  IV,  Part  1, 


DIVISION  FOURTH. 

pAET    I.  IIelief 3274 

II.  Special  Eelations  of  Debtor  and  Ckeditor 3429 

III.  Nuisance 3479 

IV.  MaXIIIS  of  JurJSPKUDEKCE ^.«,...^ 3509 

PART  I. 
BELIEF. 

Title    I.     Relief  in  General ^ 3274 

II.     Compensatory  Relief 3".i81 

III.     Specific  and  Preventive  Relief -.^.......^ 33G6 

TITLE   I. 

RELIEF  IN  GENERAL. 

8274.  Species  of  rdirf. 

Sec  3274.  As  a  general  rule,  compensation  is  the  relief  or  remedy  providecl 
by  tlie  law  of  this  state  for  the  violation  of  private  rights,  and  the  means  of 
Becuring  their  observance;  and  speciHc  and  preventive  relief  may  Le  given  in  no 
other  cases  than  those  specified  in  this  part  of  the  Civil  Code. 

8275.  Relief  in  case  of  forfeit  ure. 

Sec.  3275.  Whenever,  by  the  terms  of  an  obligation,  a  party  thereto  incurs  a 
forfeiture,  or  a  loss  in  the  nature  of  a  forfeiture,  by  reason  of  his  failure  to 
comply  with  its  provisions,  he  may  be  relieved  therefrom,  upon  making  I'uli 
compensation  to  the  other  party,  except  in  case  of  a  grossly  negligent,  willful, 
or  fraudulent  breach  of  duty. 

TITLE  XL 

COMPENSATORY  RELIEF. 

Chapter  I.  Damages  in  General 3281 

II.  Measure  of  Damages 3300 

CHAPTER  I 
DAMAGES  IN  GEXERAi, 

.  Article   I.    General  Principles .SJSl 

II.     Interest  as  Damages .'5-87 

III.    Exemplary  Dajiaues 3.104 

ARTICLE  I. 

general  principles. 
"8281,    Person  suffering  detriment  may  recover  damages. 

Sec.  3281.     Every  person  who  suTr^rs  detriment  from  the  unlawful  act  or 
omission  of  another  may  recover  from  the  person  in  fault  a  comjiensation  there- 
.  for  in  money,  which  is  called  damages. 

508 


Title  II,  Chap,  I.] 


DAMAGES  IN  GENERAL. 


J2S2-32S7 


Damages  must  be  reasonable:  Sec.  "351. 

Parson  suffaring  detriman':  znay  rocovor 
damagaj. — ^^Defeudaut  dug  a  ditch  ou  p'.aint- 
ifif's  laiKl,  and  in  au  action  against  defendant 
to  aljate  theiiitcli  as  a  nuisance,  ami  to  liave  it 
fillcil  U!),  and  for  damages,  it  was  Iield  t!iat 
plaintiir  could  not  recover  as  damages  a  sum 
Bufiicient  to  fill  up  the  ditch,  because  the  cost 
of  filling  it  up  might  exceed  any  injury  result- 
ing from  it  in  its  then  condition,  and  hence 
plaintiff  might  never  fill  it  up.  Damages  could 
be  had  for  the  injury  sustained,  and  nothing 
more:  De  Costa  v.  Massachusclls  Mining  Co., 
17  Cal.  G13. 

The  supreme  court  approved  the  rule  stated 
by  ^Ir.  Justice  Wilde,  in  IFoo.sicr  v.  Proprie- 
tors of  Canal  Dridje,  10  Pick.  547:  "Ii  all 
cases  where  there  is  no  rule  of  law  regulating 
the  assessment  of  damages,  and  the  amount  does 
not  depend  cm  computation,  the  judgment  of 
the  jury,  and  not  the  opinion  of  the  court,  i^  to 
govern,  unlesi  the  damages  are  so  excessive  as 
to  warrant  the  belief  that  the  jury  must  have 
been  influenced  by  partiality  or  prejudice,  or 
Lave  been  juisled  by  some  mistaken  view  of  the 
merits  of  the  case:"  Boycev.  ('ali/.riua  Stage 
Co.,  2d  Cal.  473.     As  to  new  trial  for  excessive 


damages,  etc.,  see  sec.  G37,  a-nd  notes.  The 
fact  th;;t  the  plaintiff?  claim  daraugcj  beyond 
the  just  measure  of  their  right  \y,  nos  a  ground 
for  reversing  the  judgment.  If  plaintiffs  at  the 
trial  offer  testimony  to  prove  damages  which 
they  liad  no  right  to  claim,  defendant  can  ob- 
ject to  its  introduction:  Aithen  v.  A'piidenhull, 
25  Cal.  213.  As  by  the  Political  Code,  section 
3274,  in  judgments  and  executions  the  amount 
thereof  must  be  fctated,  as  near  as  may  be,  io 
dollars  and  cents,  rejecting  fractionf?,  it  is  no 
doubt  proper  to  apply  the  same  rule  to  the 
cL.im  for  damages  in  the  comj)laint. 

Exemplary  <inmag93:  See  sec.  .3294.  Dam- 
ages are  exclusive  of  exemplary  damages  and 
interest  exee;)t  where  tiiose  are  expressly 
mcn;ioned:  Sec.  3">'>7 ,  poi^t. 

L'.mii  of  r330very. — No  person  can  recover 
a  greater  amount  in  damages  for  t!ie  breach  of 
an  obligation  than  he  could  have  gci'ned  by  the 
full  performance  thereof  on  bo'.h  sides,  except 
in  tlio  cases  specidsd  in  t!ie  articles  on  exem- 
plary damages  and  penal  damages,  and  in  sees. 
3319,  3339, '33 10,  and  3358,  poi. 

Dama3e3  for  torts:  Sees.  3:>33  et  seq. 

Damages  for  breach  of  contract:  Seca. 
3300  et  seq. 


3282.    Detriment,  what. 

Sec.  3282.     Detriment  is  a  loss  or  barm  su£ferecl  in  person  or  property. 

"This   word  is  used  in  order  to  avoid  the  there  may  be  loss  without  injury.     Tlie  phrase 

repetition  of  the  words 'loss  or  harm'  in  the  ' Damnum  absque i:>jnria' is  {.\mi\ii\rtr>l3.\vyer3. 

numerous  places  in  which  they  would  other-  The  word 'harm' alone  would  be  i:iade(]uate  to 

wise  occur.     Injury  signifies  the  wrongful  act,  express  all  the  meaning  of  'loss:'"     Couimia- 

and  not  ics  results;  while,  on  the  other  hand,  sionurs'  note. 


S2£ 


Injuries  resulting  or  probable  after  suit  brought. 


Sec.  3283.     Damages  may  be  awarded,  iu  a  judicial  proceeding,  for  detriment 
resultiug  afcer  the  commencement  thei'eof,  or  certain  to  result  iu  the  future. 

Recovery  of  damages  since  suit  brou3!it:     Pradcr  v.  Grimm,  13  Id.  585:"   Commission- 
"Drcio  V.  Sixth  Avenue  Ii.  H.,  23  N.  Y.  40.     era'  note. 

"Where  there  i3  proof  of  damages,  the  amount  is  In  a.i  action  for  waste  pending  an  action  of 
Bimp'y  within  tlio  province  of  the  j.iry.  The  forcible  entry  an  1  detainer,  the  Eupreme  court 
supreme  court  will  not  examine  t'.ie  proof  or  hell  the  ru'.e  to  be  tliat  the  proof  of  d  images 
declare  tliat  the  evidence  was  insuTicient  to  might  extend  to  a'l  matters  up  to  verdict 
justify  the  verdict:  Bartlett  v.  I/o'jdcn,  3  Cal.  which  were  the  natural  result  of  the  previous 
6S;  iJraI.e  V.  Palmer,  4:  Id.  11.  Proof  of  dam-  injury:  Ulcks  v.  II'Trinij,  17  C.d.  5'JO.  But 
ages  may  extend  up  to  the  time  of  verdict  of  prospective  damages  can  ha  allowed  on'y  when 
all  facts  wliieh  naturally  flow  from  t!io  injury     it  appears  that  the  party  will  besibjccted  to 


complained  of:  Hicks  v.  Ilerrimj,  17  Id.  533. 
Loss  (f  time,  value  of  services,  and  wages  of 
employees  are  not  remote,  but  proximvte  and 
im.iiediate,  damages:  Kenyoii  v.  GwlaH,  3  Id. 
257.  Counsel  fees  for  dissolving  injunction  not 
recoverable  unless  paid:  Prader  v.  Grimm.  23 
Id.  1;    Wilson  v.  McEvoy,  25  Id.  IGO;  see  also 


the  parcieular  Ijss  or  injury  for  wliicli  lie  <le- 
mm  1 -J compensation:  D'-Coxtav.  Mcvss.  M.  Co., 
Id.  G13.  Taey  will  not  be  allowed  in  an  action 
for  the  breacli  of  a  contract  for  tiie  sale  of  mill- 
ing mac!iincry: /ortftj  v.  jVo^A/'o^j,  1  West  Coast 
Rep. 'J70(Col.). 


ARTICLE  II. 

INTEREST   AS   DAMAGES. 

8237.    Prn^on  entitled  to  recover  damages  mag  recover  interest  thereon. 

Sec.  32S7.     Every  person  who  is  entitled   to  recover  damages   certain,  or 

capable  of  being  made  certain  by  calculation,  and  the  right  to  recover  which  is 

vested  in  him  upon  a  particular  day,  is  entitled  also  to  recover  interest  thereon 

from  that  day,  except  during  such  time  as  the  debtor  is  prevented  by  law,  or 

by  the  act  of  the  creditor  from  paying  the  debt. 

IntSTtst  ai  dimages. — Ou  appeal  from  but  in  tlie  absence  of  any  statute,  had  been 
judgment  on  award  of  re'erej,  the  court  liel  I  allo've  I  by  way  of  damages.  Fro;a  t!ii<  it  was 
that  interest  is  generally  regulated  by  statute,     not  to  bo  inferred  that  au  extraordinary  rate  of 

5G9 


§§  3288-3200 


itELtHlT. 


[Div.  iV,  Part  t. 


interest  should  in  any  case  be  pcnrtitted,  but 
that,  in  the  absence  of  statutes,  as  a  rule  for 
equitably  adjusting  the  amount  of  damages,  the 
usual  annual  rate  of  interest  might  be  adopted: 
Davis  V.  (li-eelij,  1  Cal.  422.  By  the  words  "legal 
interest,"  found  in  a  statute,  is  to  be  understood 
the  rate  of  interest  prescribed  by  law,  in  the 
absence  of  special  agreement,  at  the  date  of  the 
passage  of  t!ie  act:  Deals  v.  Amador  Counfy,  35 
Id.  C33.  This  opinion  is  probably  applicable  to 
the  word  "interest"  as  used  in  the  above  sec- 
tion. As  to  what  is  the  legal  rate,  see  sec. 
1917,  anff. 

In  a  contract  between  two  parties,  in  which 
it  is  conditioned  that  one  shall  advance  the 
necessary  funds  in  the  execution  of  the  contract 
and  the  other  his  services,  skill,  and  experience, 
and  that  each  sliall  receive  an  equal  portion  of 
the  profits,  the  party  advancing  the  money  is 
not  entitled  to  interest  on  the  same  in  the  ab- 
sence of  any  agreement  that  he  should  receive 
interest:   Tirnll  v.  Jones,  39  Cal.  G3o. 

In  an  action  to  recover  Wages  foi*  work  and 
labor,  interest  could,  before  the  code,  only  be 

3283.    In  actions  other  than  contract. 

Sec.  3288.  In  an  action  for  the  breach  of  an  obligation  not  arising  from 
contract,  and  in  every  case  of  oppression,  fraud,  or  malice,  interest  may  be 
given,  in  the  discretion  of  the  jury. 


recovered  from  the  time  of  filing  the  complaint: 
McFaddeii  v.  Crawford,  39  Cal.  G02,  0(33.  This 
section  .32S7,  supra,  would  seem  to  give  thd 
plaintiff  interest  on  such  a  claim  from  t!in  duo 
date  thereof.  And  in  Mix  v.  Miller,  57  Cal. 
3'>0,  in  an  action  of  quantum  meruit.,  the  court 
allowed  interest  from  the  day  the  demand  for 
his  services  became  due.  So,  in  replevin,  the 
court  said:  "It  was  not  erroneous  to  allow  in- 
terest by  way  of  damages,  on  the  va'ue  of  the 
hay  from  tlie  day  it  was  wrotigf  idly  taken  from 
the  plaintiffs:  Kelly  v.  McKibben,  ol  LI.  192; 
Freeborn  v.  Norcross,  49  Id.  313;  Parje  v.  Fowler, 
39  IlI.  412:"  Schmidt  v.  Nunun,  03  Id.  371. 
Where  plaintiff's  claim  was  an  uncertain  and 
unliquidated  demand,  and  the  amount  due 
could  not  be  ascertained  from  the  face  of  the 
contract,  but  was  to  be  settled  by  process  of 
law,  the  court  held  that  interast,  eo  nomine, 
could  not  be  allowed:  Dradj  v.  Wilcoxson,  44 
Id.  245. 

Interest  in  actions  for  conversion:  See 
sec.  3330. 


Interest  in  actions  es  delicto. — Where 
the  jury  rendered  a  verdict  for  the  value  of 
the  property,  with  "legal  interest"  thereon 
from  the  time  of  the  seizure  by  the  sheriff  to 
ihe  date  of  the  verdict,  and  damages  in  the 
sum  of  fifty  dollars,  the  court  said  that  section 
200  of  the  practice  act,  which  was  in  force 
when  the  action  was  brought,  authorized  the 
recovery  of  damages  for  the  detention  of  per- 
sonal property.  But  a  party  was  not  entitled 
to  a  gross  sum  for  such  damages,  and  to  in- 
terest upon  the  value  of  the  property  from  the 
time  it  v/as  taken.  Interest,  in  such  case,  was 
given  for  damages;  and  if  allowed  in  ad<lition 
to  a  gross  sum  fur  damages,  it  would  amount 
to  double  damages:  Freeborn  v.  Norcross,  49 
Cal.  314.  If  the  plaintiff  in  replevin  takes 
possession  of  the  property  wiien  the  suit  is 
commenced,  and  the  jury  on  the  trial  find  for 
the  defendant,  and  assess  the  value  of  the 
properly  at  a  time  subsequent  to  the  taking, 
they  cannot  add  to  this  value  interest  from  the 
time  of  the  taking  up  to  about  tlie  time  the 
value  was  assessed:  At/ierton  v.  Fowler,  46  Id. 
323. 

And  for  oppression,  fraud,  or  malice,  interest 
discretionary  with  jurj':  Wilsoa  v.  Conine,  2 
Johns.  230;  JJissel  v.  Hopkins,  4  Cow.  53;  Hyde 


V.  Stone,  7  Wend.  354;  Baher  v.  Weller,  8 
Wend.  504;  Dillerback  v.  Jerome,  7  Cow.  294; 
Beals  V.  Guernsey,  8  Johns.  440;  Cunningham 
V.  Dor^e;/,  G  Cal.  20.  Vindictive  damages  may 
be  given  in  a  civil  action  for  personal  injury, 
though  the  act  be  punishable  by  criminal  prose- 
cution: Wilson  V.  Middleton,  2  !<.].  54.  This 
rule  ap'dies  as  well  to  officers:  Nightingale  v, 
Scannell,  IS  Id.  315.  For  trespass  not  mali- 
cious, exemplary  or  vindictive  damages  cannot 
be  recovered:  Selden  v.  Cashman,  20  Id.  58. 
Otlicrwise  where  these  ingredients  exist:  Dorsey 
V.  Maidove,  14  Id.  553.  If  aggravating  cir- 
cumstances are  shown  to  increase  damages,  all 
circumstances  and  acts  explanatory  of  motives 
and  inttntion  may  be  shown  in  rebutta  :  Id. 
It  is  no  defense  that  the  plaintiff,  by  doing  au 
act  amounting  to  a  trespass  to  defendant's 
property,  could  have  avoided  the  injury:  Wolf 
V.  St.  Louis  I, id.  W.  Co.,  15  Id.  319.  The  prin- 
cipd  is  responsible  for  the  wanton  and  mali- 
cious acts  of  the  agent,  if  within  the  scope  of  his 
autliority,  but  not  otherw'ne:  Kline  v.  C.  P. 
R.  li.,  37  Id.  4DS;  Needham.  v.  S.  F.  <t  S. 
J.  R.  R.  Co.,  Id.  409;  Tarnn-  v.  ^V.  D.  cfr  M. 
R.  R.  Co.,  31  Id.  594;  Mendelsohn  v.  Anaheim 
Li.ihter  Co.,  40  Id.  657. 
In  trover  and  conversion:  See  sec.  3333. 


8283.    Limil  of  rate  hy  contract. 

Sec.  3283.  Any  legal  rate  of  interest  stipulated  by  a  contract  remains  charge- 
able after  a  breach  thereof,  as  before,  until  the  contract  is  superseded  by  a 
verdict  or  other  new  oblififation. 


Intere3t  aocord'n^  to  contract,— This 
rule  lias  been  estaldished  in  California  by  stat- 
ute: Koh'er  v.  Smith,  2  Cal.   597.     Tlie  com- 


mon-law rule  is  otherwise:  Compare  Lawrence 
V.  Leake  d:  Watts  Orphan  House,  2  Denio,  577. 


3290.    A/^cpptance  of  principal  waives  claim  to  interest. 

Sec.  3230.     Accepting  payment  of  the  whole  principal,  as  such,  waives  all 
claim  to  interest. 


670 


Title  II,  Chap.  I.] 


DAMAGES  IN  QEXERAL- 


13204 


ARTICLE  III. 


EXEMPLARY   DAMAGES. 


8294.    Exemplary  damages,  in  what  cases  allowed 

Sec.  3294.  lu  any  action  for  the  breach  of  an  obligation  not  arisin^^  from 
contract,  where  the  defendant  has  been  guilty  of  oppression,  fi'aud,  or  malice, 
actual  or  presumed,  the  jury,  in  addition  to  the  actual  damages,  may  give  dam- 
ages for  the  sake  of  examfile,  and  by  way  of  punishing  the  defendant. 

Damages  for  wrongs,  generally:  See  sees,     a  correspondent  in  G  Cent.  L.  J.  74;  and  in  a 


3333,  /)  ■■it,  ct  se(|. 

Penal   damages: 
seq. 


See  post,    sees.    3344    et 


Exemplary  damages,    generally. — While 


very  careful  and  exhaustive  opinion  delivered 
hv  Mr.  -Justice  Foster  in  Fay  v.  Parker,  53 
X.  II.  342. 

Exemplary   damases  in   California:    See 


It  is  the  ceiiLral  iilea  of  the  law  of  damages     also  in  note  to  sec.  32SS,  rt«^c.    The  (question  of 


that  they  are  awarded  hy  way  of  conipensa 
tion  (see  note  to  Mi'vrilU  v.  Tariff  Mj'<j.  Co.,  27 
Am.  Dec.  GS4),  there  are  many  cases  of  wrong 
of  such  character  that  it  is  apparent  for  tliem 
mere  compensation  is  not  aderjiiate  as  a  repa- 
ration for  tlie  injury  they  occasion.  It  is, 
therefore,    well   settled   that  wherever    a  tort 


allowing  punitive  damages  for  wrongs  punish- 
al)le  criiniiially  is  one  of  considerable  perplexity, 
and  is  referred  to  more  particularly  hereinafter. 
In  this  state,  however,  it  was  determined  at  a 
very  early  date  that  for  personal  injuries  for 
which  a  criminal  prosecution  might  iiave  l)een 
brought,  vindictive  damages  were  recoverable 


afFectiug  the  person  or  property  of  another  is  in  a  civil  action:  Wilson  v.  MiddletDii,  2  dd.  oi. 

committed   frauduhmtly,  maliciously,  or   wan-  For  wrongful  injuries  to  animals,  being  sub- 

tonly,  not  only  are  tlie  actual  damages  result-  jects  of   pro;>erty,  committed   willfully  or  by 

iug  therefrom  recovei'able,  but  also  vindictive  gross  negligence,  in  disregard  of  luimanity,  ex- 

or  exemplary  damages  wid  be  awarded  to  i)un-  emplary  damages  may  be  given:  See.  3340.     It 


ish  the  offender,  and  deter  others  from  lilie 
oflfeuses:  WUionv.  Mid  /Iclon,  2Cjil.  54;  Mooc/yv. 
MciJomnd,  4  Id.  i:'.)7;  Ni  ilitimidkv.  Scimnieli,  18 
1<1.  315;  Z>or.sv7/  v.  Mnnhve',  14  Id.  558;  Sddcn 
V.  Cashnvtn,  20  Id.  5l];  Wade  v.  Thayer,  4011. 
57S;  Turner  v.  N.  B.  <t-  M.  R.  U.  i'o  ,  34  Id. 
504;  Brown  v.  Eraw^,  8  Saw.  490;  Jiobiwfon  v. 
Western  etc.  /.'.  B.  Co.,  48  Cal.  400;  Bussetl  v. 
Denni<on,  45  Id.  Xu;  1  Sutherland  on  Dam- 
ages, 710  et  seq.;  Sedgwick  on  Damages,  sees. 
SS,  454,  etseq.;  Wood's  Mayne  on  Dauiages,  03. 


was  held  thatexemidary damages  mightbegiven 
for  a  wanton,  malicious,  and  unprovoked  assault 
upon  t!ie  person,  in  W<tde  v.  TUoyer,  40  Cal. 
585.  And  that  exemi)lary  ilamages  have  been 
awarded  in  actions  for  tiie  negligently  occa- 
sioning the  death  of  an  infant,  sec  Myers  v. 
San  Francisco,  42  Id.  215.  But  in  an  action 
for  taking  plaintiff's  goods  in  a  former  action, 
the  judgment  under  which  they  were  seized 
being  invalid,  the  court  held  that  the  fact  of 
the  invalidity  of  the  judgment  was  not  sulfi- 


In  Brown  v.  Erans,  supra.  Judge  Sabin  states  cient  to  warrant  the  conclusion  that  the  seizure 
the  rules  comprehensively  with  respect  to  ex-  was  malicious;  the  defendants  acted  in  the  mat- 
emplary  damazes  in  personal  actions.  He  says:  ter  under  the  advice  of  counsel,  and  there  was 
"It  may  be  laid  down  as  a  general  proposition  no  reason  for  supposing  that  they  either  knew 
of  law,  elementary  in  character,  that  in  all  this  or  suspected  that  the  judgment  was  invalid. 
class  of  cases  of  personal  torts,  'vindictive  The  seizure  was  undoul)tedly  a  hardship  upon 
actions,'  such  as  assault  and  battery,  slander,  the  plaintiff,  but  the  court  below  acted  prop- 
libel,  seduction,  crim.  con.,  malicious  arrests  erly  iu  refusing  to  allow  exempluiy  damages: 
and  prosecutions,  seizure  of  goods,  etc.,  where  Selden  v.  Caslunan,  20  Id.  07.  AVhere,  in  an 
the  elements  of  fraud,  malice,  gross  negligence,  action  on  a  contract  for  conveyance  of  a  pas- 
cruelty,  oppression,  brutality,  or  wautonness  senger,  the  carrier  was  guilty  of  acts  of  willful 
intervene,  exemplary  or  punitive  damages  may  oppression,  the  court  said  it  would  be  a  re- 
be  recovere  1  from  the  defendant.  The  author-  jiroach  to  the  law  if  nothing  could  lie  recovered 
ities  su[iporting  this  proposition  are  too  numer-  but  the  mere  pecuniary  loss  i-esulting  from  tlie 
ous  to  cite  or  review  here.  An  examination  of  breach  of  contract:  Jones  v.  Cortes,  17  Id.  495. 
a  few  of  tiie  authorities  will  establish  the  fact  If  the  i)roprietor  of  a  stage-coach  shoul  i  wan- 
that  this  li;is  been  the  settled  law  of  this  coun-  tonly  and  maliciously  overturn  it,  with  the  in- 
try  for  more  than  one  hundred  years,  and  that  tent  to  kill  or  inflict  l)0(lily  injury  upon  a  pas- 
such  is  now  the  law  iu  nearly  all  the  states  of  senger,  in  an  action  by  the  passenger  the  jury 
the  Union.  Nebraska,  I  believe,  is  a  solitary  miglit  give  punitive  damages.  In  like  manner, 
exception  to  tiie  rule."  For  a  discussion  of  if  a  family  picture,  having  no  appreciable 
this  question,  p  irticularly  as  affecting  damages  ma'ket  value,  be  delivered  to  a  common  carrier 


for  injuries  to  property,  see  the  note  to   Mer- 
rills V.  Tariff  M/j.  Co.,  27  Aui.  Dec.  GS5. 

Notwitlistandnig  it  is  now  settled  that  ex- 
emplary or  punitive  damages  are  allowable  as 
stated  above,  yet  the  doctrine  ha-i  been  very 
ably  couiltatel.  Tiioso  who  desire  to  follow  the 
history  of  this  controversy  are  referred  to  Mr. 
Sedgwic'.i's  work  on  damages  for  tiie  most  co  n- 


to  be  trausported  for  hire,  and  if  he  wantonly 
destroy  it,  the  dam»ge3  would  not  l)e  conlined 
to  the  mere  money  value  (^f  the  picture.  But 
though  the  principal  is  lial)lo  f(M*  the  actual 
damage  caused  by  the  act  of  his  agent  done  in 
the  usual  course  of  his  employment,  he  is  not 
responsible  for  wanton  an  I  milici  lus  damage 
<lono   by   the   agent   without   the  consent,  ap- 


plete  argument  iu  favor  of  the  doctrine,  and  to  p'-oval,  or  subsequent  ralihcatiou  of  t  le  pnn- 

2CIreeid.  Ev.,  sec.  253,  and  note.  Field  on  Dam-  cipal:    '/'nrncr  v.  N.  B.  d- .'J.  A*.  A\  Co.,  34  Id. 

ages,  28,  where   the   opposite  view   is   enter-  ^'Ji;  Mi-udelsohn  v.  Ana/teini  Lj/der  Co.,  40  Id. 

tained.     Tlie  doctrine  is  also  comlemned  iu  an  Gol. 

able  article  iu  20  Am.  L.  Ueg.,  N.  S.,  270,  by  In  an  action  for  breaking  and  entering  th« 

571 


§  3300 


RELIEF. 


[Div.  IV,  Part  I, 


{)laintiff 's  rooms,  and  injuring  and  destroying 
lis  property,  tlic  jury  were  instructeil  that  in 
awardini^  excini>lary  (damages  they  might  take 
intoconsi(lt;iatio<i  tiie  expenses  which  the  plaint- 
iff had  iucuiied  al)oat  the  business  in  and 
abont  tiie  litigation;  that  the  amount  liad  not 
been  proved,  l>uL  that  their  knowledge  t)f  such 
matters  would  cnaMe  them  to  arrive  at  some- 
thing like  a  just  calcidation  as  to  what  sliould 
be  allowed  as  o^anscl  fres,  legal  expenses,  and 
other  expenses.  It  was  held  that  the  instrnc- 
tion  was  erroneous:  Falk  v.  Waterman,  49  Cal. 
225. 

An  o'ficer  acting  in  the  discharge  of  his  offi- 
cial (Uitios  is  no  less  responsible  tor  the  conse- 
quences of  a  malicious  act  than  a  private  person, 
and  tiie  efToct  of  a  different  rule  would  be  to 
turn  loose  up.m  every  cnMiuuiuity  a  set  of 
licensjd  wrong- lo3rs:  Nhjlit'mgale  v.  ScammelL 
18  0  1.  .*^  .-^ 

It  Vi  error,  liowever,  to  instruct  the  jury  that 
exemplary  (tamag;-s  may  be  given  Un-  wrongi'ul 
taking  of  propeily,  where  such  taking  is  wan- 
ton and  nuUiciou-?,  if  there  is  no  e^'idence  that 
the  taking  was  of  that  character:  JJlrshb^Tij  v. 
Str'i  !(.■«,  ()4(-".d.  -Hi. 

Essm-olary  damages  for  act  punishable 
crimiually. — There  are  many  decisions  which 


hold  that  damages  are  never  recoverable  by 
way  of  punisliment  or  example  for  any  wrong 
which  is  punislialile  criminally,  such  as  assault 
and  battery,  malicious  trespass,  etc.:  See  cases 
collecfccd  in  tlie  note  to  Austin  v.  Wilsov,  50 
Am.  Dec.  770.  The  editor,  in  that  note,  sliow3 
that  even  where  the  above  rule  prevads,  "lib- 
eral "  damages  are  to  be  allowed  by  way  of  com- 
pensation, and  points  out  that  in  the  actual 
award  by  the  ju'-y  there  can  be  very  little  diifer- 
ence  between  the  "  liberal  "  allow;ince  pcrnus- 
sible  under  the  above  doctrine,  and  exc:nplary 
damages  which  thegreat  massof  autlioritics  now 
concur  in  holding,  may  be  recovered  in  civil  ac- 
tions for  injuries  criminal  in  their  nature.  To 
the ilecisions collected  by  Wood's  MaynconDara- 
ages,  50,  note,  and  1  Sutherland  on  Damages, 
7oS,  in  favor  of  giving  such  punitive  damages, 
tliere  are  added  by  the  annotator  in  the  note  to 
Auxtia  V.  Wilson,  supra,  many  recent  adjudica- 
tions. In  WHs-'U  V.  Middleion,  2  Cal.  54,  this 
state  declared  that  exemplary  damages  in  such 
cases  v.cre  recoverable,  the  view  which  now 
generally  prevails. 

Principal  s  liability  in  exsmplary  dam- 
asks f^r  aots  of  agent:  See  note  to  I/orjaa  v. 
Providence  li.  R.  Co.,  02  Am  Dec,  379-389. 


CHAPTER  IL 

MEASURE  OF  DAMAGES. 

Akticle    I.    Damages  FOR  Breach  OF  Contract ^.^..^...^,. .^...  3300 

II.     Da.maoes  for  Wrongs 3333 

III.  Tk-nal  Dam.\ges 3344 

IV.  General  Provisions , .^ ....  ^. ...... .  3353 


ARTICLE  I. 
damages  for  breach  of  contract. 
8333.    SFi'ttsure  of  damages  on  breach  of  contract. 

Sec.  3300.  Foi*  the  breach  of  au  obligatiou  arising  from  contract,  the  meas- 
ure of  damages,  except  where  otherwise  expressly  proviJeJ  by  this  code,  is  the 
amount  which  will  compensate  the  pxrty  aggrieved  for  all  the  detriment  prox- 
imately caused  thereby,  or  which  in  the  ordiuarj'  course  of  things  would  be 
likel}'  to  result  therefrom.  [Amendnient,  approved  March  30,  1874;  Amendments 
1873-4,  205;  took  effect  July  1,  1874.] 


The  ori3inal  ssotion  contained  this  quali- 
fying clause,  introduced  after  "thereby:" 
"  Which  the  party  in  fault  liad  notice,  at  tlie 
time  of  entering  into  the  contract,  or  at  any 
time  before  the  breach  and  while  it  was  in  his 
power  to  perform  tlie  contract  upon  his  part, 
would  bo  likely  to  result  fro.n  sucli  breach." 
This  clausi',   omitted  by  the  code  examiners, 


ages  for  revoking  submission  to  arbitration,  see 
sec.  1293,  Codi  Civ.  Proc.  Where  plaintiff 
w  IS  employed  by  defendants  to  make  certain 
alterations  on  a  steam-engine,  tlie  dcfemlants 
agreeing  that  in  tha  event  of  a  certain  result 
boing  attained  by  such  aUerati.)ns  they  would 
pay  t!ie  plaintiff  one  thousand  dol'ar.s,  plaintiff 
to  forfeit  all  compensation  for  labor  or  r.iate- 


distingui  bed  the  measure  of  damages  in  cases     rials  if  the  alterations  did  not  produce  the  de 


of  bre-ich  of  coitract  from  that  adopted  in  ac 
tions  for  torts  in  the  particular  of  knowljd  ,'e 
of  the  daniagi!  that  would  result:  See  sec.  3.J33. 
Brescia  of  coutrajt— In  an  action  for  work 
done  un  ler  a  co.iti-act,  and  for  dama  ,'es  for  nob 
allowii)'^  plaintiiF  to  complete  it,  the  rule  of 


sired  result,  the  nature  and  extent  of  the  alter- 
ati ms  bein^  L'ft  entirely  to  the  option  of  the 
p'aintitf,  and  in  the  progress  of  the  work 
plaintiff  atte, noted  to  rem'>ve  a  certain  copper 
pipe  Ijjlon  ;ing  to  the  engine  for  the  purpose  of 
making  alterations  in  it,  but  was  prevented  by 


damages  wa-s  held  to  be  tlie  value  of  the  l.ibor  defeu  lant,  and  plaintiff  then  abandoned  the 
pei-formel,  and  tlie  amount  of  profit  which  work;  and  plaintiff  had  judgment  below  for  the 
could  fairly  ha\e  iieen  derived  from  the  labor  full  amount  named  in  the  contract,  and  defend- 
left  unparforined  l)y  the  act  of  the  defendant:  ants  appealed — the  supreme  court  held,  alfirm- 
fJminmijhxm  v.  Dorsey,  G  CaL  21.     As  to  dam-  ing  Baldwin  v.  Bennett,  4  Cal.  392,  that  where. 


672 


Title  II,  Chap.  II  ] 


MEASURE  OF  DAMAGES. 


§§  3301,  3302 


from  tlie  nature  of  the  contract,  it  is  .mt  prac- 
ticable to  asrcTtaiii  the  amount  of  dainr.ges 
sustained  l)y  a  lireach  of  contract,  tlie  measure 
is  the  price  agreed  to  be  paid,  and  that  as  it 
was  impossible  to  arrive  at  tlie  precise  amount 
of  damage  sustained  by  plainliff,  the  rule 
adopted  by  t!ie  court  below  was  tlie  only  one 
applicable  to  the  contract,  and  judgment  was 
aI13rni>-d:  McMillan  v.  JHchards,  9  Id.  3o5. 

An  action  was  brouglit  upon  an  express  con- 
tract to  pay  the  ijlaintifF  a  certain  fee  for  legal 
services,  with  a  condition  that  certain  property 
in  question,  the  Tuolumne  llyilraulic  Associa- 
tion Ditcli,  sliould  be  secured  to  the  defendant. 
Services  were  rendered  by  the  plaiutifT,  under 
the  contract,  and  pending  the  litigation  the 
defendant  settled  the  claim  anil  conveyed  by 
deed  his  interest  in  the  property  without  the 
advice  or  knowledge  of  the  plaintiff,  who 
claimed  to  be  entitled  to  the  sum  agreed  ujion 
by  the  parties.  The  defendant  contenled  that 
the  plaintiff  was  only  entitled  to  recover  what 
his  services  were  worth,  without  regard  to  the 
contract.  The  jury  found  for  the  plaintilf  five 
thousand  dollars,  and  judgment  biing  entered 
accorilingly,  defendant  appealed.  The  court 
said  the  genernl  mile  as  to  the  measure  of  dam- 
ages in  an  action  for  l)reach  of  contract  was  not 
the  whole  price  agreed  to  be  paid,  but  tlie  actual 
loss  sustained,  wiiich  would  consist  of  the  value 
of  the  services  rendered,  and  the  damage  sus- 
tained by  the  refusal  to  allow  performance  of 
the  rest  of  t!ie  contract.  To  this  rule  tliere 
were,  however,  some  exceptions.  Where  from 
the  nature  of  the  contract  (as  in  this  case)  no 
possible  mode  was  left  of  ascertaining  the  dam- 
age, tiiere  would  be  presented  tiie  anomalous 
case  of  a  wrong  without  a  remedy,  unless  tlie 
only  measuro  of  damages  which  remained  was 
ad  pted,  and  that  was  the  price  agreed  to  be 
paid.  Without  this  justice  would  lie  defeal^ed, 
and  parties  encouraged  to  vio'ate  their  con- 
tracts of  siniihir  cliaracter.  The  defendant  not 
only  lirokc  his  contract,  but  also  dc-irived  t!ie 
party  of  showing  the  amount  of  injury  under 
the  ;  eneral  rule.  He  could  not  complain  that 
a  different  rule  was  invoked,  when  it  was  tlie 
only  one  left  to  make  him  responsible  for  l.is 
want  of  good  faith:  JJaldivhi  v.  Bninrtt,  4  Cal. 
393;  Hunt  v.  Test,  8  Ala.  713.  Parties  whose 
services  liave  been  refused  when  offered  accord- 
ing to  their  contract  may  not  refuse  eni'  loy- 
ment  from  others  and  insist  upon  the  payment 
of  the  full  contract  price,  but  slioull  ]irotect 
theuiseU'cs  from  loss,  so  far  as  it  may  be  done 
by  reasonable  exertions:  Uttpr  v.  I'/mpman,  .33 
Cal.  004,  OGo;  see  notes  to  Cutler  v,  Poicell,  2 
Smith's  Lead.  Cas.  1. 


Where  a  contract  for  building  a  dam  and 
guaranteeing  it  to  stand  for  live  years  after 
completion,  and  the  payment  of  installments 
thtrefor  as  the  work  ])rogressed,  proviiled  that 
if  within  the  live  years  it  washed  awa}'  it  was  to 
bo  rebuilt  or  the  installments,  or  a  pioportion- 
al)le  part  thereof,  according  to  the  time  the 
dam  stood,  should  be  refunded,  it  was  held 
that  the  rule  of  dauiagcs  laid  down  by  the  con- 
tract had  reference  solely  to  the  guaranty,  and 
that  damages  for  failure  to  build  at  all  must  be 
asceitaiiied  l)y  the  ordinary  rules:  lleedy  v. 
Smith,  42  Cal.  24.1 

For  other  illustrations  of  damages  recover- 
able  on  breach  of  contract,  see  Bniifield  v. 
Marka,  oG  Cal.  18."),  breach  of  contract  by  pur- 
chaser frori  mortgagor  to  hold  him  harmless 
from  personal  judgment  on  foreclosure,  where 
the  amount  of  the  deficiency  was  held  the 
measure  of  damages;  Taylor  v.  N.  P.  C.  It. 
li.  Co.,  Id.  317,  breach  of  agreement  to  con- 
struct road  and  build  fences,  the  cost  of  so 
doing  held  the  measure;  C'lnnmiiii/s  v.  Dudley, 
GO  Id.  383,  where  the  purchaser  of  a  horse 
which  was  delivered  failed  to  carry  out  his 
agreement,  the  value  of  the  horse  fixed  in  the 
agreement  is  the  measure. 

Breach  of  executory  contract. — Upon  a 
breach  of  an  entire  executory  contract  for  work 
and  labor  and  materials,  or  the  bke,  the  injured 
party  ha^  immediate  right  of  action,  and  may 
recover  his  fall  damages  upon  the  whole  con- 
tract wi  Jiout  waiting  for  the  lapse  of  the  full 
time  required  for  performance,  and  without 
tendering  further  performance  from  time  to 
time:  IJcd<'  v.  Trotd,  3a  Cal.  24-',  24.3,  and 
note  to  Muxterton  v.  Miryov  of  DrooUyi,  42 
Am:  Dec.  48.  Loss  of  profits  and  advantages 
which  arc  the  immediate  result  of  theexi'cutory 
contract,  and  which  must  jiavebcen  in  the  con- 
templation of  the  parties  when  it  was  entered 
into,  arc  a  propei-  element  of  damages:  Stoddard 
V.  'J'rea/well,  '2Q  Cal.  307;  Uitn'  v.  Chapman, 
oS  Id.  G()4;  and  same  note,  .tnjira. 

Servant  VTTOujrfnxy  disjhar^ed  before 
expiration  of  term  of  service:  Sec  Stoihlard 
V.  Trradirrll,  20  Cal.  307;  and  a  very  complete 
note  to  JJecamp  v.  Hewitt,  43  Am.  Dec.  205- 
214. 

Counsel  fsea  paid  to  resist  an  injunction 
cannot  lie  recovered  unless  they  have  b-een 
paid:  Wi'non  v.  McEcoy,  2j  Cal.  IGO:  Pntdor 
v.  Grimm,  23  Id.  11.  See,  when  they  can  be 
recovered  as  damages.  Ah  Thair  v.  Qitan  Wan, 
3  Id.  21G.  That  thr^y  arc  not  to  be  considered 
by  the  jury  in  actions  sounding  in  tort,  see 
/I'oirell  V.  Si-ro'i'iiiis,  43  Id.  3o5;  Fatk  v.  Water- 
mau,  49  Id.  224. 


83C1.    Damnges  must  be  certain. 

Sec.  3.)01.  No  damages  can  be  recovered  for  a  breach  of  contract  which  are 
not  clearly  ascertainable  in  both  their  nature  and  origin, 

3302.    Jlreach  of  contract  to  pay  liquidated  sum. 

Sec  3302.  The  detriment  caused  by  tbe  breach  of  an  obligation  to  pay 
money  only  is  deemed  to  be  the  amount  due  by  the  terms  of  the  obligation, 
"with  interest  thereon. 


Money,  damtises  for  i^ot  pa -in^;. — The 

actual  Iji-s  occasioned  may  be  much  greater 
than  the  interest,  but  the  consequences  beyond 
that  the  lawd.)e3  not  inquire  int':  SedgAvickou 
Damages,  8.     It  would,  indeed,  often  be  im- 


possi'ilo  to  determine  the  actual  damages 
resulting  from  the  detention  of  money;  the 
party  entitled  to  it  may  in  consequence  have 
been  compollcd  to  borrow  on  ruinous  rates  of 
interest;  he  may  have  become  embarrassed  in 


673 


5§  3303-3006  RELIEF.  [Div.  IV,  Part  I, 

his  business  opprations,  rninetl  in  credit,  and     notice:  ITeyman  v.  Landers,  12  Cal.  Ill:  Lallg 
perhaps  driven  into  insolvency;    liut  of   these     v.  Wise,  28  Id.  543. 
possible  conse<|nences  the  courts  cannot  take 

3303.  Dishonor  of  foreign  bills  of  exchange. 

Sec.  3303.  For  the  dishonor  of  foreign  bills  of  exchang-e  the  damages  are 
prescribed  by  sections  thirty-two  hundred  and  thirty-five,  thirty-two  hundred 
and  thirty-seven,  and  thirty-two  hundred  and  thirty-eight. 

3304.  Del  rim  enl  caused  by  breach  of  covenant  of  seisin,  etc.,  what  is. 

Sec.  3304.  The  detriment  caused  by  the  breach  of  a  covenant  of  "  seisin," 
of  •'  right  to  convey,"  of  "  waiTanty,"  or  of  "  quiet  enjoyment,"  in  a  grant  of  an 
estate  in  real  propertj'',  is  deemed  to  be: 

1.  The  price  paid  to  the  grantor;  or,  if  the  breach  is  partial  only,  such  pro- 
portion of  the  price  as  the  value  of  the  property  afiected  by  the  breach  bore  at 
the  time  of  the  grant  to  the  value  of  the  whole  property; 

2.  Interest  thereon  for  the  time  during  which  the  grantee  derived  no  benefi.t 
from  the  propert}^  not  exceeding  five  years; 

3.  Any  expenses  propex'ly  incurred  by  the  covenantee  in  defending  his  pos- 

Bession, 

Breaches  of  covenants  ia  deeds. — "War-  dnced;  3.   Eviction  by  process  of  law  requisite 

ranty. — An  action  upon  the  covenant  of  war-  to  eual)le  an  action    to  be  maintained  on  the 

ranty  of  tide  will  not  lie  until  eviction.     The  covenant;  4.  Equity  can  relieve  by  {granting  a 

reason   of  this   principle  ia  founded  upon   tlie  rescission  of  the  contract  upon  the  a'lega'Liou  of 

position  that  tiiere  can  be  no  approximation  to  the  insolvency  of  the  j^rantor,  and  his  inability 

a  correct  measure  of  damages.     It  would  bo  a  to  respond  in  damages  to  an  action  upon  the 

Berious  hardship  to  allow  tiie  grantee  to  defeat  covenant,    a   paramount   outslanding   title   in 

an  action  for  the  jiurchase  money  and  interest,  another,  and  an  offer  to  redeliver  poss'^'ssion  and 

on  the  ground  of  a  breach  of  warranty,  while  account  for  the  rents  and  profits:  CuUum  v. 

he  remams  in  the  enjoyment  of  the  possession,  Bank  of  Alabama,  4  Ala.  21;  Norton  v.  Jack- 

has  derived  its  rents  ami  profits  probab'y  for  son,  5  Cal.  2G4. 

many  years,  and  may  hold  until  bis  possession  Quiet  enjoynaent. — If  the  lessor  breaks  a 

ripens  into  a  i)erfect  title:  Norton  v.  JacLson,  covenant  in  the  lease  for  quiet  enjoyment  of 

6  Cal.  2G4;  L'aci'ds  V.  il/cCor/,  3  Ohio,  211.     The  the  demised   premises   by  bringing  actions  at 

principles  deduced  from  tiie  various  authorities  law  against  the  lessee  to  recover  possession  of 

may  be  classed  thus:   1.   Where  there  is  a  cove-  the  demised    premises,   the  lessee's  costs  and 

nant  of  warranly,  the  payment  of  the  purchase  counsel  fees  in  defending  the  action  are  properly 

money  cannot  be  resisted  as  long  as  the  grantee  allowed  as  damages  in  a  suit  by  the  lessee  for 

remains  in  possession;  2.  Nor  under  the  same  breach  of  the  covenant:  Levitzky  v.  Canning, 

circumstances  can  the  purchase  money  be  re-  33  Cal.  299. 

3305.  Detriment  caused  by  breach  of  covenant  against  incumbrances. 

Sec.  3305.  The  detriment  caused  by  the  breach  of  a  covenant  against  incum- 
brances in  a  grant  of  an  estate  in  real  property  is  deemed  to  be  the  amount 
•which  has  been  actuallj'  expended  by  the  covenantee  in  extinguishing  either  the 
principal  or  interest  thereof,  not  exceeding  in  the  former  case  a  proportion  of 
the  price  paid  to  the  grantor  equivalent  to  the  relative  value  at  the  time  of  the 
grant  of  the  property  affected  b^'  the  breach,  as  compared  with  the  whole,  or, 
in  the  latter  case,  interest  on  a  like  amount. 

8306.    Breach  of  agreement  to  convex)  real  properly. 

Sec.  3306.  The  detriment  caused  by  the  breach  of  an  agreement  to  convey 
an  estate  in  real  property  is  deemed  to  be  the  price  paid,  and  the  expenses 
properly  incurred  in  examining  the  title  and  preparing  the  necessary  papers, 
with  interest  thereon;  but  adding  thereto,  in  case  of  bad  faith,  the  difierence 
between  the  price  agreed  to  be  paid  and  the  value  of  the  estate  agreed  to  be 
conveyed,  at  the  time  of  the  breach,  and  the  expenses  properly  incurred  in  pre- 
paring to  enter  upon  the  land. 

Breach  of  agreement  to  convey  realty.—  -valid  contract  between  the  parties  for  tlie  con- 
In  an  action  for  tlamages  resulting  to  plaintiff  veyance  of  land  by  defendant,  in  consideration 
from  a  breach  on  the  part  of  defendant  of  a    of  money  paid  or  services  rendered  by  plaintiif, 

574 


Title  II,  Chap.  II.] 


MEASURE  OF  DAMAGES. 


§§  3307-3309 


the  measure  of  damages  is  tlis  value  of  the  land 
agreed  to  be  conveyed.  But  in  assumpsit  for 
the  recovery  of  money  paid  or  services  ren- 
dered u[)oii  a  void  conti'act  for  the  conveyance 
of  the  lands,  the  measure  of  plaintifl's  relief  is 
the  money  he  has  advanced,  with  interest,  or 
the  reasonable  value  of  the  services  remlered, 
vithout  reference  to  and  not  connected  with 
the  express  contract;  the  defendant's  liability 
iu  such  case  rests  upon  an  implied  promise  or 
assumpsit,  and  evidence  of  the  value  of  the 
land  slipulated  to  be  eonveyetl  Ijy  the  express 
void  ajrreement  is  inadmissible  as  a  measure  of 


the  value  of  services  rendered  hy  the  plaintiff, 

or  tiic  relief  to  which  he  is  entitled  in  ccusid- 
eration  of  money  advanced  upon  such  express 
contract:  Fuller  v.  Heed,  33  C'al.  110. 

An  a','rcement  to  sell  land,  and  upon  the  pay- 
ment of  the  purchase  money  to  execute  a  gooil 
and  sulhcient  deed,  requires  th:xt  t!ic  vendor 
should  convey  the  title  to  the  vendee,  but  the 
latter  cannot  recover  for  a  breach  of  the  agree- 
ment until  eviction,  or  until  he  has  surrendered 
or  offered  to  surrender  the  premises:  llaynes  v. 
White,  50  Cal.  38. 


3307.    Breach  of  agreement  to  buy  real  property. 

Sec.  3o07.  The  detriment  caused  hy  the  breach  of  an  agi'eement  to  purchase 
an  estate  in  real  property  is  deemed  to  he  the  excess,  if  any,  of  the  amount 
which  would  have  been  due  to  the  seller,  under  the  contract,  over  the  value  of 
the  property  to  him. 

8308.    Breach  of  agreement  to  sell  personal  prop^rfij  not  paid  for. 

Sec.  3308.  The  detriment  caused  by  the  breach  of  a  seller's  agreement  to 
deliver  personal  property,  the  price  of  which  has  not  been  fully  paid  in  advance, 
is  deeiiied  to  be  the  excess,  if  any,  of  the  value  of  the  property  to  the  buyer, 
over  the  amount  which  would  have  been  duo  to  the  seller  under  the  contract,  if 
it  had  been  fulfilled. 


Failure  to  deliver  personalty  not  paid 
for. — The  supreme  court  formerly  lield  the 
true  rule  of  damages  was  the  difference  between 
the  price  agreed  ou  between  the  parties  and  the 
market  value  of  the  goods  at  the  time  of  the 
breach  of  contract:  Tobiii  v.  Post,  3  Cal.  37o. 
In  tliis  case  special  damage  was  not  specially 
alleged.  The  court  also  said:  "Tiie  fact  that 
there  were  no  Cliinese  goods  in  the  market  at 
that  time  corresponding  to  the  description  of 
those  sold  by  the  defendant  did  not  warrant 
the  admission  of  evidence  showing  what  they 
were  worUi  in  broken  packages,  nnich  less  the 
testimony  of  the  plaintiff's  clerk  to  prove  their 
amount  of  sales  and  profits.  The  value  of  a 
cargo  of  similar  goods  might  have  been  ascer- 
tained by  the  testimony  of  competent  mer- 
chants, and  the  difference  between  tlie  value 
BO  estimated  and  the  contract  price  w^ouhl  have 
been  the  true  measure  of  damages: "  Id. 

Where  a  party  contracted  for  a  quantity  of 
wheat,  to  be  delivered  on  demand  and  p.iid 
for  on  delivery,  in  an  action  for  non-delivery 
tlie  measure  of  damages  was  held  to  be  the 
dill'erence  lietween  the  contract  price  and  the 
value  of  the  article  sold:  Ruiz  v.  Norton,  4 
Cal.  335;  Crosb;/  v.  Watklns,  12  Id.  85.  In  a 
contract  for  the  sale  of  a  certain  number  of 
shares  of  fruit  growing  on  tlie  trees  of  an 
orcliard  owned  in  sliares,  the  vendor  guaran- 
teed to  the  vendee  that  the  shares  of  fruit 
should  be  at  ids  disposal  on  the  trees,  free  from 
trouble  or  annoyance  from  other  parties.  Ou 
breach  of  such  contract,  where  no  special  dam- 


age is  alleged,  tlie  measure  of  the  damage  is 
the  higliest  market  price  of  the  fruit  on  the 
trees  at  the  orcliard,  if  there  is  any  market 
value  for  it  there;  if  not,  then  if  the  vendee 
is  prepared  to  gather  it  and  carry  it  to  the 
market,  tlie  market  value  tiiere,  less  the  cost 
of  gathering  and  carriage:  Dabovich  <L  Co.  v. 
Erne  lie.  Id.  171. 

Where  a  contract  was  made  to  furnish  a 
steamboat  with  five  hundred  tons  of  freight,  at 
two  dollars  u  ton,  and  the  freight  was  not  fur- 
nished, it  was  held  that  the  measure  of  damages 
for  such  breach  was  not  the  difference  between 
the  freight  money  and  what  tlie  boat  actually 
earned  during  the  time  it  would  have  taken  to 
perform  the  contract,  but  the  difference  be- 
tween the  net  profits  that  would  have  been 
made  under  the  contract,  and  tlie  net  profits 
which  were,  or  might  with  reasonable  diligence 
have  been,  made  during  such  time.  In  an 
action  for  breach  of  contract  to  furnisii  freight 
to  a  steamboat,  the  plaintiff  is  entitled  to  re- 
cover only  the  actual  loss  suffered  from  the 
breach;  but  to  show  that  such  loss  was  less 
than  the  profits  that  would  have  been  made 
under  tlie  contract,  the  burden  of  proof  is  on 
the  defendant.  A  person  who  contracts  to  de- 
liver freight  to  a  steamboat  and  fails  to  do  so 
is  liable  in  damages  for  the  actual  loss  thereby 
sustained  by  the  steamboat;  but  he  does  not 
becone  a  guarantor  against  any  further  loss, 
such  as  the  boat  may  sustain  by  reason  of 
fruitless  efforts  to  procure  profitable  employ- 
ment: Utter  V.  Chapman,  43  Cal.  279. 


8309.    Breach  of  agreement  to  sell  personal  property  paid  for. 

Sec  3309.  The  detriment  caused  by  the  breach  of  a  seller's  agreement  to 
deliver  personal  property,  the  price  of  which  has  been  fully  paid  to  him  in 
advance,  is  deemed  to  be  the  same  as  in  case  of  wrongful  conversion. 

Non-delivery  of  personalty  sold  and  paid  furthest,"  the  consideration  money  having  been 
for. — I'laintiff  sued  on  a  contractof  sale  of  eat-  paid,  ad  ling  also  the  common  counts,  and  the 
tie,  to  be  delivered  within  "three  weeks  at  the    coinplaiut  averred  a  breach  by  failure  to  deliver 

575. 


§§  3310-3313  RELIEF.  [Div.  IV,  Part  I, 

the  cattle.  It  was  licid  lliat  it  was  not  error  in  ten  per  cent  interest,  or  the  highest  market 

the  court  1)clow  to  instruc.*-,  the  jury  that  if  de-  pricu  of  tliu  cattle  to  the  time  of  tiial:  Maker 

fcndants  did  not  have  the  cattle  ready  for  dcliv-  v.  C.  <i-  J.  Rl'eij,  17  C'al.  413. 

ery  at  the  time  mentioned  in  the  contract  they         Conversion,    maasure  of    damasea   forj 

should  lind   for  plaintilF,  and  in  assessing  dam-  Sec.  3336. 

ages  they  might  find  the  purchase  money,  with 

3310.    Ih-cavh  of  agreement  to  pay  for  personal  property  sold. 

Sec.  3310.     The  detriment  caused  by  the  breach  of  a  buyer's  agreement  to 

accept  and  pay  for  personal  property,  the  title  to  which  is  vested  in  him,  is 

deemed  to  be  the  contract  price. 

Goods,  damages  f  jr   non-acceptance. —  breach  was  the  clear  profit  which  the  plaintifif 

The  plaintiir  sued  directly  upon  a  contract  to  would  have  made;  that  is,  thedifference  liutween 

recover  tku  contract  price  for  lumber  delivered  the  contract  price  and  what  it  woid!  have  cost 

and  received,  and  for  a  breach   for  declaring  the  ])laintilF  to  manufacture  and  deliver   the 

the  contract  at  an  end  and  refusing  to  take  any  lumber  according  to  the  terms  of  the  conti'act: 

more  lundjcr  under  it.    It  was  held  that  the  Ila'c  v.  Trout,  35  Cal.  2-40. 

plaintiff  might  so  sue,  and  recover  the  whole  Before  the  code,  the  court  held  that  the  rule 

damage  sustained  in  consequence  of  the  breach,  of  damages  against  a  purchaser  for  not  rccoiv- 

witliout  waiting  for  tiie  time  of  performance  to  ing  goods  according  to  contract  was  the  <lirt'er- 

elapse,  or  repeating  an  ofl'cr  to  perform  from  ence  between  the  contract  price  and  the  market 

month   to   month,  as  the  time  for  delivery  ar-  value  at  the  time  of  the  breach  of  iho  contract: 

rived,  and  that  the  rule  of  damages  upon  the  lla>ikdl  v.  Mcllairy,  4  Cal.  411. 

8311.    Breach  of  agreement  to  buy  personal  property. 

Sec.  8311.  The  detriment  caused  by  the  breach  of  a  buyer's  agreement  to 
accept  and  pay  for  personal  property,  the  title  to  which  is  not  vested  in  him,  la 
deemed  to  be: 

1.  If  the  property  has  been  resold,  pursuant  to  section  thirty  hundred  and 
forty-nine,  the  excess,  if  any,  of  the  amount  due  from  the  buyer,  under  the  con- 
tract, over  the  net  proceeds  of  the  resale;  or, 

2.  If  the  property  has  not  been  resold  in  the  manner  prescribed  by  section 

thirty  hundred  and  forty-nine,  the  excess,  if  any,  of  the  amount  due  from  the 

buyer,  under  the  contract,  over  the  value  to  the  seller,  together  with  the  excess, 

if  any,  of  the  expenses  properly  incurred  in  canning  the  property  to  market, 

over  those  which  would  have  been  incurred  for  the  carriage  thereof,  if  the  buyer 

had  accepted  it. 

Breach  of  agreement  to  buy  personalty,  the  iron-work  contracted  to  be  taken,  the  plaint- 

For  a  partial  breach  of  a  buyer's  contract  to  iff  was  allowed  to  recover  such  proptirtion  of 

purchase   personal   property,    the   measure   of  the  whole  contract  price  as  the  iron  delivered 

damages  is  i-ecompeuse  to  the  seller  at  tlie  con-  bore  to  the  entire  amount  contracted  for,  and 

tract  price  for  the  part  performance,  ami  indem-  the  profit  which  would  have  resulted  had  thecoa- 

nity  for  the  loss  in  respect  to  the  unexecuted  tract  been  carried  out  and  the  expense  incurred 

part.     Therefore,  in   Upstoiie  v.  ]Vei>\   iy\  Cal.  in   furnisiiing  me  ins  to  provide  the  balance  of 

124,  where  the  defendant  took  but  a  portion  of  the  iron  called  lor  by  the  contract. 

3312.     Breach  of  warranty  of  title  to  personal  property. 

Sec.  3312.  The  detriment  caused  by  the  breach  of  a  warranty  of  the  title  of 
personal  property  sold  is  deemed  to  be  the  value  thereof  to  the  buyer,  when  he 
is  deprived  of  its  possession,  together  with  any  costs  Avhich  he  has  become  lia- 
ble to  pa}'  in  an  action  brought  for  the  property  by  the  true  owner. 

8313.    Breach  (f  warranty  of  quality  of  personal  property. 

Sec.  3.313.     The  detriment  caused  by  the  breach  of  a  warranty  of  the  quality 

of  personal  property  is  deemed  to  be  the  excess,  if  an}',  of  the  value  Avhich  the 

property  would  have  had  at  the  time  to  which  the  warranty  referred,  ii  it  had 

been  complied  Avith,  over  its  actual  value  at  that  time. 

Breach  of  v/arrauty  of  soundness;  See  from  the  courts  of  the  various  states  in  support 
the  note  to  Cari  v.  G'niwati,  4  )  Am.  Dec.  3,>;{,  of  the  measure  of  damages  here  i)ies(siibe(l. 
where  a  great  number  of  decsioas  are  cited     That  note  also  contains  references  upon    tho- 

576 


Ttile  II,  Chap.  11.] 


MEASURE  OF  DAMAGES. 


§§  3314-3316 


price  paid  as  evidence  of  value,  and  rpon  the  quality  of  barley,  the  difference  in  value  at  the 

consequential  dama;5es  which  follow  from  the  time  of  delivery  between  what  it  was  and  what 

breach  of  the  warranty.  it  ought  to  be,  was  declared  to  bo  the  rule: 

In  an  action  for  the  breach  of  warranty  of  J/wj/us  v.  Bray,  GO  Cal.  2S4. 

3314.   Breach  of  warranty  of  qualilyfor  .special  purpose. 

Sec.  3314.  The  detriment  caused  by  tlie  breach  of  a  warranty  of  the  fitness 
of  an  article  of  personal  property  for  a  particular  purpose  is  deemed  to  be  that 
■which  is  defined  by  the  last  section,  together  with  a  fair  compensation  for  the 
loss  incurred  by  an  effort  in  good  faith  to  use  it  for  such  purpose. 

8315.  Breach  of  carrier's  obligalion  (a  receive  goods,  etc. 

Sec.  3315.  The  detriment  caused  by  the  breach  of  a  carrier's  obligation  to 
accept  freight,  messages,  or  passengers,  is  deemed  to  be  the  difference  between 
the  amount  which  he  had  a  right  to  charge  for  the  carriage  and  the  amount 
•which  it  would  be  necessary  to  i)ay  for  the  same  service  when  it  ought  to  be 
performed.  i 

Obligation  to  receive  freiglit:  Sec.  2169. 

8316.  Breach  of  carrier's  obligation  to  deliver'. 

Sec.  331G.  The  detriment  caused  by  the  breach  of  a  carrier's  obligation  to 
deliver  freight,  where  he  has  not  converted  it  to  his  own  use,  is  deemed  to  bo 
the  value  thereof  at  the  place  and  on  the  day  at  which  it  should  have  been 
delivered,  deducting  the  freightage  to  which  he  would  have  been  entitledif  ho 
Lad  completed  the  delivery. 

Delivery  of  property  by  carrier:  See  antr,  natural  and  proximate  damages  resulting  froni' 

sees.  2 1 1 3,  "2 1 1 D.  tliia  l)rcach  of  contract:  Pari:'*  v.  AUa  C;di- 

Gioppa^o  in  transitu:  See  aide,  sees.  .SOTG  foruia  Tdprjraph  Conipaiii/,  13  Id.  421.    I'lainti- 

ct  acq.  iff  was  a  person  of  culor,  and  bcin  ^  desirous 

Ereacli  of  carrier's  obligation  to  deliver,  to  taku  iiassa^eon  defendant's  street-rai  j-oad 

The  ralo  of  damage  for  the  failure  of  a  carrier  car,  in  San   Francisco,  hailed  the  conductor, 

to  deliver  goods  is  their  value  at  the  port  of  requesting  him  to  take  her  on  board,  whi^Ii  ho- 

dclivery,  nut  their  invoice  price  or  value  at  the  failed    tu   do.     The   conductor  stated    i:nmo- 


port  of  sliipmunt:  R'uKj'jold  v.  lluven,  1  Cal. 
lOS;  Hart  v.  Spalding,  Id.  2l:$.  A  dispatch 
■was  directed  tj  the  agent  of  a  creditor  in  these 
words:  "Due  1803;  attach  if  you  can  (iud 
property;  will  send  note  l)y  to-morrow's 
stage. "  The  debtor  was  afterwarils  insolvent, 
and  the  creditor,  plaintiff,  claimed  that  he  had 
lo3t  his  debt  by  the  failure  of  defendant  to 
transmit  this  message.  The  court  said  the 
brcac'.i  of  t!ie  contract  entitled  tlie  pl.dnliff  to 
nominal  damages  if  no  real  damages  were 
Bhovvu.  For  example,  the  plaintiif  had  a  riglit 
to  have  his  message  sont  according  to  contract. 
To  ascertain  the  damages  sustained  by  the 
breach  of  this  contract,  tiicse  iuipiiries  wore 
pertinent:  It"  tlie  messa^^e  had  been  sent,  was 
the  idaintdF'a  agent  in  Stockton  at  the  time, 
and  would  he  have  received  it?  Next,  would 
he  then  have  taken  out  an  attachment  on  tlie 
debt?  At  what  time  couhl  he  have  done  thij? 
Could  he  have  given  security?     Could  lie  h  ivo 


diatcly  after,  in  reply  to  a  request  of  a  pas- 
senger to  take  plaintiff  up  as  I'cquested, 
"\Ve  don't  take  colored  people  in  the  cars." 
There  was  at  the  time  ample  room  in  the  car 
to  accoiimodate  the  |)lainLilF,  wiio  was  ready 
anil  willing  to  pay  the  fare.  There  was  no 
proof  of  any  special  damage.  Plaintiff  had  a 
verdict  and  judgment  for  live  hundred  dollars. 
It  was  held:  1.  That  there  was  no  evi  Icnca 
of  malice,  ill-will,  or  wanton  conduct  oi  tha 
part  of  the  defendant  toward  the  plaintiff,  and 
that  it  was  not  a  case  f  )r  exemplary  damages; 
2.  T.iat  t!ie  verdict  was  excessive;  and  ;>.  Tliat 
upon  t'.ic  facts  stated,  plaintilF  wa3  entiil.d  to 
noaiinal  da;:iages,  even  i.i  t!ie  abson<;e  of  proof 
of  any  actual  damage:  Pli'uxanls  v.  N.  H.  A 
M.  It.  R.  Co.,  31  II.  533.  In  a  similar  case, 
wliere  jilaintiff  was  ejected  from  a  street-rail- 
road car  bjlon  jing  to  djfei)d:\nt,  by  tlie  con- 
ductor, at  the  hour  of  ton  at  night,  with  some 
violju'je,  ])ut  resulting  in  no  appreciaMe  dam- 


Erocurcd  attor.ijys  to  issue  t!ie  writ?    At  what     ago  to  plaintiff  in  pjrson  or  estate,  and  there 
our  could  and  would  it  have  been  put  in  tlie     was   no  express  avcinient   that  the   act   was 


Lauds  of  tlie  sheriff?  Wai  p:-opcrty  there 
of  the  debtor's  subject  to  the  writ?  If  a 
telegraiiliic  dinpatcli  had  reached  the  agent,  ho 
would  have  been  bound  to  act  ;.t  once;  ib  was 
to  be  presumed  tliat  ho  would  have  danc  so; 
at  least,  he  could  testify  whether  ho  would. 
If  he  had,  the  sheriff  was  to  be  presumed  will- 
ing to  do  his  duty;  if  he  did  not,  he  would  be 
Table  to  the  plaintiff,  and  tliere!)y  tlio  plaint- 
iff's debt  would  be  secured.  Tlie  c  >urfc  con- 
Bidcreil  that  the  loss  of  the  debt  would  be  the 


wantonly  or  maliciously  done,  nor  of  special 
damage,  and  plaintiff  had  a  verdict  and  judg- 
meat  fir  scvju  hundred  and  fifty  dollars  daaj- 
agc"),  it  wa^  held  tliat  said  verdict  and  judgment 
or  daaiagcs  were  cxcesjive,  and  appear  I )  h;ivo 
been  g.vc:i  under  tlie  inflncnco  of  passion  or 
prejudice:  Turner  v.  X.  B.  tfr  M.  It.  It.  Co., 
Id.  53 1.  Where  no  special  damage  was  alleged 
O"  proved  by  plain. ilf  for  the  breach  of  a  rail- 
r.ia  1  jiasscngcr  contract,  and  the  evidence  was 
only  tliat  lie  was  put  out  of  tlie  defcudajii'a  car 


Civ.  CoDK— 37 


577 


§§  3317  -3353 


RELIEIi'. 


[Div.  IV,  Part  I, 


at  a  point  about  twelve  miles  frond  Ins  destina- 
tion anil  live  miloa  from  the  placj  of  dcpartiiro, 
it  Wis  licl.l  tliat  a  verdict  for  five  liundred  dol- 
lars damages  wan  greatly  dispr(>[)()rtioiiate  to 
tlie  injury  proved,  and  that  oi.e  hundred  dol- 


lars was  ample  compensation  for  the  injury 
sustained,  and  ordert^d  that  a  new  trial  be 
granted  unless  plaintiff  e'ect  to  accei)t  judg- 
ment for  the  said  sum:  Tarbfll  v.  C.  /■•.  It.  li, 
Co.,  Id.  GIG;  Aldrlch  v.  Palmer,  24  Id.  513. 


3317.    Carrier's  delay. 

Sec.  3317.  The  detriment  caused  by  a  carrier's  delay  in  tbe  delivery  of 
frei'j^lit  i;9  deemed  to  be  the  depreciation  in  the  intrinsic  value  of  the  freight 
during  the  delay,  and  also  the  dei^reciation,  if  any,  in  the  market  value  thereof, 
otherwise  than  by  reason  of  a  depreciation  in  its  intrinsic  value  at  the  place 
•where  it  ought  to  have  been  delivered,  and  between  the  day  at  which  it  ought 
to  have  been  delivered  and  the  day  of  its  actual  delivery. 

Carrier's  liability  for  delay:  See  ante,  sec.  observed  that  the  latter  branch  of  the  rule  doeH 
21 9G.  not  include  the  former.     Goods  may  advance 

In  the  proposed  code  the  commissioners  say:     in  the  market,  and  yet  be  so  injured  by  delay 
"The  rule  here  adopted  is  su[)ported  by  the     as  to  diminish  their  intrinsic  value.     The  car- 
wei[;'it  of  authority,  and,  as  the  commissioners     rier  ought  not  to  benelit  by  his  own  fault." 
believe,  by  the  weight  of  reason.     It  is  to  be 

3313.    Breach  of  warranfy  of  aiilhorihj. 

I  Sec.  3318.  The  detriment  caused  by  the  bi'each  of  a  warranty  of  an  agent's 
authority  is  deemed  to  be  the  amount  which  could  have  been  recovered  and 
collected  from  his  principal  if  the  warranty  had  been  complied  with,  and  the 
reasonable  expenses  of  legal  proceedings  taken,  in  good  faith,  to  enforce  the 

:  act  of  the  agent  against  hi.s  principal. 

"Warranty  of  autliority  by  one  assuming  to  act  as  agent:  See  ante,  sec.  2342." 

3310.    Breach  of  jiromise  of  marriage. 

Sec.  3319.  The  damages  for  the  breach  of  a  promise  of  marriage  rest  in  the 
sound  discretion  of  the  \\ivy. 


Breach    of  promise    of  marrlaje. — The 

action  for  breach  of  promise  of  marriage  is 
peculiar  in  its  nature,  and  the  elements  g  )ing 
to  constitute  the  damage  differ  materially  from 
those  existing  in  the  case  of  a  broac'.i  of  any 
other  contract.  It  is  the  duty  of  the  juiy  to 
look  beyond  the  contract  itself  for  the  measure 
of  damages,  and  give  to  the  i:ijured  p  irty  a  full 
compensation  for  all  loss  in  not  having  the  con- 
tract fuliilled.  This  has  always  l)een  hold  to 
embrace  the  injury  to  the  feelings,  affections, 
and  wounded  pride,  as  well  as  tiie  lass  of  mar- 
riage. The  diiUculty,  arising  from  the  very 
nature  of  the  case,  of  lixing  any  accurate  rulj  by 
whicli  to  estimate  the  damages  arising  from 
these  sources,  has  rendered  it  necessary  to  give 
a  great  latitude  to  the  introduction  of  cvitlence, 
and  to  admit  the  jury  to  a  full  knowledge  of  all 
the  circumstances  attending  the  transaction, 
not  only  in  its  inception,  but  during  the  con- 
tinuance   of     the    relationship    betn'eeu     the 


parties.  The  announcement  of  the  engagement 
to  a  few  intimate  friends  may  bo  neither  im- 
proper nor  unbecoming,  and  certainly  requires 
no  express  authorization.  In  Rcedw  Clark,  47 
Cal.  193,  the  court  thou  ;ht  the  jury  should  be 
permitted  to  consider  this,  with  the  other  cir- 
cumstances of  the  case,  iu  estimating  the  injury 
occasioned  to  the  plaintiff  by  a  breacli  of  the 
contract:  See  Southard  \\  Rfxford,  GCow.  254. 
In  a;i  action  for  breach  of  promise  of  marriage 
the  interposition  of  a  defense  that  the  character 
of  the  plaintiff  is  unchaste,  even  if  unsuccessful, 
ouglit  not  per  se  to  aggravate  the  damages,  un- 
less it  is  interposed  in  bad  faith,  from  malice, 
wantonness,  or  recklessness:  Powers  v.  Wheat- 
ky,  4  5  Cal.  113. 

Actions  for  breach  of  promise  of  mar- 
riage: See  a  very  complete  discussion  of  this 
subject  in  the  note  to  JJarnham  v.  Comwell,  63 
Am.  Dec.  532-548. 


ARTICLE  II. 

DAMAGES   FOR   WRONGS. 

•  3333.    Breach  of  obligation  other  than  contract. 

Sec.  3333.  For  the  breach  of  an  obligation  not  arising  from  contract,  the 
^measure  of  damages,  except  where  otherwise  expressly  provided  by  this  code,  is 
•the  amount  which  will  compensate  for  all  the  detriment  proximately  caused 
thereby,  whether  it  could  have  been  anticipated  or  not. 

Damages  for  wrougs. — See  ante,  in  note  to  the  answer,  the  damages  should  be  apportioned 
-sec.  3300.  at  the  trial:    Whitney  v.  Stark,  S  Ca.1,  514.     In 

Where  a  part  owner  sues  ex  delicto,  and  the  an  action  by  a  reversioner  for  injury  done  to 
objection  df  defect  of  parties  ia  not  set  up  in    the  freehold,  the  duration  of  the  term  of  the 

678 


Title  II,  Chap.  11.1 


MEASURE  OF  DAMAGES, 


3333 


tenant  in  possession  is  material  in  evidence  as 
affecting  tlie  measure  of  damages:  UttendorJJer 
V.  Sactjcrs.  00  Id.  4UG.  In  an  action  for  nui- 
sance, I  y  olistructiiig  astreetopposite  plaintilFs 
resalt'iice,  defciidaut  is  liable  only  for  damages 
actual  y  fiustained  prior  totlie  commoncenientof 
theaciu.ii:  ilopLins  v.  W.  P.  R.  li.  Co.,  Id.  191. 

If  a  person  having  a  good  cause  of  action 
again- 1  another  willfully  sues  for  a  much  greater 
amount  tiian  is  due,  and  attaches  tlie  pi-operty 
of  tlio  other,  and  puts  him  to  cliarges,  he  is  lia- 
ble, 'i'iie  jury  are  not  oonlincd  to  tlie  actual 
peeuniai-y  loss  sustained  hy  the  plaintiff,  but 
may  taliu  into  consideration  the  character  and 
posiL;o:i  of  the  parties,  and  all  the  circuinstan- 
cus  attending  the  transaction.  In  sucli  a  case 
tile  court  would  not  disturb  a  verdict  unless 
it  clearly  appeared  that  injustice  has  been  done: 
Wi'iiiTT  V.  Page,  G  Cal.  GSJ.  In  an  action  for 
personal  torts,  the  law  iloes  not  fix  any  precise 
rule  of  damages,  but  leaves  their  assessment  to 
the  unbiased  judgment  of  the  jury:  Whealoa 
V.  X.  I'..  .0  M.  n.  R.  ro.,  .30  Cal.  .'-.90. 

In  cases  of  simpl3  usgligense,  the  rule 
governing  the  measure  of  damages  is  to  allow  the 
actual  damages.  The  allowance  of  "smart- 
mo  icy"  in  such  cases  is  improper:  Moody  v. 
IIc/Jou'ilil,  4  Cal.  297.  Proximate  or  imme- 
diate and  direct  damages  are  the  ordinary  and 
natural  results  of  the  negligence.  Therefore  a 
S[jreauing  of  a  (ire  from  one  iield  to  another  is, 
in  our  drytseason,  the  natural,  direct, and  prox- 
imate eonse(pience  of  a  liring  by  sparks  from  a 
locomotive:  Henry  \.  S.  I\  R.  R.,  50  I<1.  IS.'i. 

In  an  action  for  injuries  sustained  througii 
the  negligent  management  of  a  stage,  the  court 
below  instructed  the  jury  that  "  if  they  believed 
the  stage  was  topdieavy,  and  overloaded  with 
passcn  ,ers,  and  that  with  su.di  load  it  was 
tiriven  with  great  recklessness  at  the  time  of 
the  disaster,  then  they  sliould  lind  not  only  tlie 
actual  damages  sustained  by  the  plaintilF,  but 
they  should  give  additional  damages,  sucii  as 
would  be  an  example  tliereafter  which  would 
tend  to  prevent  such  recklessness  in  the  con- 
duct of  stages  to  the  great  peril  of  passengers." 
Tiie  .supreme  court  held  tliat  in  actions  of  this 
clniracter  all  the  circumstances  of  the  case 
luiglit  be  taken  into  consitleration  in  making 
u;)  tlic  estimate  of  damages,  and  the  jury  were 
not  confined  to  the  actual  damages  sustaine<l; 
but  <l.images  which  went  beyond  this  and  were 
profcssi.'dly  laid  for  the  benefit  of  the  public 
con  hi  not  be  recovered;  and  that  the  principal 
■was  liable  only  for  simple  negligence,  and  ex- 
emii'ary  clainages  could  not  be  imposed  upon 
him:  Wardrobe  v.  Val'iforida  Slaiji^  Co.,  7  Cal. 
123.  A  person  injured  by  the  fall  of  an  awn- 
ing in  the  process  oi  erection  in  front  of  a  store, 
and  who  sues  the  person  who  was  erecting  the 
same  f.n*  damages,  is  not  entitled  to  include  in 
\^'\^  damages  the  sum  paid  for  his  board  during 
the  time  he  was  disabled:  GraeOer  v.  Derwiii,  43 
Id   49.-). 

Ill  an  aotioa  for  trespass,  where  there  is  no 
malice,  the  damages  must  be  limited  to  the  di- 
rect and  natural  coneequences  of  the  act,  and 
must  be  suscejitible  of  computation:  Scldcn  v. 
CcL-ihrnan,  20  Cal.  50;  .S".  .0  /..  '.'.  11.  Co.  v.  S\ 
d'C.  li.  R.  Co.,  53  lil.  11;  Ihrnl  v.  liamhart. 
Id.  97.  Where  plaintiff  co.ni>lained  of  tlie  de- 
Btruction  of  his  fences,  and  tramiiling  of  grain, 
etc..  it  was  held  that  ))lainti(r  could  not  recover 
for  injury  to  the  grain  by  cattle  of  others:  Berry 
V.  S.  F.  d:  N.  p.  n.  R.  Co.,  50  Id.  437. 

67 


Nor  whore  defendant  had  turned  plaintiir'a 
cattle  into  the  highway  and  notified  plaintiff 
can  the  latter  recover  for  the  death  of  tlie  cat- 
tle for  want  of  feed:  Story  v.  Robinnoa,  32  Cal. 
20.""). 

In  actions  of  trespass  to  recover  for  injuries 
to  a  mining  claim,  tii<i  right  of  the  plaintdis  to 
recover  the  damages  which  they  have  actually 
sustained  is  not  afTected  by  the  fact  tliat  tha 
trespass  was  not  willful  in  its  character:  Mnyn 
V.  T ippaa,  2:\  Cal.  30G.  In  Ru^srll  v.  Dciini- 
80)1,  45  Id.  337,  where  the  trespass  was  wanton, 
the  verdict  v/as  not  set  aside.  Counsel  fees 
and  other  expenses  growing  out  of  the  litira- 
tion  must  not  Ije  considered  by  the  jury:  Palls 
V.  Walcrnuiii,  49  Id.  224;  ami  see  Ilowrll  v. 
Sco(i']hiK,  48  LI.  335.  Where  damages  aro 
souglit;  for  tearing  down  the  fence  inclosing  a 
dairy,  and  thereby  enabling  cattle  to  enter  and 
destroy  the  grass,  the  plaintifT  cannot  introduce 
evidence  of  tlie  profits  which  lie  might  have 
made  from  milking  cows  and  raising  hogs  which 
he  did  not  have  and  had  nnide  no  arrangements 
to  procure:  Ciarromitii  v.  IJalkelmj,  51  Id.  2G0. 

In  an  action  for  tlio  removal  of  a  vault  form- 
ing jiart  of  t!ie  realty,  tlie  property  of  t!io 
plaintiffs,  the  court  declared  the  measure  of 
damages  to  be  the  value  of  the  article  as  it  was 
in  place  as  a  part  of  the  realty  immediately 
preceding  its  removal;  not  what  it  would  sell 
for  in  o{)en  market  rcmived  from  the  building: 
Rhoda  V.  Alimcdd  Co.,  58  Id.  357. 

O-aser  seizing  mortgaged  chattel:  Sea 
sec.  2909. 

Injuries  to  the  person. — In  an  action  for 
damages  caused  by  injury  to  the  person,  tlio 
law  does  not  fix  any  precise  rule  of  damages, 
but  leaves  tiieir  assessment  to  the  unbia.sed 
judgment  of  the  jury:  Whralon  v.  N.  U.  d-  J/'. 
A*.  /.'.,  33  Cal.  590.  The  jury,  in  estimating 
damages,  cannot  take  into  consideration  tlio 
fact  that  the  plaintiff  is  a  man  who  has  to  da- 
l^end  on  his  manual  labor  for  a  living.  The 
damages  in  such  actions  are  not  dependent  on 
the  v.-calth  or  poverty  of  the  plaintiff.  It  is 
held  by  some  of  the  authorities  that  the  plaint- 
iff is  entitled  to  show  the  cliaracter  and  the 
extent  of  the  business  in  which  he  was  engaged 
previous  to  his  b(;ing  injured,  together  with  tha 
incapacity  cauicd  by  the  injury  complained  of, 
to  transact  such  business  as  to  enable  the  jury 
to  arrive  at  the  proper  estimate  of  the  damages 
sustained  by  means  of  the  injury;  but  the  <lam- 
ages  are  not  in  any  manner  dependent  on  tha 
wealth  or  poverty  of  the  plaintiff:  Shea  v.  /*. 
ds  B.  V.  R.  R.  Co.,  44  Cal.  415;  see  also  M alone 
V.  Jlaicley,  43  Id.  413.  In  libel  cases  it  is 
proper  for  the  jury  to  take  into  consideration 
tlie  character  and  position  of  the  parties,  aiul 
all  the  circumstances  of  the  case:  Wearer  v. 
Page,  6  Id.  081.  Where  action  was  to  recover 
damages  for  an  injury  sustained  bj-  the  jjlaint- 
iff  while  working  on  a  hoisting  apparatus 
called  a  cage,  in  the  store  of  the  defendants, 
the  court  held  tiie  jury  should  have  been  told 
that  in  estimating  the  damages  they  migh  con- 
sider what,  before  the  injury  coinplaineil  of, 
was  the  health  and  physical  abilityof  the  plaint- 
i.r  to  maintain  himself  and  family,  if  he  liad 
one,  as  compared  with  his  condiiiou  in  those 
par;iculai-3  afterwards;  his  loss  of  time,  and 
how  far  the  injury  was  permanent  in  its  char- 
acter and  results,  as  well  as  the  mental  and 
physii.'al  sufiering  he  had  sustained  by  reasoa 
of  the  injury,  and  that  they  should  allow  sucl^ 

a 


3334 


RELIEF. 


[Div.  IV,  Part  I 


Bum  for  damages  as  in  their  opinion  would 
fairly  and  justly  compensate  liim  for  all  the  loss 
and  injury  sustainod.  Damages  in  favor  of  fa- 
ther or  mother  for  injury  or  death  of  minor 
child,  and  guardian  for  injury  or  death  of  ward: 
Code  Civ.  Froc.,  sec.  870.  Damages  in  favor 
of  heirs  or  personal  representatives  for  death  of 
person:  Id.,  sec.  377.  la  an  action  for  an  as- 
eault  and  battery,  the  jury,  in  estimating  the 
damages,  cannc^t  take  into  consideration  the 
plaintiff's  expenses  in  the  prosecution  of  the 
suit:  IIowcU  V.  Sco'jfjius,  48  Cal.  35.3.  In  suits 
for  personal  injuries,  damages  for  pain  of  mind 
are  recoverable:  Fiirckud  v.  Ccdijarnia  Starje 
Company,  13  Id.  .OOO-GOl.  Inaction  to  recover 
damages  for  a  violation  of  plaintiff's  trade- 
mark, the  profit  actually  realized  by  defendants 
from  the  sales  of  the  spurious  article  under  the 
simulated  trade-mark  is  a  proper  measure  of 
damages,  but  the  recovery  of  the  plaintiff  is 
not  limited  to  tlie  amount  of  such  profit:  Ora- 
ham  y.  IHate,  40  Id.  593.  The  liability  of  a 
depositary  for  negligence  cannot  exceed  the 
amount  which  he  is  informed  by  the  depositor, 
or  has  reason  to  suj'pose,  the  thing  deposited 
to  be  worth:  Sec.  1 840,  ante. 

Costs  and  expenses  of  plaintiff  in  an  action 
for  assault  and  battery  cannot  be  takt-n  into 
consideration  by  the  jury:  Howell  v.  Scof/jins, 
48  Cal.  335;  and  see  Fal/c  v.  Waterman,  49  Id. 
2J4. 

Injuries  ca'isins  death.— In  cases  of  the 
deatii  of  a  party,  where  damages  are  sought 
therefor,  it  is  the  law  of  t!iis  state  t'lat  the 
actual  pecimiary  injury  sustained  by  the  plaint- 
iff by  re;ison  of  tiie  death  is  not  the  sole  meas- 
ure or  damages.  In  an  action  for  causing  the 
death  of  the  plamtiff^s  husband,  it  was  declared: 
"  ^Ve  think  that  the  social  auvl  domestic  rela- 
tions of  the  parties,  their  kindly  demeanor  to- 
ward eacii  other,  the  society,  wore  part  of  'all 
the  circumstances  of  the  case'  for  the  jury  to 
take  into  consideration  in  estimating  wliat 
damages  woul  I  be  just  from  a  jjecuniary  point 
of  view:"  Bei-soii  v.  Green  lUt.  (/.  AI.  Co.,  57 
Cal.  20.  But  from  t!ie  same  case  it  seems  that 
"danrages  by  way  of  solace"  cannot  be  al- 
lowed. Following  this  decision  is  Coo/c  v. 
Clai/  St.  Hi  I  R.  R.  Co.,  CO  Id.  G04,  G08,  an  ac- 
tion for  killing  tiie  plaintiQ^s  husband,  tiie 
plaintiff  suing  as  heir  at  law  and  as  administra- 
trix, she  was  permitted  to  tt^stify  that  they 
lived  a  liappy  married  bfe,  tiiat  f')r  eight  years 
prior  to  his  dcat!)  slie  iiad  been  an  invaliil  and 
unable  to  leave  the  iiouse,  and  tliat  lie,  dnriu" 
that  time,  had  Ijcen  very  kind  and  attentive, 
and  that  slie  depended  upon  iiim.  The 
daugliter  also  was  alloweil  to  testify  tliat  de- 
cea  ed  was  a  kin  I  fither,  tliat  the  social  and 
domestic  relations,   as   to  the    family   on    ins 

{)art,  were  iia;>[iy,  an  1  tliat  he  was  kind  and 
oviiig  to  the  plaintiff. 

Both  of  these  eases  were  affirmed  in  Xehrhnu 
V.  C.  l\  II.  R.  Co.,  02  Cal.   320;   and  in  W'ol- 


ford  V.  Lyons  G.  <L'  S.  M.  Co.,  G3  Id.  48."];  and 
see  McKeerer  v.  Marlet  St.  R.  R.,  59  Id.  '294. 

Evidence  of  decedent's  education  and  liabits 
of  soljriety  and  economy  are  compi^ent  and 
pertinent,  as  tending  to  prove  the  value  of  his 
earnings  had  lie  lived:  Taylor  v.  W.  P.  R.  R. 
Co.,  45  Cal.  .324. 

Funeral  expenses  can  be  recovered  only  as 
special  damages:  Gay  v.  Winter,  34  Cal.  15.'J. 

A  very  valualile  note  upon  this  general 
question  of  damages  for  injuries  to,  and  for 
causing  the  death  of,  relatives  will  Ite  fiumd  in 
4S  Am.  Dec.  G19,  to  the  case  of  Carey  v.  JJerk- 
shire  R.  R.  Co. 

Injuries  by  animals. — The  owner  of  a  dan- 
gerous or  ferocions  animu.1  is  liable  for  the  in- 
jury which  may  result  from  ils  negligent  keep- 
ing: Larerone  v.  Man'jianfe,  41  Cal.  IGS; 
Karr  v.  Part.^,  44  Id.  4(5;  WU/dnson  v.  Parrott, 
32  Id.  102.  In  Lav:  rone  v.  Manfjinnte,  .iiipra, 
it  was  determined  that  a  man  knowing  a  dog 
to  be  vicious  keeps  him  at  his  own  risk,  and  is 
liable  for  any  injury  inflected  by  it  upon  a  per- 
son free  from  fault.  There  the  dog  was  chained 
under  the  door  step  in  such  manner  that  he 
could  not  reach  any  one  ascending  the  steps; 
while  the  plaintiff  was  lawfully  on  tlie  steps,  one 
of  the  boards,  which  was  loose,  slipiied  and  his 
leg  went  through  tlie  opening  and  was  seized 
and  bitten  by  the  dog.  Judge  Crockett  dis- 
sented from  the  opinion  of  t'.ie  court.  li\  Karr 
V.  Parks,  supra,  an  infant  recovered  d.anages 
for  injuries  inliicted  by  a  vicious  cow,  aul  sub- 
se(]aently  the  father  sued  for  damages  and  was 
held  entitled  to  recover  for  his  expenses  in 
healing  tlie  wound,  but  not  for  surgical  opera- 
tions performed  to  remove  disfigurations. 

It  is  not  necessary,  in  an  action  for  damages 
sustained  by  the  bite  of  a  dog,  for  the  plainuff 
to  aver  and  jjrove  that  the  defendant  owin.l 
tlio  animal:  it  is  suliicient  to  prove  t!:at  l.e 
kept  him:   Wilkinson  v.  I'arrott,  32  Cal.  102. 

Prosjnate  damages:  See  cases  herein 
above  cited.  The  supreme  court,  in  Fairhanka 
V.  William>i,  58  Cal.  241,  242 — an  action  for 
conversion — said  that  this  section  "authoiizes 
a  jury  to  find  damages  for  the  detriment  prox- 
imately caused,  and  is  so  far  declaratory  of  the 
common  law.  It  leaves  the  qiiestion  as  to 
what  are  proximate  damages  where  it  was." 
They  t'aen  eonsiilered  siibtlivision  2  of  sec- 
tion 3:>3J,  and  held  that  the  expenses  tliere  re- 
ferred to  must  be  fair  and  jiropeily  expanded. 
The  alleged  injuries  done  to  plaintdx  in  his 
credit  by  a  forcible  entry  and  detainer,  and  sus- 
tained l)y  reason  of  great  mental  and  bodily 
pain  and  anguish,  are  not  proximate:  Andi-rxon 
V.  Taylor,  5G  Id.  131,  citing  earlier  California 
cases. 

•Counsel  fees  expended  in  the  course  of  the 
litigitinn  cannot  be  considered  by  the  jury: 
See  Falk  v.  Wnterm.an,  40  Cal.  224;  lloioell  v. 
Sro;i;i  ns,  43  II.  355.  And  as  to  actions  ex 
contractu,  see  sec.  3300,  in  note. 


3334     WrniKjfiil  ocriipntion  of  real  proprrhj. 

Si:c.  J):)34.  The  detriment  caused  Ly  the  wrongful  occupation  of  real  prop- 
erty, ill  casGH  not  e;nbraced  in  sections  thirt}-- three  hundred  and  thirty-live, 
thirty-three  hundred  and  forty-four,  and  thirty-three  hundred  and  forty-live  of 
this  code,  or  section  eleven  hundred  and  seventy-four  of  the  Code  of  Civil  Proced- 
ure, is  deemed  to  be  the  value  of  the  use  of  the  property  for  the  time  of  such 
occupation,  not  exceeding  live  yeara  next  preceding  the  commencement  of  the 

6S0 


TnxE  II,  Chap.  II.] 


MEASURE  OF  DAMAGES. 


3335 


actiou  or  proceeding  to  enforce  the  right  to  damages,  and  the  costs,  if  any,  of 

recovering  the  possession. 

Damases  iu  ejectment,  goiisrally. — Dam-  Code  Civ.  Proc,  sec.  741.     This  is  only  allowed 

ages  c;'.a  never  be  rccjvcrcil,  in  tlio  action  of  to  be  proved  as  a  set-off  against  the  damages 

ejectment  for  use  and  occupation,  anterior  to  the  for  vvithholdin^5   the   premises,  and  where   no 

existence  of  the  i  UiintifT'a  right  of  possession:  proof  was  introduced  as  to  sacli  damages,  it 

Clark   V.  Boyrean,   11   Cal.  037.     Where   the  was  held  that  proof  of  the  value  of  the  iinprove- 

plaintiiF,  at  the  time  tlic  action  was  brought,  nieuts  was  ri-jhtly  rejected:  Ford  v.  JloUon,  5 

■was  himself  in  posscsjio:!  of  one  hundred  and  Cal.  .322.    Where  defendant  claimed  such  value 

eighty  acres,  pai-cel  cf  the  fi^-e  hundred  acres  in  his  answer,  audit  exceeded  the  damages,  tho 

domamlcd,  and  the  possession  continued  in  him  plaintiff  v.-as  not  allowed  to  recover  any  dam- 

tbreaftcr  to  the  day  of  the  trial,  and  defend-  ages.      The   improvements  allowed    for   were 

ants  i.i  their  answers  denied  the  plaintiff's  title  those  made  before  suit:    U'clrh  v.  SuUivnn,   3 

to  t'le  v.hole  or  any  part  of  t!ic  five  hundred  Id.  ]ol,'i\\;a,ndsci2  YqidUv.  Hoioi'll.  I  I  Id.  4G5; 


acres,  it  M-as  held  t'aat  plaintiffconld  not  recover 
damages  for  the  use  of  the  land  of  which  the 
defendants  liad  never  dispossessed  liim:  Lllls  v. 
Jeni:^,  '2J  11.  278. 

In  a:i  action  to  recover  lands,  the  plaintiff 
can  recover  the  rents  and  profits  only  for  the 
period  ]iriorto  tlie  commencement  of  the  action 
allowed  by  the  statute  of  limitations  if  the  do- 
fcn'.lant,  pleads  the  statute.  A  party  ousted  by 
his  c :j-tc;;ant  can  recover  the  damages  resulting 
from  sucli  ouster  as  well  as  when  ousted  bj'  a 
stranger.  His  injury  ia  no  less  because  ib  was 
done    by   a   co-tenant:  Carpeniier  v.  Zlltchell, 


Moss  V.  Shear,  23  Id.  41.  Bat  the  value  of  the 
improvo'.nents  cannot  be  claimed  if  they  were 
made  before  the  plaintiff's  title  accrued,  nor 
unless  the  holdiu  ( of  defendant  is  adverse:  Baif 
V.  Pope,  IS  Id.  035;  and  adverse  under  color  of 
title:  Lore.  v.  Shartzrr,  31  Id.  405. 

The  value  of  improvements  made  by  mere 
trespassers  cannot  be  claimed:  Carpcndor  v. 
JllllciieU,  29  Cal.  335;  nor  if  they  are  net  per- 
manent; nor  if  they  arc  not  made  in  good  faith: 
Ciirpciitirr  V.  S/n:ill,  35  Id.  335;  Carpenlior  v. 
MiirhfU,  23  Id.  333;  Love  v.  Shartzer,  31  Id. 
4GS;    Carpeniier   v.    Mendevhall,    23   Id.    4S.5. 


23  Cal.  333;  Adams  on  Ejectment,  W'aterman's     When  it  is  provided  in  a  lease  that  i:nprovc- 


ed.,  4'.0;  Coodi'dle  v.  'J'omb^,  3  Wils.  118;  Lnrifj- 
endyck  v.    UnrJuuis,   11   Johns.  4ol;  Cmnp  v. 
Ilonvsle'i,   II  Ired.  L.  212;  llare   v.    Fury,  3 
Ycat.3,   13. 
liocovcry  of  mesne  profits  in  ejeotraent. 


ments  made  during  the  term  shall  be  made  at; 
the  expense  of  the  tenant,  and  that  at  tlie  ex- 
piration of  the  term  he  s'.iall  surrender  t!ie 
premises  to  t'.ie  'es  or,  all  improvements  maile 
by  the  tenant  which  become  a  part  of  the  froe- 


Foraicrly,  in  actions  of  ejectment  damages  were  hold  are  the  property  of  the  landlord:  Gett  v. 

not  recoverable;  the  party  was  obliged  to  resort  McManus,  47  Id.  50.     An  agreement  to  pay  for 

to  an  independent  action.     In  tliis  state  and  in  the   improvements,  if  made,  is  no   defense  in 

otli-r"!  the  rule  is  now  different.     "Under  our  ejectment:  jVorrls  v.  IJoyf,  18  Id.  219.     If  the 

code,"  say  the  commissioners,  "  it  is  competent  dofend:int  pleads  the  statute  of  limitations,  the 

for  tlie  p!ai;itiff  to  recover  real  property  with  plaintiff  can  only  recover  the  rents  and  profits: 

damage!  for  withholding  ib,  and  the  rents  and  Carpeniier  v.  jilitcftelt,  23  Id.  330;  or  damages 


profits,  all  in  the  same  action  and  as  one  cause 
of  action:  SnUlvan  v.  Davis,  4  Cal.  232;  Clark 
V.  Doyna.i,  1-1  Id.  C37.  In  Jlfoody  v.  McDon- 
ald, 4  Id.  297,  "smart-money"  is  not  allowed: 
De  Costi  V.  Mass.  Miii.  Co.,  17  Id.  013;  (,'hip- 
man  v.  Ilihhard,  0  Id.  102.  Where  there  is  no 
malice,  damages  a.e  limited  to  natural  and  di- 
rect ennscquences  of  the  act,  which  may  be  com- 
puted. Damages  to  mines  and  mining  ))rop- 
crty:  Ca'.en  x.'Fdt,  ?,.)  1 1.  431;  Autoiiie  Co.  v. 
Hldje  Co.,  2:]  Id.  213;  Maye  v.  Tappaii,  Id. 
30G.     For  a  fraud  i.i  the  sale  of  a  nnne  plaintiff 


for  the  detention  for  thrcj  years  next  before  tlie 
commencement  of  the  action:  Love  v.  Sliartzcr, 
31  Id.  438. 

Permanent  improvements  made  by  one  hold- 
ing under  color  of  title,  in  good  failh,  allowed 
as  a  set-off.  Ouster  being  denied,  and  the  dam- 
ages ad:nitted  wliich  were  reeove:-ed  in  a  judg- 
ment for  plaintiff,  he  recovers  cost:  Lawton 
V.  Cord  >n,  37  Cal.  232.  When  the  damage 
awarded  does  not  specify  whetlier  allowed  for 
mesne  profits  or  damages,  or  both,  the  pre- 
sumotiun    \i  that  the  evidence  sustained    the 


m:iy  recover  a  larger  sum:  Ahrend  w  Alhr,'^'^  judgment:  McCartJiy  w  Yale.  ?<d  Id.  5S5. 
Id.  033.  0:ie  for  whose  benefit  in  i)art  men  are  Forclblo  di3po333.33lo:i  of  tDuant  by  land- 
emph)yed,  with  his  knowledge  and  consent,  to  lord. — li  was  held  th  it  if  a  l.mdlord  enters  and 
remove  Ijuildings  an  I  fences  from  lands,  turn  ejects  the  tenant,  the  tenant  may  recover  dam- 
out  tin;  occupants,  and  t.dio  possession  tliereof,  ages  for  the  vegetables  and  gripe- vines  growing; 
is  cqnaily  liable  wit'n  the  one  who  actually  em-  on  the  1  m  1,  an  I  planted  by  the  tenant  for  sale, 
ploved  tir;  mvn:  Treat  \.  Udxy.?,')  Id.  123."  he  not  being  permitted  to  enter  and  gather 
S3t-o2  of  value  of  improvements:  See  them:  Fox  v.  Brissac,  15  Cal.  223. 

3335.    Wniful  holding  over. 

Snc.  3335.  For  willfully  holding  over  real  property,  by  a  person  who  entered 
ujoon  the  same,  as  guardian  or  trustee  for  an  infant,  or  by  right  of  an  estate 
terminable  with  any  life  or  lives,  after  the  termination  of  the  trust  or  particular 
estate,  without  the  consent  of  the  party  immediately  entitled  after  such  termina- 
tion, the  measure  of  damages  is  the  value  of  the  prolits  received  during  such 
holding  over. 

lenninatio  i  cf  trustees'  estate:  See  sec.  871. 

581 


§3336 


RELIEF. 


[Div.  IV,  Part  I, 


3333.    Conversion — Measure  of  damages. 

Sec.  333G.  The  detriment  caused  by  the  wrongful  conversion  of  personal 
property  is  presumed  to  be: 

1.  The  value  of  the  property  at  the  time  of  the  conversion,  with  the  in- 
terest from  that  time,  or,  where  the  action  has  been  prosecuted  with  reasonable 
diligence,  the  highest  market  value  of  the  property  at  any  time  between  the 
conversion  and  the  verdict,  without  interest,  at  the  option  of  the  injured  party; 
and, 

2.  A  fair  compensation  for  the  time  and  money  properly  expended  in 
pursuit  of  the  property.  [Amendment,  aj^proved  Janaar}/'22,  1878;  Amendments 
1877-8,  89;  loolc  effect  immedlatehj .^ 


Tills  aniGnam3nt  rastorea  the  section  as 
it-v7a3  orij-Qally  adopiod.  At  the  sugges- 
tion of  i!ie  code  oxa;ni:iers,  it  wa3  amended  in 
lS73-i,  by  confining  the  measure  of  damaLje 
descri!)ed  in  the  first  clause  to  the  value  of 
the  property  at  the  time  of  the  conversion  and 
interest.  Prior  to  this  amendment  of  1873,  in 
187(5,  the  defendant  converted  certain  stock  of 
the  plaintiff,  and  it  was  held,  on  appeal  from  a 
jiid^jment  rendered  after  the  amendment  in  an 
action  conimencedprior  thereto,  that  the  plaint- 
iii  was  entitled  to  recovi-r  tlie  damages  ac- 
cording to  the  amended  section;  that  is,  the 
highest  market  value  of  the  stock  at  anj'  time 
betvv'cen  the  conversion  and  tlie  verdict:  Dent 
V.  Ilolhrooh,  54  Cal.  115.  See  also  T alley  v. 
TrcDior,  5:>  Id.  274;  there  t!ie  action  was  com- 
menced before  the  amendment  of  1871,  above 
alluded  to,  for  a  conversion,  but  tlie  amendment 


and  entitled  to  the  exclusive  possession  of  the 
property,  it  was  held  that  as  there  was  no 
averment  in  the  complaint,  nor  any  proof  that 
the  claim  of  the  lessee  for  damages  was  assigned 
to  the  plaintiff,  the  action  would  not  lie:  Tris- 
coirtf  V.  Orr,  40  Id.  G 17,  CIS. 

In  an  action  to  recover  the  possession  of  per- 
sonalty, if  the  plaintiff  alleges  that  he  is  iu 
possession,  he  states  no  cause  of  action:  Car- 
man V.  A'o.s's",  (j4  Cal.  219. 

There  can  be  no  doubt  as  to  the  general 
proposition  that  if  the  bailee  of  personal  prop- 
erty sells  it  in  violation  of  his  authority,  the 
owner  may  ratify  the  transaction,  and  demand 
tiie  proceeds  of  the  sale.  But  the  court  thought 
the  reason  of  the  rule  ceased  when  applied  to 
stocks;  that  it  was  impossible  that  any  sane 
person  tshould  have  centered  his  airectioiis  upon 
a  particular  stock  certificate,  or  that  any  vio- 


was  held  to  operate  in  determining  tlie  measure     lence  coukl  be  done  to  his  feelings  by  requiring 


of  damages  to  bo  awarded  at  the  trial. 

TIlii  ssotioa  not  ax)Dlijnbl3  to  reolsvin 
Buiis:  See  Kclhi  v.  McK'thhen,  54  Cab  102. 
where  the  distinction  between  trover  and 
replevin  suits  witli  respect  to  the  measure  of 
damages  is  cleaidy  stated  in  the  opinion  ren- 
dore  1  on  the  petition  for  reliearing,  and  this 
section  declared  not  to  apply  to  the  latter 
class  of  actions;  so  also  Rediiirjtoii  v.  Nunan, 
(50  id.  G32. 

Trover,  gsnsrally.— It  is  well  .settled  that 
a  jierson  having  neitlier  the  possession  nor  the 
right  to  possession  of  personal  chattels  cannot 
maintain  trespass  or  trover  for  an  injury  done 
to  the  property:  Midd'esivorlh  v.  Sedrjuncic,  10 
Cal.  302;  see  also  2  Hilliard  o  i  Torts,  502; 
Edwards  on  Bailm.,  sec.  31.");  2  Greenl.  Ev., 
Ecc.  GIG;  Story  on  Bailm.,  sees.  303,  304;  Put- 
nam v.  Wi/!e]i,  S  Johns.  432;  MiKj'jrkhji'  v. 
IJivlelh,  9  Pick.  233.  Any  unlawful  interfer- 
ence v/itli  the  property  of  another,  or  exercise 
of  dominion  over  it  whereby  he  ii  damni.led, 
will  support  trespa'^s  or  trover:  Rider  v.  Edjar, 
{/4Cal.  127,  whcreasheri.'Fha.l  levied  an  attach- 
me:it  on  the  plaintiff's  per.jonalty,  and  placed 
a  keeper  in  charge,  althougli  the  property  was 
not  moved,  and  was  released  before  any  demand 
by  the  plaintiff. 

Tlio  issuance  and  service  of  an  injunciion  to 
prevent  jdaintiff  from  removing  iiis  own  gas- 
fixtures  is  not  of  itse'f  a  conversion  by  the 
party  suing  out  the  writ:  Lavey  v.  Deawlnj,  53 
Cd.  G03.  \Vhen  a  refusal  by  tlie  president  of 
a  mining  company  to  deliver stocl;  \i  not  a  con- 
ve-sion,  see  Hewlett  v.  Oine,i.'<,  51  Id.  570. 
^Vhere  an  action  was  brou-;ht  for  a  tres[)ass 
d'  f'0>iis  a^^ior'aliK,  comniited  while  the  lessee 
of   tiie  plainLiif  was  in    \\q  actual  possession. 


him  to  accept  another  ccrtiflcate  of  precisely 
similar  character  in  lieu  of  it;  that  liis  own  ccr- 
tiflcate was  only  the  evidence  that  he  owned 
an  undivided  interest  in  the  capital  and  busi- 
ness of  the  corporation;  and  that  a  different 
rule  should  govern  tlie  conversion  of  certilicates 
of  stock;  and  if  the  wrong-doer  was  at  all  times 
ready  and  willing  to  transfer  to  the  owner  an 
equivalent  number  of  similar  shares  in  the 
same  company,  by  a  proper  and  valid  certifi- 
cate, it  would  present  a  case  for  nominal  dam- 
ages only:  Thompson  v.  Toland,  48  Cal.  99; 
Atkins  V.  Gamble,  42  Id.  92,  98;  see  Von 
Schmidt  V.  Bourn,  50  Id.  GIG.  And  in  Payne 
V.  E  Hot,  54  Id.  339.  the  action  for  converting 
shares  of  stock  was  upheld.  An  action  was 
brought  against  the  sheriff  to  recover  damages 
for  the  unlawfnl  taking  from  the  possession  of 
the  plaintiff  i,  •I'lid  carrying  away  of  certain  per- 
sonal property,  and  for  the  detention  of  the 
same.  The  court  said  that  trover  lay  where 
trespass  de  bonis  lay;  and  an  unlawful  taking, 
if  followed  l)y  the  carrying  away,  was  of  itself 
a  conversion:  Ch.  PI.  154;  and  held  that  a  state- 
ment that  defendant  took  and  carried  away  is 
equivalent  to  the  averment  "converted  to  his 
own  use,"  etc. :  Iliifchimjs  v.  Castle,  48  Cal.  155. 
If  a  special  administrator,  without  authority, 
sells  stocks  ])ledged  to  the  deceased,  this  is  not 
a  conversion  by  the  estate:  Von  Schmidt  v. 
Boitrn,  50  LI.  GIG. 

The  defendant  in  pleading  is  not  bound  to 
anticipate  the  plaintilF's  case  and  assume  un- 
der whom  he  will  claim  title:  Cram  v.  Bir- 
ney,  53  Cal.  254;  Humphreys  v.  Uarkey,  Id. 
23.). 

Measure  of  dama^ss  in  trover:  See  the 
various  questions  connected  with  this  subject 


582 


Title  II,  Chap,  n.] 


MEASURE  OF  DAMAGES. 


§3336 


discussed  in  the  note  to  Baker  v,  Wheeler,  2-i  sion  on  the  part  of  such  officer  in  the  seizure. 

Am.  Dec.  70-88.  the  court  held  the  measure  of  damages  was  tha 

Subd.  1.     Highest  msirket  value,  etc. — If  value  of  the  property  at  the  time  itWas  seized, 

plaintiff  does  not  exercise  his  option,  damages  and  legal  interest  on  such  amount  from  the 

maybe  awarded  under  either  rule:  Barraide  v,  time  of  seizure  up  to  the  time  of  the  reuditiou 

Gar  rait,  i)Q  C&\.  115.  of  the  verdict:   Phelps  v.  Owens,  11   Cal.   22;. 

The  market  value  is  to  be  ascertained  at  the  Pelbirrj  v.  Gorhain,  23  Itl.  349.  Plaintiff  cau- 
place  of  conversion:  llamer  v.  Hathaway,  33  not  recover  the  value  of  the  goods  and  also  the 
Cal.  110;  Jfourjlins  \\  AVft/i!,  9  I<1.  oG2;  see  also  profits  wiiich  might  have  been  made  on  their 
Dent  v.  Ildbrooh,  54  Id.  145,  where,  in  an  ac-  sale:  llut!er\.  Collins,  12  Id.  4G0.  An  instruc- 
tion before  the  auiendment  of  1878,  but  judg-  tion  as  follows:  "  In  estimating  the  value  of  the 
ment  rendered  thereafter,  the  highest  market  property,  you  will  take  as  the  basis  of  your  ver- 
value  was  a. lowed.  diet  the  cash  value  of  the  articles  in  tlie  market 

Where,  in  an  action  to  recover  possession  of  at  the  time  they  were  taken  out  of  the  posses- 
personal  pi'operty,  the  person  making  an  ath-  sion  of  the  plaiutifT  by  defendant.  What 
davit  (lid  not  tiuly  state  the  value,  and  the  amount  of  money  will  it  take  in  the  market  to 
officer  or  his  sureties  are  sued  for  taking  the  replace  the  articles  seized  by  the  sherifl?  That 
same,  they  may  set  up  tlie  true  value  of  the  sum  will  be  the  measure  of  damages" — was 
same  in  their  answer:  Code  Civ.  Proc,  sec.  473.  held,  taken  altogether,  to  give  the  true  stan- 
Whe:e  tho  pro))erty  is  tlelivered  and  accepted  dard  of  damages:  Cctn^iiv.  Marshall,  18Id.  GS9. 
pending  the  suit,  that  is,  before  verdict,  the  In  an  action  for  wrongfully  taking  gold  from  a 
damages  should  be  merely  nominal;  but  where  mining  claim,  if  defen<lants  decline  to  prove  the 
the  goods  are  only  delivered  after  verdict,  it  exact  amount  they  have  taken,  as  the  evidence 
must  be  presumed  that  the  delivery  was  in  pur-  of  the  amount  is  necessarily  exclusively  con- 
suance  of  the  verdict,  which  had  already  deter-  fined  to  or  uuiler  the  control  of  the  defendants, 
mined  the  rights  of  the  parties.  A  referee  the  plaintiffs  must  rely  to  a  great  extent  upon' 
found  as  part  of  damages  the  difference  in  the  judgment  and  estimates  of  men  who  are  not 
value  of  certain  iron  ab  the  time  of  detention  fully  acquainted  with  the  facts;  and  if  more 
and  delivery,  and  judgment  M'as  entered  on  the  than  the  real  amount  is  given  as  damages  the 
report.  The  supreme  court  held  that  there  was  defcuilants  cannot  complain:  Antoine  Co.  v. 
no  principle  of  law  which  recognized  such  a  /i'«/./f  Co.,  23  Id.  221.  In  such  a  case  the  right 
measure  of  damages.  The  most  liberal  rule  of  plaintilFs  to  recover  damages  which  they  have 
would  allow  the  highest  value  of  the  goods  at  actually  sustained  is  not  affected  by  the  fact 
any  time  Ijctvveen  tlie  conversion  and  the  judg-  that  the  trespass  was  not  willful  in  its  cliarac- 
ment,  and  interest  thereupon.  But  that  where  tor.  The  true  measure  of  damages  is  the  value 
the  pla.ntiff  accejits  the  goods,  he  makes  his  of  the  gold-hearing  eartli  at  the  time  it  is  sepa- 
election  to  take  the^oods  in  lieu  of  their  value,  rated  from  the  surrounding  soil  and  becomes  a 
and  tlie  only  damage  he  can  recover  is  the  chattel.  In  estimating  the  damages,  the  ex- 
iutercst  upon  their  Inghest  value,  except  in  pcnse  of  separating  the  earth  from  tlie  golJ 
cases  wliere  some  special  damage  is  specilically  after  it  is  moved  to  the  place  of  washing  is  to 
averred  in  the  complaint:  Conroy  v.  Flint,  5  be  deducted  from  the  value  of  the  gold.  Unless" 
Cal.  320.  The  court  also  held  that  when  prop-  a  demand  is  made  for  the  possession  of  the  gold 
erty  converted  had  a  fixed  value,  the  measure  after  it  is  separated  from  the  earth,  and  an  ac- 
of  damages  was  tiiat  value,  with  the  legal  in-  tion  is  then  brought  for  the  conversion  of  the 
terest  from  the  time  of  its  conversion:  Doitijl'iss  chattel,  the  measure  of  damaL'es  would  be  the 
V.  Kraft,  9  Id.  502.  Where  the  value  was  value  of  the  gold  detained:  Maye  v.  Tappan, 
fluctnauiiig.  the  court  said  the  correct  measure  Id.  .300.  The  measure  of  damages  depends,  in 
was  the  iiighest  market  value  within  a  reason-  some  instances,  on  the  way  in  which  plaintiff 
able  time  after  tho  property  was  taken,  with  puts  his  case.  Thus,  where  defendant  broke 
interest  from  that  time:  Pa(je  v.  Fowler,  30  Id.  down  and  removed  plaintiff's  fence,  the  court 
412.  held  that  if  plaintiff  had  sued  for  the  damage 

And  that  interest  on  the  value  at  the  time  of  to  the  freehold  he  nd^^ht  have  recovered  the 
the  conversion  is  recoverable,  see  Pujol  v.  il/c-  value  of  tho  fence  as  ib  stood,  if  it  was  a  part  of 
K'uite;,',  42  Cal.  559;  see  also  abundant  citation  the  realty.  But  having  elected  to  sue  in  ro- 
of auLhorities  in  note  to  Baker  v.  Wheeler,  24  plevin  for  the  materials  as  personal  property. 
Am.  Dec.  71.  he  could  only  recover  their  value  as  such:  Pea- 

Some  (|ualification  of  the  rule  may  be  found  iiyberhcr  v.  MrDo't'icd,  48  Id.  1()4. 
necessary  when  there  has  been  an  unreasonable  Rsasonabla  diligence. — The  conversion 
delay  in  bringing  suit,  or  under  special  circum-  took  place  on  the  twenty-sixth  of  March,  1879, 
Btanccs.  It  Was  held  that  the  market  value  and  tho  action  was  brought  on  the  third  of  May, 
is  to  be  ascertained  at  the  place  of  tho  convcr-  1870;  this  was  thought  to  be  reasonable  dili- 
Bion,  and  that  interest  was  to  be  allowed,  as  a  gence  ia  bringing  tlio  action,  within  the  mean- 
matter  of  legal  right,  from  the  time  at  wliieh  ing    ' "' '      '' ^^'' —  ^^'' — '"  "^   ^'' 


the  value  is  estimated:    llamer  v.  JJathaway, 
33  Cal.  no,  120. 

Tiic  supreme  court  held  it  error  to  allow 
proof  of  injury  to  jilaintiff's  business,  as  a 
critcriou  of  damage,  in  an  action  against  the 
sheriff  for  seizing  j'laintiff's  goods  under  at- 
tachment. withouLany  improper  motive:  Nijht- 
in<iale  v.  Scunuell,  18  Cal.  315;  Dexter  v.  Paiiyh, 
Id.  372. 


f  the  code:  Fromni  v.  Sierra  Nevada  S,  M. 
Co.,  (H  Cal.  620. 

Subd.  2.  Fair  compensation  for  time 
and  expenditures. — "■Bennett  v.  Lochoood, 
20  Wend.  22.'];  see  Miliar  v.  Garlimj,  12  How. 
Pr.  203.  This  text  is  sustained  in  Page  v. 
Fowler,  ^Vi  Cal.  412,  wherein  Khodca,  C.  J., 
says:  '  We  are  content  to  follow  tho  general 
rule  announced  in  Domjlass  v.  Kr^'ft,  9  Id. 
502,    which   latter  case  is   also    approved  in 


In  an  action  against  a  sherifT  for  wrongfully  llamer  v.  Ilnthaway,  33  Id.  117,  where  it  ia 
seizing  and  selling  property  under  an  execution,  sail  that  this  is  no  longer  an  open  question  ia 
and  where  there  was  no  wautouuess  or  opprcs-    this  state.'    Interest  is  allowed  in  addition  to 


583 


$§3337-3340 


RELIEF. 


[Div.  IV,  Paut  I, 


sec.  3352,  and  ScoU  v.  Rogers,  31  N.  Y.  076:" 
Commissioners'  note. 

Under  til  is  allowance  of  damages  it  is  neces- 
sary to  a  recovery  tiiat  t'he  amounts  paitl  were 
just  and  resouable  for  the  service  iierfornied: 
Fa-rbaid-H  v.  Williams,  58  Cal.  '241,  wiiere  the 
finding  as  to  amounts  expended  was  held  un- 
supiiorted  by  the  evidence. 

Non-delivery  of  chattel  sold  and  paid 
for  a  conversion:  Sec.  3309. 

Attorneys'  fees  were  alleged  as  an  element 
of  damage,  Ijut  regarded  as  surplusage,  in  J/c- 
Doiiald  v.  AlcCoiiLey,  57  Cal.  325. 


the  hi,f;hest  market  value  of  personal  property 
•f  fluctuating  value,  estimateil  within  a  rea- 
Boiialjlc  time  after  the  taking,  as  the  measure 
«f  dnmagcs:  Pcnie  v.  Fonicr,  '28  Id.  605;  S.  C, 
37  Id.  100;  S.  C.,  39  Id.  415.  In  the  latter 
cdse,  Justice  Temple  very  elalwrately  goes  over 
the  entire  subject,  holding  that  in  cases  affect- 
ing property  of  a  fluctuating  value,  where 
exemplary  damages  are  -not  allowed,  the  cor- 
rect measure  of  danuiges  is  the  highest  mirket 
value  within  a  reasonable  time  after  the  prop- 
erty was  taken,  with  interest  computed  from 
the  time  snc!i  value  was  estimated.  See  also 
(kt.-i-.iii  V.   Marshall,   IS  Id.    GS9^,  See  note  to 

8237.   Same. 

Sec.  3337.  Tlie  presumption  declared  by  the  last  section  cannot  be  repelled 
in  favor  of  one  whose  possession  was  wrongful  from  the  beginning,  i>y  his  subse- 
quent application  of  the  property  to  the  benefit  of  the  owner,  without  his  consent. 

8338.    Damayes  of  lienor. 

Sec.  3338.  One  having  a  mere  lien  on  personal  property  cannot  recover 
greater  damages  for  its  conversion,  from  one  having  a  right  thereto  superior  to 
his,  after  his  lieu  is  discharged,  than  the  amount  secured  by  the  lieu,  and  the 
compensation  allowed  by  section  thirty-three  hundred  and  thirty- six  for  loss  of 
time  and  expenses. 


Damage  for  conversion  of   personalty, 

generrdly:  Sec.  ;;33G. 

Damages  recoverable  by  lien  or  couver- 
Bfon  of  his  personalty. — It  was  said  that  in 
an  action  by  the  pleilgee  .against  a  stranger  for 
the  conversion  of  goods  the  phuntifiF  is  entitled 
to  recover  the  full  value  of  the  goods  because 
hfe  is  answerable  over  to  the  pledgor  for  the 
Biirplus.  But  if  the  good.s  be  converted  by  the 
owner  or  by  any  one  acting  in  privity  witli  him, 
the  ])ledgee  can  recover  only  tlie  value  of  his 
special  interest  in  the  pledge:  Treadicell  v.  Da- 
vii,  31  Cal.  006;  Story  on  Bailm.,  sec.  352. 
And  many  cases  maj*  be  cited  to  su[>port  this 
rule,  tliat  as  against  the  general  owner  or  those 
claiming  under  him  the  holder  of  a  special  in- 
terest in  personal  property  is  limited  in  case  of  its 
conversion  to  the  extent  of  his  interest  therein: 
Jiitjer-ioll  V.  Van  Bokkdiii,  7  Cow.  670,  a  lienor; 
JJaciilsoii  V.  Giuisoll'i,  1  Mich.  388,  a  lienor; 
limsi'll  V.  Butterjiel'd,  21  Wend.  300,  a  mort- 
gagee; Bark  V.  Wthb,  32  Mich.  173,  a  receiver; 
White  V.  Webb,  15  Conn.  302,  a  mortgagee;  Lijle 
V.  JJai-br,  5  Binn.  457,  a  pawnee;  iSchley  v. 
Lyon,  6  Ga.  530,  a  trustee. 

As  aijainst  straaijevs,  the  special  owner  is 
not  limited  to  the  amount  of  his  interest  in  the 
chattel,  but  may  recover  its  full  value  on  con- 
version: Mcihaiiics' il'  T.  Bank  v.  Farmers'  d;  M. 
Bank,  GO  N.  Y.  40,  a  lienor;  Cullm  v.  O'l/ara,  4 
Mich.  132,  an  adniLnistrator;  Burk  v.  Webb,  Zi 


Id.  173,  a  receiver;  freeman  v.  Undericood,  06 
Me.  229,  a  lessee;  Hill  v.  Larro,  53  \'t.  029,  a 
lienor;  Pomeroy  v.Snut/i,  17  Pick.  85,  a  i)ledg.e; 
UUmun  v.  Bam'n-d,  7  Gray,  554,  a  pledgee; 
Finn  v.  Western  B.  B.  Corp.,  112  Mass.  524,  a 
consignor  of  goods  in  transitu. 

The  amdinit  secnnd  the  Ttuasnre. — Notwith- 
standing tlie  interest  of  the  lienor  may  ex- 
ceed the  value  of  the  chattel,  yet  he  v.iil  not 
be  entitlctl  to  recover  a  greater  auiouut  tlian 
the  total  value  of  the  chatiel:  Frost  v.  Wdlanl, 
9  Barb.  441;  IIa:is  v.  Riddle,  1  Sundf.  248;  .SVa- 
m<in  V.  Lure,  2.i  Barb.  240;  Clark  v.  Lv//,  61 
Ga.  147;  Waruer  v.  Vallidy,  13  11.  I.  483; 
JJttr.^t  V.  Colfi/,  15  Fed.  lie[).  645.  To  this 
measure  must  be  added,  in  this  state,  the  le- 
CO  very  for  loss  of  time  and  expense:  See  the 
section,  .-iipra. 

Conversion  of  mortgaged  chattel. — The 
same  rule  of  law  prevails  in  actions  by  tlie 
mortgagee  for  a  conversion  of  the  mortgaged 
chattel  as  above  stated:  Mnniu)i<jv.  Monaijhan, 
2S  N.  Y.  585;  Parish  v.  W/i<-eler,  22  Id.'  494; 
Chadwick  v.  Lninb,  29  Baib.  518;  /li/.^srll  v. 
Butf.erfichl,  21  Wend.  300;  Bailey  v.  Codfrnf, 
54  111.  507;  Becker  v.  Dunham,  27  Aiiiuu.  32; 
II'«/v/  V.  Jffnry,  15  Wis.  239;  While  v.  W.bh, 
15  Conn.  302;  Ln.^'e  v.  Jones,  39  N.  J.  L.  7u7. 

Levy  oa  mortgaged  chattel:  See  as  to  d  uty 
of  officer,  sec.  29G9,  ante. 


3339.  Seduction. 

Sec.  3339.    The  damages  for  seduction  rest  in  the  sound  discretion  of  the  jui-y. 
Seduction,  action  by  \inniarried  female:        Seduction,  actions  by  parent  or  guardian; 
Gbdo  Civ,  Proc.,  sec  374.  Code  Civ.  Proc.,  sec.  375. 

3340.  Injuries  to  animals. 

Sec.  3340.  For  wrongful  injuries  to  animals  being  subjects  of  property,  com- 
mitted willfully  or  by  gross  negligence,  in  disregard  of  humanity,  exemplai-y 
damages  may  be  given. 

iisemplary  damages,  gsnerally:  See  sec.  3294,  and  note. 

584 


Title  II,  Cha?.  II.]  MEASURE  OF  DAMAGES.  §§  3341-334^ 

S341,    Killing  sheep  hy  dogs. 

Sec.  3341.  The  owner,  possessor,  or  liarborer  of  any  d&g  or  otlier  animal 
that  shall  kill,  worry,  or  wound  any  sheep,  Angora  or  Cashaiere  goats,  shall  be 
liable  to  the  owner  of  the  same  for  the  damages  and  costs  of  suit,  to  be  recov- 
ered before  any  court  of  competent  jurisdiction: 

1.  In  the  prosecution  of  actions  under  the  provisions  of  this  chapter,  it  shall 
not  be  necessary  for  the  plaintiff  to  show  that  the  owner,  possessor,  or  harborer 
of  such  dog  or  other  aninial  had  knowledge  of  the  fact  that  such  dog  or  other 
animal  woul-d  kill  or  Avound  such  sheep  or  goats; 

2.  Any  person,  on  finding  any  dog  or  dogs,  not  on  the  pi^emises  of  its  owner 
or  possessor,  worrying,  wounding,  or  killing  any  sheep.  Angora  or  Cashmere 
goats,  may  at  the  tinae  of  so  finding  said  dog  or  dogs  kill  the  same,  and  the 
owner  or  oxvners  thereof  shall  sustain  no  action  for  damages  against  any  i:)erson 
so  killing  such  dog  or  dogs.  [New  section,  approved  Marcli  13,  1883;  Slcdales 
and  Amendments,  1883,  283.] 

ARTICLE   III. 

PENAL   D.\MAGES» 

5344.  Failure  to  quit,  after  notice. 

Sec.  334-4.  If  any  tenant  give  notice  of  his  intention  to  quit  the  premises, 
and  does  not  deliver  up  the  possession  at  the  time  specified  in  the  notice,  he 
must  pay  to  the  landlord  treble  rent  during  the  time  he  continues  in  possession 
after  such  notice. 

5345.  Tenant  willfully  holding  over. 

Sec.  3345.  If  any  tenant,  or  any  person  in  collusion  with  the  tenant,  holds 
over  any  lands  or  tenements  after  demand  made  and  one  mouth's  notice,  in 
■writing  given,  requiring  the  jiossession  thereof,  such  person  holding  over  must 
pay  to  the  landlord  treble  rent  during  the  time  he  continues  in  possession  after 
such  notice. 

Damages  for  unla^^rful  detainer:  See  Code  getlier  for  one  hundrefl  and  fifty  dollars  or  two- 
Civ.  Proc,  .sees.  117-t  et  seq.;  ami  LI.,  sec.  To"),  hundred  dollars  yer  month,  wh.It'  tlit;  demised 

It  is  mailo  the  duty  cf  the  couit  to  trehle  pcmiscs  only  brought  mucli  le-s,  the  court  held 
the  (liiuiagos  found:  I^a^^•0)t  v.  Whltixy,  23  that  such  damage  was  not  a  proper  suhj.ct  of  in- 
Cal.  37S;  Tcrk'ihury  v.  0'Co/i»e 7,  "23  Id.  20 '>;  quiiy,  hccaase  it  related  to  proptrty  respecting^ 
but  it  sceuis  a  question  whether  the  treliling  wliicli  there  was  no  subsisting  relation  of  land- 
ought  not  to  be  claimeil  as  part  of  the  relief,  lord  and  tenant  between  tlic  parties.  The 
Wiieu  (lauriges  are  claimed  which  do  not  neccs-  plaintiffs  were  entitled  to  judg^ncnt  f'lr  resti- 
sarily  result  imm  the  forcible  entry  or  detainer,  tution  of  the  premises,  and  a  jmlgmeut  for 
title  to  t  le  property  alleged  to  have  been  in-  tlire;;  times  the  amount  of  the  d:iniages  wliich 
jurud  may  be  a  pmper  subject  of  inquiry.  If  they  sustaineil  l)y  the  unlawful  detainer.  The 
thjplaiiitilF  does  not  own  buildings,  he  does  not  measure  of  damaga  in  sacli  case  was  tlie  actual 
sustain  dwaagea  to  the  extent  of  their  value  by  vahie  of  the  use  and  occupation  of  tlie  ])rem- 
their  <l(3tniclii>n:  Wnrbiirlon  v.  Dohle,  :^S  Cal.  iscs  while  unlawfully  detained:  Koir-  r\\  Gliick, 
€20.  If  t'iie  plaintiff  was  only  ousted  from  a  33  LI.  402.  Tlie  damages  to  be  recovered  nmst 
part,  he  is  not  entitled  to  recover  d. images  for  be  the  natural  an  I  proximate  consequence  of 
the  deieiitmn  of  the  whole:  Tkonip.ioiiw  Sinilh,  tlie  act  complained  of;  accordiiigly.  an  allega- 
28  Id.  ."):!{.  Where,  in  an  action  for  holding  tion  that  tlie  complainant,  by  reason  of  the 
over  Ijy  a  tenant,  plaintiffs  cl. timed  t'.iat  they  forcible  entry  and  det..incr.  had  suiFered  greatly 
could  n')t  rent  one  part  of  land  without  having  in  his  credit,  and  great  bodily  and  mental  pain 
possession  of  the  part  demised  to  defendants,  and  anguish,  will  not  support  a  judgnicui  for 
and  that  they  could  have  rented  the  whole  to-  damages:  Aiidemoii  v.  Taylor,  5G  Id.  131. 

8346.    Injuries  to  trees,  etc. 

Sec  3»U(5.  For  wrongful  injuries  to  timber,  trees,  or  underwood  upon  the 
land  of  another,  or  removal  thereof,  the  measure  of  damages  is  three  times  sucb 
a  sum  as  would  compensate  for  the  actual  detriment,  except  where  the  trespass 
■was  casual  and  involuntary,  or  committed  under  the  belief  that  the  land  belonged 
to  the  ti-esjiasser,  or  where   the  wood  was  taken  by  the  authority  of  highway 

iiS.'> 


:§§  3347-3354  RELIEF.  [Div.  IV,  Part  I, 

-officers  for  the  purposes  of  a  liigliway;  in  which  cases  the  damages  are  a  sum 
equal  to  the  actual  detriment. 

Cutting    do'wn    trees. — Tlie    measure    of  take  as  to  the  boundary  or  location  of  a  tract 

damages  fur  cutting  trues,  etc.,  is  not  the  ac-  of  land  claimed  by  the  defcuilant:^  Barnes  v. 

tual  value  of   tiie  trees  for  tire-wood,  but  the  Jonea,  51  (Jal.  303;  Batchddcr  v.  Kelly,  10  N. 

damage  done  to  tiie  land  by  reason  of  destroy-  H.  430;  Russdl  \.  Irhy,   13  Ala.   131;  Perkins 

iiig  them.     This  damage  should  be  estimated  t.  llnckelman,  26  Miss.  41;  WhUecniftw   Van- 

by  all  the  circumstances  and  the  purposes  for  derver,  12  111.  235.    The  ccu'tfuither  said  that 

■n  hich  tlie  trees  are  used  or  designed,  and  not  while   the  title  of  an  act  m  ill  not  control  the 

according  to   the  speculative  or  fancied  ideas  language  in  the  body,  but  may  be  rcf(!ircd  to 

that  the  juiy  or  plaintiff  may  draw  of  their  as  intending  to  explain  the  intention  when  the 

worth:  Chipmanw  Ulbherd,  G  Cal.  102.  language  is  doubtful,  if  the  head-note  of  tliis 

Wliere  there  was  no  averment  that  the  tres-  chapter  was  to  be  consulted,  ib  was  apparent 

pass  was  committed  knowingly,  willfully,  or  that  it  was  intended  to  apply  to  willful  tres- 

maliciously,  and  the  answer  denied  that  ])laint-  passes  only.     The  supreme  court  also  held  that 

iff  owned  any  of  the  land   described  in   the  the    finding    that    defendant    committed    the 

complaint,  except  a  certain  specilled  portion  trespass    unintentionally    and    through     mis- 

thereof,  and  that  any  of  the  timber  was  cut  on  take,  could  not  be  said  to  be  outside  of  the 

this  portion,  and  the  court  found  that  the  de-  issues   raised  by  the  pleadings;    hut  that  the 

fendants  cut  and  carried  away  from  the  plaint-  complaint  failed  to  state  a  case  entitling  the 

iff 's  land,  described  in  the  complaint,  limber  plaintiff    to   treble   damages,    there   being  no 

of  the  value  of  one  thousand  two  hundred  dol-  averment  that  the   trespass  was  willful;   and 

lars,  but  that  they  entered  under  a  mistake  as  tliat  this  chapter  by  its  heading  required  that 

to  the  identity  of  the  land,  believing  it  to  be  a  the  trespass   must    be   willful   to   entitle   the 

portion  of  another  tract  which  they  claimed  by  plaintiff  to  the  penal  damages:  Barnes  v.  Jones, 

purchase,  and  the  court  trebled  the  damages,  51  Cal.  303. 

the  supreme  court  said  that  the  statute  was  not        Tresprass  for  cutting  and  carrying  away 

intended  to  apply  to  cases  in  which  the  tres-  trees:  !See  also  sec.  735,  Code  Civ.  Proc. 
pass  was  committed  through  an  innocent  mis- 

3347.  Injuries  inflicted  in  a  duel. 

Sec.  3347.     If  any  person  slays  or  permanently  disables  another  person  in  a 

duel  in  this  state,  the  slayer  must  provide  for  the  maintenance  of  the  widow  or 

wife  of  the  person  slain  or  permanently  disabled,  and  for  the  minor  children, 

in  such  manner  and  at  such  cost,  either  by  aggregate  compensation  in  damages 

to  each,  or  by  a  monthly,  quarterly,  or  annual  allowance,  to  be  determined  by 

the  court. 

This  section  is  baaed  on  Stats.  1855,  p.  152.  duel  or  sends  a  challenge  to  fight  a  duel,  from 

Article  23,  section  2,  of  our  state  constitution,  holdiu'?  any  office  of  profit  or  trust:  See  also 

prohibits  any  one  who  fights,  or  acts  as  second,  Pen.  Code,  sees.  225,  232, 
or  kHowingly  aids  or  assists  one  who  fights  a 

3348.  Same. 

Sec.  3348.  If  any  person  slays  or  permanently  disables  another  person  in  a 
duel  in  this  state,  the  slayer  is  liable  for  and  must  pay  all  debts  of  the  person 
slain  or  permanently  disabled. 

AKTICLE  IV. 

GENERAL    PROVISIONS. 

3353.  Value,  how  estimated  in  favor  of  seller. 

Sec.  3353.  In  estimating  damages,  the  value  of  property  to  a  seller  thereof 
is  deemed  to  be  the  price  which  he  could  have  obtained  therefore  in  the  market 
nearest  to  the  place  at  which  it  should  have  been  accepted  by  the  buyer,  and  at 
such  time  after  the  breach  of  the  contract  as  would  have  sufficed,  with  reason- 
able diligence,  for  the  seller  to  effect  a  resale. 

3354.  Value,  how  estimated  in  favor  of  buyer. 

Sec.  3354.  In  estimating  damages,  except  as  provided  by  sections  thirty- 
three  hundred  and  fifty-five  and  thirty-three  hundred  and  fifty-six,  the  value  of 
property  to  a  buyer  or  owner  thereof,  deprived  of  its^  possession,  is  deemed  to 
be  the  price  at  which  he  might  have  bought  an  equivalent  tJiing  in  the  market 
nearest  to  the  place  where  the  property  ought  to  have  been  put  into  hiti  p<isses» 

586 


Title  II,  Chap.  II.]  MEASURE  OP  DAMAGES.  §§  3355-33G0 

sioD,  and  at  such  time  after  the  breach  of  duty  upon  which  his  right  to  damages 
is  founded  as  would  sufdce,  wiLh  reasonable  diligence,  for  him  to  make  such  a 
purchase. 

3355.    Property  of  peculiar  value. 

Sec.  3;>55.  "Where  certain  property  has  a  peculiar  value  to  a  person  recover- 
ing damages  for  a  deprivation  thereof,  or  injury  thereto,  that  may  be  deemed  to: 
be  its  value  against  one  who  had  notice  thereof  before  incun-ing  a  liability  to 
damages  in  respect  thereof,  or  against  a  willful  wrong-doer. 

8356.    Value  of  thing  in  action. 

Sec.  3^3G.  For  the  purpose  of  estimating  damages,  the  value  of  an  instru- 
ment in  writing  is  presumed  to  be  equal  to  that  of  the  pi'operty  to  which  ib 
entitles  its  owner.  [Amendment,  appruccd  March  30,  1874j  Ammidments  1873-4, 
2CG;  took  effect  Juhj  1,  1874.] 

Value  of  thins  iu  action. — Where  a  check  "Where  a  mortgage  debt  has  lieen  lost  by  neg- 
hatl  been  list,  ami  paid  by  a  banker  upon  a  ligenceof  the  notary  in  taking;  and  certifying  an 
forged  indorsement,  it  was  held  that  upon  a  acknowledgment  of  the  mortga.^c,  the  measure 
suit  for  the  same,  after  a  refusal  by  tlie  banker  of  damages  is  the  amount  <if  ttij  debt  and  inter- 
to  deliver  the  ciieck  to  the  owner,  in  the  absence  est  to  be  secured  by  the  mortgage:  Jo'iart;/  v. 
of  rebutling  evidence,  the  measure  of  damages  Fiiifp;/,  lOCal. '239.  The  defendant  is  lit  lil)erty 
vas  the  full  value  of  the  amount  for  which  it  to  reduce  the  damages  ))y  jiroof  of  jiaymcnt,  or 
was  (hawu:  Survey  v.  IVtlls,  Fanjo  d:  Co.,  b  any  fact  tending  to  invali  late  tlie  security: 
Cal.   125.  Zeijler  v.   Wells,  Furyo  d-  Co.,  23  Id.  179. 

3357.    Damages  allowed  in  this  chapter,  exclusive  of  others. 

Sec.  3357.  The  damages  prescribed  by  this  chapter  are  exclusive  of  exem- 
plary damages  and  interest,  except  where  those  are  expressly  mentioned. 

Exemplary  damages:  See  sec  3294.  Interest:  See  sees.  32S7-3200,  ante, 

3353.    Limitation  of  damages. 

Sec  3358.  Notwithstanding  the  provisions  of  this  chapter,  no  person  can 
recover  a  greater  amount  in  damages  for  the  breach  of  an  obligation  than  he 
could  have  gained  by  the  full  performance  thereof  on  both  sides,  except  in  the 
cases  specified  in  the  articles  on  exemplary  damages  and  penal  damages,  and  in 
sections  thirty-three  hundred  and  nineteen,  thirty-three  hundred  and  thirty- 
nine,  and  thirty-three  hundred  and  forty. 

Exemplary  damages:  Sec.  3294.  Penal  damages-  Sees.  3344-3348. 

3359.  Damages  to  be  reasonable. 

Sec  3359.  Damages  must,  in  all  cases,  be  reasonable,  and  where  an  obliga- 
tion of  any  kind  appears  to  create  a  right  to  unconscionable  and  grossly 
opi^ressive  damages,  contrary  to  substantial  justice,  no  more  than  reasonable 
damages  can  be  recovered. 

Liquidated  damages  and  penalty:  See  sees.  1070,  1G71,  ante. 

3360.  Nominal  damages. 

Sec.  33G0.  When  a  breach  of  duty  has  caused  no  appreciable  detriment  to 
the  party  effected,  he  may  yet  recover  nominal  damages. 

Nominal  damages.— In  actions  for  a  breach  tion.  the  plaintiff  failing  to  prove  any  express 

of  a  contract,  noniiiia!  damages  are  presume  1  to  daiiage,   yet   claimed   that   it   was  a   case   for 

follow,  as  a  conclusion  of    law,  from  proof  of  nomiiial  damage;  but  tliu  court   thougiit  that, 

tlie    breach:     Bro'CNi-r    v.    Dans,    1.")   Cab    11;  under    iho  circumstances,   tiicy  wore  justified 

also   from   a  trespass: -yl^wooc/  v.  Fricott,   17  in  invoking    the   rule,    L'e   luhiimU  iion  curat 

IJ.  4:}.  I,x.     And  sec  Tnndway  v.  Jai!ie<,  57  Id.  137, 

in  Bnsfamente  v.   S/rwnrt,  55   Cal.    115.   an  whrrc  a  nonsuit  was  i  nproMcrly  granted,  the 

action  upon  an  injunction  bond  after  dissoln-  plaintilF  beinj  entitled  to  nominal  damages.  _ 

587 


§§  33G6,  3307 


RELIEF. 


Piv.  IV,  Part  I, 


TITLE   III 

SPECIFIC  AND  PEEVENTIVE  EELIEF. 

CnATTEK  I.     General  Principles , 33GG 

II.     Specific  Helief 3375 

III.     Preventive  Eeijcef 3-120 

CHAPTER  I. 
GENERAL  TRINCIPLES. 

€366.    Spccifm  relief,  etc. ,  when  allowed. 

Sec.  33CG.     Specific  or  preventive  relief  may  be  given  in  the  cases  specified  in 
this  t'l'.le,  and  in  no  otliers. 

Possession  of  real  property:  Sees.  337o  et 


Possession  cf  personal  property:  Sees, 
3379  et  scfi. 

Specifio  performance  of  obligations: 
Sees.  33S4  et  jseq. 


Revision  of  contracts-  Sees.  3309  et  seq. 
Rescission  of  contracts:  Sees.  340Get  seq. 
Cancellation  of  iustriunents:  Sees.  3412 
et  sccj. 
Injunctiona:  See  sees.  3420  et  seq. 


3367.    Specific  relief,  how  given. 

Sec.  33G7.     Specific  relief  is  given: 

1.  By  taking  possession  of  a  thing,  and  delivering  it  to  a  claimant; 

2.  By  compelling  a  party  himself  to  do  that  which  ought  to  be  done;  or, 

3.  B}'  declaring  and  determining  the  rights  of  parties,  othenvise  than  by  an 
aw^ard  of  damages. 


See  sees.  31575 et  seq.,  for  classification  of  the 
instances  in  wtiic'li  specific  relief  is  givi'U. 

Specifio  relief. — Tiie  following  is  the  note 
of  the  code  coiiimissioners: 

Subd.  1.  Delivering  possession  of  the 
thing  iw33lf. — This  includes  the  ordinary  reme- 
dies in  the  conunon-law  actions  of  ejcctmi-nt 
and  replevin,  or  as  they  may  be  called  under 
the  CO  le,  actions  for  land,  and  actions  for 
chattels. 

Subd.  2.  Compelling  performance  of 
■what  ought  to  be  done. — This  includes  t!ie 
specific  pcrfoiMiiance  of  contracts,  the  delivery 
of  things  wrongfully  detained,  the  surrender  of 
instruments  to  I  e  canceled,  etc. 

Subd.  3.  Determining  rights  other  than 
by  awarding  damages. — This  includes  all 
cases  in  m  liith  a  right  is  determined,  without 
ulterior  nieasni-cs.  Thus  a  contract  may  be 
declared  voi  1,  although  the  instrnment  con- 
taining it  is  lost;  a  judgment  may  be  annulled 
for  fraud;  the  occupant  of  land  may  be  deelare<l 
to  have  a  good  title  as  against  a  claimant  who 
does  not  himself  sue,  etc.:  See  note  to  sees. 
33S0,  an<l  note,  rnd  33S4,  jioxt,  on  speciiic  jier- 
formance;  and  titles  10,  chapters  1-6,  inclusive, 
of  part  '2  of  V.'.c  Code  of  Civil  Procedure:  also 
Id.,  jiart  3,  "Of  Special  Proceedings  nf  a  Civil 
Nature."  As  particularly  in  point,  section  (JOT 
(sec.  200).  Code  Civ.  Proe.  Cal.,cnd)odying  what 
lias  l)een  known  as  the  specific-contract  act, 
as  also  otlier  similar  provisions,  is  referred  to. 

Coiu^triirtloit  of  "ct. — Constitutional:  Ocd- 
tana  \f.  Lcic!.-<,  '20  Cal.  W.  Applicable  to  con- 
tract ma'le  liefore  as  well  as  after  its  passage: 
Otia  V.  llnzrltiiK',  1~  Id.  80.  Simply  provides 
a  remedy  ff>r  enforcing  legal  contracts:  Lane  v. 
Gluckavjf,  28  Id.  288. 


What  is  not  fjohl-roin  confrart:  Lnmpirifj  ii 
Co.  V.  Hyatt,  27  Cal.  99.  Special  deposit  on 
which  by  subsequent  contract  interest  is  agreed 
to  be  jiaid  and  received  loses  its  character  of 
special  deposit:  Howard  v.  Uoltcn,  33  Id.  399. 
One  partner  may  bind  firm  in  specific  contract: 
Miyrr  V.  Kohn,  29  Id.  278.  Accounts  with 
mcnior.induni  pa3'able  in  gold  coin,  signed  by 
defendant,  is  evidence  of  specific  contract: 
Car II  v.  P.  A  G.  Petroleum  Co.,  33  1.1.  094. 
So  also  is  a  promise  on  accounting:  Doit<je  v. 
Mar'jioxd  Co.,  Oct.  Term,  1SG7,  Sup.  Ct.  Cal. 
(N.  U.);  W-mlt  v.  T^o-sw,  33  Cal.  CZO;  Pratt  v. 
aicarus,  31  Id.  78;  Jlemir;/  v.  Vafi/i-z,  32  Id. 
209:  Gay  v.  Jlam'dton,  33  LI.  GSO;  compare 
Reese  v.  .Sleann,  29  Id.  273,  and  Ponrke  v.  ]\[c- 
Laiujhlhi,  38  Id.  196.  Judgment,  specific: 
Ciir/>eiitier  v.  Atherton,  2")  Id.  504;  consult 
Curiae  v.  Abiidie,  2.")  Id.  ,W2.  Section  GG7 
(.sec.  200).  -Code  Civil  Procedure,  to  be  strictly 
construed:  llathaicny  v.  JJrad",  2(5  Id.  581; 
L'i'cd  V.  E'dredije,  27  I<1.  340:  Jlardiiuj  v.  ('ow- 
i)i'j,  28  Id.  2)2,  holds  that  clerk  may  enter  judg- 
ment by  default  for  speciiic  relielf.  Tiiis  re- 
lief granted  on  the  princij  le  "that  ho  who 
seeks  equity  must  do  c(juitv:"  ('oirinj  v. 
Po'/cr.'i.  34  Id.  G48;  Spevrer  el  al.  v.  Pr'ind'e,  23 
Id.  27('>:  Carjientier  \.  Small,  Apr.  Term,  18'jS, 
.35  Id.  34G;  People  v.  S'.  Aimrlca,  31  Id.  076; 
IJiiriittt  V.  Steams,  33  Id.  408;  compare  Pox  v. 
H/iiior,  32  Id.  Ill;  Meudoeiiido  v.  J/orr/.s,  Id. 
145;  compare  j\Iore  v.  l)e  Valle,  28  Id.  170; 
Pii:h-rton  v.  Woodward,  S3  Id.  .'J57. 

'J'hat  n-ldeh  is  known  a-t  the  Kjurific-roidract 
ait  in  tliis  state  ^embodied  in  section  007  [sec. 
200],  Code  C'w.  Proc.  Cal.),  lias  given  rise  to  so 
many  actions  and  decisions  of  our  snjireme 
court  ou  the  subject  of  epecifio  relief,  wherein 

5SS 


Title  III.  Cuap.  II. ]  SPECIFIC  RELIEF.  §§  3368-3375, 

the  wliole  question  is  discussed,  that  it  is  iin-  tious,"  "Discharge  of  Persons  Imprisoned  on 

necessary  to  rcftr  to  other  authorities:  See  sees.  Civil  Process,"  '•Foicihle  Entry  and  Detainer," 

10S3-iU'J7,  writ  of  mandate,  Coi!e   Civ.   Proc.  "  Proceedings   Supplementary  to  Execution," 

Cal.;  see  also  titles  "Lieu,"  "Contesting  EiCC-  etc.,  Code  Civ.  Proc,  Cal. 

33G8.   Preveiitive  relief,  how  given. 

Sec.  33GS.  Preveutive  relief  is  given  by  prohibiting  a  party  from  doing  that 
"wLicb  ougLt  not  to  be  done. 

Iiijunotioa:     See   sees.  525-5.'>3,  Code  Civ.  citing   that  section,  that  "the  Code  of  Civil 

Pri'C.  Procedure  provides  other  remedies,"  and  refers 

Prohibition:  See  sees.  1102-11 05,  Code  Civ.  to  writs  of  prohibition,  certiorari,  and  proceed- 

Proc.  ings  fi.>r  co'.iteinpt. 

Preventive  relief  generally:  See  sec.  .3420,  Certiorari:  See  sec.  1072,  Code  Civ.  Proc. 

eisei[.,  J lo-t.     \Vhilo  sec.  3420  says  t'.iat  "[ire-  Contempt:  See  sees.  1209-1222,  Code  Civ, 

ventive  relief  is  granted  by  injunction,    pro-  Proc. 
visional  or  linal,"  the  code  comuiissioners-say, 

8369.    Not  to  enforce  penalty,  etc. 

Sec.  33G9.  Neither  specific  nor  pi'eveutive  relief  can  be  granted  to  enforce  a 
penal  law,  except  in  a  case  of  nuisance,  nor  to  enforce  a  penalty  or  forfeiture  in 
any  case, 

ciiAPTEii  n. 

SPECIFIC  RELIEF. 

Aeticle  T.     Possesstojt  of  Real  Property 3375 

II.     Possession  of  Personal  Property 3379 

III.  Specific  Performance  of  Obligations 3.3S4 

IV.  Revision  of  Contuacts 3399 

V.     Recission  of  Contracts 340G 

VL    Cancellation  of  Instrdiient.s , 3412 

ATtTICLE  i. 

POSSESSION   OF   REAL  PEOPEBTY. 

3373.   Judfjment  for  po^sess^ioa  or  title. 

Sec.  337.J.  A  person  entitled  to  specific  real  property,  by  reason  either  of  a 
perfected  title,  or  of  a  claim  to  title  which  ought  to  be  perfected,  ma^'  recover 
the  same  in  the  manner  prescribed  by  the  Code  of  Civil  Procedure,  either  by  a 
judgment  for  its  possession,  to  be  executed  by  the  sheriff,  or  by  a  judgment 
requiring  the  other  party  to  perfect  the  title,  and  to  deliver  jjossession  of  the 
property. 

Acticns  concerning  real  estate:  See  sees.  There  is    thertifore  no  necessity  for  making 

73r>ttKt(i..  Codu  civ.  L'roc.  any  otlier  tiian  the  occujiant  a  defendant,  to 

V/riia  of  assistance. — A  defendant  cannot  bind  all  persons  in  privity  by  a  recovery: 
after  judgment,  by  transferring  possession  to  Sfiwp^ojt  v.  C/j/cyer,  22  Cal.  204-207;  ilansonw. 
another,  prevent  the  execution  of  the  writ.  J  rw.s^-o;/;/,  22111.442.  Persons  who  take  posses- 
"Whcro  a  writ  of  restitution  has  been  awarded  sion  after  iholiling  of  a  lis  jieinleiis,  or  with  no- 
iu  siic'.i  a  case,  and  the  sheriiT  refuses  to  exe-  ticeof  the  pendency  of  the  action,  can  be  dispos- 
cute  the  same,  on  tlie  ground  that  the  pro^ierty  sesscd  l)y  the  execution:  Foijally  v.  S^icirl^x,  22 
is  in  t^ic  possession  of  certain  persons  liot  par-  Cal.  I4S;  and  sec  sec.  747,  post.  A  [)Ci'son  re- 
ties  to  the  suit,  tiie  court  will  award  a  per-  moved  from  possession  of  real  estate  under  a 
emptory  manlainu^  against  the  slicrilf  to  writ  of  restitution,  who  applies  in  a  summary 
compel  him  to  execute  the  writ:  Frvmont  v.  manner  to  be  reinstated,  must  make  out  a 
Criiqicn,  10  Cal.  211;  Slate  v.  (Jilbert,  2  B;iy,  clear  case,  free  from  ambiguity:  Caljornia  Q. 
3J5.  J\I.  Co.  V.  h'<diii;itou,  oOCixl.  \Qd.     Awritofres- 

When  a  recovery  is  had  against   the  occn-  titntion  in  ejectment,  issued  after  the  deatli  of 

pant,   the  judgment  binds  all   persons  under  the  judgment  plaintiff,  in  his  name,  is  errone- 

whom  he  occuijies,  together  with  all  (lersdus  in  ous,  a^  it  should  be  in  the  name  of  his  execu- 

firivity  of  estate  or   possession  witli  himself,  tor  or  administrator;  but  if  in  point  of  fact  it 

*Vhen  a  recovery  is  luid  against  a  tenant,  the  h  issued  at  the  instance  of  the  latter,  defend- 

landlord  is  bound  by  it.     So  a  recovery  against  ants  wdl  not  be  restored  to  possession:  Frank' 

a  tci'ant  in  common  who  holds  for  himself  and  Iin  v.  Mcrlla,  Id.  2S9. 

uniler  tiio  other  tenants  in  common  U  bindi:ig  A  writ  of  assistance  is  the  appropriate  r<  m- 

upon  all   his   co-tenants,  aa  well  as   hiinseif.  edy  to  place  the  purchaser  of  mortgaged  prtm* 

689 


§3375 


RELIEF. 


[Div.  IV,  Part  I, 


ises,  under  a  decrreof  foreclosure,  in  possession  judgment  for  plaintifT:  Mayne  v.  Jones,  34  Id. 

after  hu  lias  ul)taiiu d  the  siierifiCa  deed.     This  483.     But  where,   Ijel'ore    suit,  defendant    has 

is  so  as  a^'aiust  the  defendants  in  the  suit,  who  soUl  the  jjropcrty,  it  cannot  be  taken  from  the 

are  bound  Ijy  the  decree,  and  wlio  refuse  to  sur-  ]>urchaser  under   an  execution    issued    on  the 

render  possession  upon  the  order  of  the  court  to  judgment:    Peterie    v.     Uinjby.    2i    Iil.    419. 

that  edcct.     Tiie  [ower  of  tlie  court  rests  uj)on  Prima  facie,  all  who  come  into  possession  after 


the  iiriiicijile  ti)at  v\here  the  court  possesses  ju- 
risdiction to  make  a  /lecree  it  possesses  tlie 
2")o\ver  to  enforce  its  execution:  Alont<joruerij  v. 
Tutf,  11  Cal.  101. 

Prima  facie  the  plaintiff,  after  the  purchase 
of  tiie  mort;,'agcd  premises  and  sheriff's  deed, 
is  entitled  to  iiis  wiit  of  assistance  as  against 
the  mortgagor,  and  those  entering  under  him, 


action  brought  must  go  out,  for  the  presump- 
tion is  that  they  came  in  under  the  defendant; 
but  this  is  rebutted  if  some  [erson  other  than 
the  defendant  is  in  }  esscssion,  iinder  a  title 
adverse  to  his,  for  the  right  to  tiie  possession 
flowing  from  such  a  title  has  not  been  deter- 
mined by  the  judgment.  Ko  one  who  is  not 
party  to  the  action,  or  jrivy  to  him,  can  be 


after  the  decree,  if  they  refuse  to  surrender  pos-     dispossessed:    Loiiff    v.    Nevdlf,    2i)    Id.    136; 


Jones  V,  Chiles,  2  Dana,  'lo'l;  Leroy  v.  llo'jers, 
SO  Cal.  229;  Rogers  v.  Parish,  35  Id.  127; 
Mayo  V.  Sprout,  4.5  Id.  101. 

If  neither  the  tenant  nor  his  landlord  is  a 
party,  and  tlie  landlord  was  in  possession  when 
the    suit   Mas    commenced,  but   subsequently 


session.  Where,  after  the  writ  was  ordered,  the 
mortga^,'or  and  liis  wife  moved  to  set  it  aside  on 
the  gi'ound  that  they  bail,  iiefore  the  mortgage, 
resiiled  on  t!ie  premises  al  a  homestead,  etc., 
tlie  court  beldW  refused  to  set  aside  the  order, 
and  the  supreme  court  said  it  was  no  answer  to 

the  legal  etlect  of  the  facts  to  say  that  these  leased  to  tlie  tenant,  the  tenant  cannot  right- 
parties  li;id  moved  on  and  occupied  the  prem-  fully  be  removed:  W'atsoii  v.  Donliufj,  2G  CaL 
ises  as  a  homestead;  they  must  show  their  125;  Calderjcood  v.  Pyser,  lU  Id.  3I].3. 
right.  Tlie  plaintilf  was  entitled  to  this  writ.  If  defendant,  pending  an  action  against  liim 
whether  these  facts  were  true  or  not,  as  the  to  recover  possession  of  land,  colludes  with  an- 
preinises  were  mortgaged  for  the  purchase  other  person  to  obtain  judgment  against  him 
money;  and  that  tliere  was  no  danger  in  the  for  possession,  and  to  be  pkccd  in  jjossession, 
i:)roces.<,  for  if  improperly  issued  or  executed  tlie     such   other  person  must  go  out  under  a  writ 


court  couhl,  on  summary  motion,  set  aside  the 
writ  or  the  service,  and  I'estore  the  possession: 
Skinner  v.  L'eaKy,  10  Cal.  157.  To  entitle  a 
purchaser  at  a  foreclosure  sale  to  a  writ  of  as- 
sistance, it  is  not  essential  that  the  decree  of 
foreclosure  direct  delivery  of  ]iossession  to  the 
purchaser:  Ilor/i  v.  Volcano  IVuter  Co.,  18  Id. 


ainst  the  defendant:  Weiherbee  v.  Dunn,  38 
Cal.  147. 

When  a  sheriff  goes  to  execute  a  writ  of 
possession,  issued  on  a  judgment  in  an  action 
to  i-ecover  land,  if  he  finds  jiartics  in  posses- 
sion, other  than  those  named  in  the  comjdaint, 
who  claim  that  they  are  riglitfully  in  posses- 


141.     But  a  writ  of  assistance  can  only  issue  sion,  not  in  privity  with  tlie  <lefend:int,  and 

against  the  defendants  in  the  suit,  and  the  par-  the  eircuinstances  are  such  that  a  reasonable 

ties  holding  under  them,  who  are  bound  by  the  doubt  exists  whether  the  sherilf  has  a  right  to 

decree:  JJurlou  v.  Lies,  21  Id.  92.  turn  them  out,  the  sheriff  may  demand  indem- 

AU   that  is  rei[uisite  to  obtain  the  writ  as  nity;   and,  unless   it  is  given,  may   reiuse  to 

against  the  parties  and  those  claiming  under  execute  the  writ;  and  this  even  if  the  premises 

them  after  the  commencement  of  the  action  is  are  specifically  described  in  the  writ:  Long  v. 

to  furnisli  to  the  court  proper  evidence  of  the  Neville,  30  Cal.  455. 


presentation  of  the  deed  to  them,  and  a  demand 
of  the  i)ossession,  and  their  refusal  to  surrender 
it:  JllO'it'jomery  y.  Jllddlemiss,  21  Cal.  100,  107. 
A  person  who,  pending  an  action  for  the  fore- 
closure of  a  mortgage,  and  with  notice  of  the 
jiendency  purchases  trom  one  of  the  defendants 


If  the  plaintiff  obtains  judgment  upon  an 
action  of  forcible  entry  and  detainer,  but  does 
not  obtain  possession  of  the  property,  and  a 
writ  of  restitution  is  not  issued,  and  the  judg- 
ment is  afterwards  reversed,  and  the  action  dis- 
missed, and  during  the  pendency  of  the  action 


therein  a  portion  of  the  mortgaged  premises,  third  jjarties  obtain  possession  of  the  property 

occupies  the  same   position  as   his  grantor  in  by  collusion  with  a  servant  of  the  delendant, 

reference  to  the  issuance  of  a  writ  of  assistance  tlie  defendant  is  not  entitled  to  a  writ  to  be 

in  favor  of  the  purchaser  under  decree:  Mont-  restored   to  possession  as  ag:iinEt  those  third 

gomery  V.  Dyers,    Id.   107.     It  was  held  that  parties:  Z?ou-ersv.  67iero/>efi>o6,40  Cal.  279.    As 

a  writ  of  assistance  would  not  be  issued  against  to  the  description  of  the  land  in  tlie  writ,  see 

a  purchaser  of  the    mortgaged  premises  who  sec.  455. 

bought  during  the  pendency  of  a  suit  to  fore-         If  the  decree  in  a  foreclosure  suit  directs  the 

close,  and  V.  ho  was  not  a  party  to  that  suit  and  sale  of  all  the  mortgaged  ])reniise3,  and  fore- 

without  actual  or  constructive  notice  of  its  jiend-  closes  and  bars  the  equity  of  redemption  of  all 

ency:  Harlan  v.  Rirkerhy,  24  Id.  501;  see  Code  tlie  defendants,  and  directs  that  the  purcliaser 

Civ.  Proc,  sec.  720,  and  notes.  at  the  sheriff's  sale  be  let  into  possession,  the 

If  the  court,  in  an  action  to  foreclose  a  mort-  person  who  receives  the  sherilT's  deed  after  a 

gage,  does  not  acquire  jurisdiction  of  the  person  sale    is   entitled    to   a  writ   of    assistance    as 

owning  the  land  at  the  time  of  the  foreclosure,  against   all  the   defendants  wiio  Mere   served 

a  writ  of  assistance  against  the  owner  or  his  M'ith  process,  or  wlio  appeared  in  the  action, 

grantees   will  l)e  refused:   Sleinhach  v.  Lee^e,  The  above  rule  prevails  as  against  a  defendant 

27  Id.  295.     A  party  and  lier  tenants  coming  who   is    not  mentioned  in  the  sherifl"s   deed: 

into  possession  of  lands,  after  action  bronglit  Frisfne  v.  Fogariy,  .*?4  Cal.  II. 
to  recover  possession  under  a  prior  unreconled         ^V■here  a  sheriff  received    a  vvrit  of   assist- 

deed  from  tM'o  of  the  defendants,  to  an  infant  ance,  and  went  M-ith  ])Iaiiitiif  to  the  premises 

■whose  guardian  M-as   in  possession,  of  Mhich  for  the  purpose  of  putting  hiui  in  possession, 

deed  plaintiff  had  no  notice  when  the  action  but  in  opposition  to  pliintiff's  M'ishes  declined 

was   commenced,  were    held    properly  dispos-  to  take  any  action  in  the  matter,  and  on  a  sub- 

eessed  under  a  writ  of  restitution  issued  on  a  secpient  day  executv.d  the  writ,  lh(i  parties  in 

590 


Title  III,  Chap.  II.] 


SPECIFIC  EELIEF. 


153373,3380 


possession,  being  the  parties  against  whom  the 
writ  ran,  having  in  the  mean  time  destroj'ccl  a 
number  of  vahmble  fiiturcs,  and  by  their  will- 
ful and  ma.iciiiaa  acts  otherwise  injured  the 
premises,  it  was  held  tliat  the  sheriff  w.-s  lialjle 
for  all  the  damage,  however  reniote:  Chapman 
V.  Thoriihur<jh,  J 7  Cal.  87. 

It  is  the  duty  of  the  sheriff,  in  the  execution 
of  a  writ  of  assistance,  to  place  tiie  purchaser 
on  foreclosure  of  mortgage  of  an  "testate  in  com- 
mon in  t!ie  possession  of  cveiy  part  and  parcel 
of  the  land,  jointly  with  the  other  tenants  in 
common. 

In  the  execution  of  the  wi-it,  the  slieriff  can- 
not remove  any  of  the  tenants  in  common  who 
hold  under  a  title  derived  from  a  source  inde- 
pendent of  him  through  whom  the  purchaser 
claims. 

If  the  return  of  the  first  writ  does  not  clearly 
declarci  that  it  has  been  fully  executed,  and  it 
is  made  to  appear  by  a(hdavits  that  it  has  not 
been,  it  is  competent  for  the  court  to  issue  an- 
other writ:  TcvU  v.  Hicks,  38  Cal.  2:54.  A  per- 
son in  possession  adverse  to  the  plaintiff  cannot 
be  cji'cted  under  a  judgment  colhisively  ob- 
tained by  i)laintiff  against  a  person  who  goes 
into  temporary  possession  for  the  purpose:  H. 
B.  L.  A.  V.  Ch,l-<ty,  41  Id.  502. 

On  a  motion  for  a  writ  of  assistance,  ques- 
tions of  e(piitab!e  cognizance  between  t!ie  par- 
ties in  possession  of  the  land,  who  were  not 
parties  to  the  foreclosure  suit,  and  the  I'laintiff, 
as  to  their  respective  rights  to  the  land  5,  can- 
not bo  htigaied:  JJendemon  v.  McTiuker,  45 
Cal.  G47. 

A  person  who  forecloses  a  mortgage  given  by 
one  partner  on,  and  obtains  a  sherifi's  deed  for, 
an  undivided  interest  in  partnership  property, 
without  making  the  other  partner  a  party,  is 
not  entitled  to  a  writ  of  assistance  as  against  a 
receiver  appointed  at  the  instance  of  such  other 


partner  in  aw  aclion  for  dissolution,  etc. :  Ati- 
tenreith  v.  IJessenaurr,  4'i  Cal.  S.")!!.  It  seems- 
that  the  grantee  of  tlie  holder  of  the  sheriff's, 
deed  is  not  a  person  ir»  w  hose  fp.vor  a  writ  of 
assistance  should  be  awaj'ded.  Notice  of  the 
application  for  a  writ  of  assistance  should  be 
first  given  to  the  defendant,  and  also  to  the 
tene-tenant  if  there  be  one,  whose  int<Test 
would  be  distuibed  by  the  execution  of  the 
writ  applied  fur:  San  Jo'fi  v.  Fulton^  4.')  Id.  31S. 

Writ  of  restitution:  S-ee  Code  Civ.  Proc, 
sec.  937. 

That  section  applies  only  to  those  cases 
where  the  judgment  operates  upon  specific 
property  in  sucli  a  manner  that  its  title  is  not 
changeil:  Farmer  v.  Uo<jfrs,  10  Cal.  3.'].).  In 
giving  power  to  the  supreme  court,  it  does  not 
exclude  the  courts  of  lirst  instance  from  award- 
ing restitution;  an|  the  restitution  maj'  be 
awarded  on  niotion,  WlTore  the  purcliaser  of 
property  is  the  plaintiff,  ic  must  be  restored  to 
defendant  if  the  judgment  under  which  it  was 
sohl  is  revei-sed.  Tliis  is  oth"rwise  as  to  a 
stranger,  but  only  if  he  is  an  innocent  pur- 
chaser without  notice:  Jifi/no/ds  v.  Harris,  14 
111.  G77;  liairn  v.  lio/nokls,  18  Id.  27o;  Polack 
V.  Srha/i-r,  40  Id.  275;  Pico  v.  Cin/OH,  48  Id.  G3&. 
A  slieriff  has  no  authority,  by  virtue  of  a  writ 
of  restitution,  to  remove  from  the  premises 
described  in  the  writ  persons  wlio  were  not 
parties  to  the  judgment  in  which  the  writ  was 
issued,  and  did  not  enter  undir  defendant  in 
the  judgment  pending  the  suit.  One  who  is 
the  owner  of  land  and  in  possession  of  the 
same  is  not  entitled  to  an  injunction  to  re- 
strain a  sheriff  from  executing  a  writ  of  resti- 
tution, issued  on  a  judgment  renderetl  against 
third  parties,  to  wliich  jiub^ment  t!ie  i)!aintiff 
is  a  stranger:   VV??/.'?  v.   El/i-',  25  Id.  515. 

Si^ssifio  e!if3rcem5iit  of  coutract  to 
convey  realty:  See  sec.  33S4. 


ARTICLE  II. 

POSSESSION    OF   PERSONAL   PROPERTY. 

3379.  Jii/Jgvienf  for  delivenj. 

Sec.  3^70.  A  person  entitled  to  the  immediate  possession  of  specific  personal 
propert}'  may  recover  the  same  in  the  manner  provided  by  the  Code  of  Civil 
Procedure. 

Cla'm  and  delivery:  See  Code  Civ.  Pmc,  sees.  509  et  seq.,  and  notes. 

Eroacb  of  agreement  to  transfer  parsonalty  may  be  compensated  in  damages:  S«e  sec  33S7. 

3380.  Owner  may  recover  specific  properly. 

Sec.  3380.  Any  person  having  the  po.ssession  or  control  of  a  particular 
article  of  personal  property,  of  which  he  is  not  the  owner  may  be  coiupellod 
specifically  to  deliver  it  to  the  person  entitled  to  its  immediate  possession. 
[Amendment,  npproved  March  30, 1874;  Amendments  1873-4,  2GG;  took  ej/'ect  July 
1,  1874.] 


Tlie  orijjinal  section  read  as  follows: 

"  .Si;c.  3  )»;).  Any  person  having  tlie  posses- 
Efion  or  control  of  a  particular  article  of  personal 
property,  of  winch  he  is  not  the  owner,  may  be 
conipellcd  specifically  to  deliver  it  to  tlie  person 
entitled  to  its  immediate  possession  in  either  of 
the  following  cases: 

"  1.  Wlicn  tlie  thing  claimed  is  held  subject 
to  an  express  trust  in  favor  of  the  claimant; 

"  2.  When  pecuniary  compensation  would 
not  afford  adequate  relief  for  the  loss  of  the 
thing  claimed;  or, 


"  3.  When  it  would  be  extremely  difficult 
to  ascertain  tlie  actual  damage  caused  by  its 
loss." 

Breach  of  agreement  to  transfer  person- 
alty: See  sec.  3.)S7- 

"  Til's  section  is  intended  to  provide  for 
the  relief  granted  by  couits  of  equity  in  the 
cases  specified.  The  ordinary  remedy  in  an  ac- 
tion for  chattels  may  be  evaded,  by  any  one 
who  has  sufiicient  means  to  pay  their  value,  by 
the  exercise  of  a  little  ingenuity.  Accordingly, 
courts  of  equity  have  long  intervened  to  com- 


591 


I3S34 


P.ELIEF. 


[Div.  IV,  Paut  r. 


pel  a  -wTong-floer  himself  to  deliver  Ti^^  tlie 
things  detained  I'y  him.  Specific  delivery:— It 
will  he  observed  that  this  remedy  is  not  con- 
fined to  card's  of  wrongful  possession.  It  may 
often  happen  tliat  one  who  holds  a  thing  in 
trust  may  secretly  design  to  make  a  wrongful 
disposition  of  it,  and  that  the  owner  may  have 
an  intinsation  or  suspicion  of  this  design,  hut 
no  legal  e\idence  of  it,  A  demand  before  suit 
might  lead  to  a  sadden  disposition  of  the  thing, 
and  rcsTilt  in  its  total  loss.  Tiie  owner  ought, 
therefore,  to  bo  allowed  to  sue  without  a  prior 
demand,  subject  to  the  discretion  of  the  court 
as  to  costs,  if  it  appears  that  he  has  made  un- 
uecess  uy  litigation:  See  Rnice  v.  Tilnoii,  23  N. 
Y.  104.  But  t'le  section  is  so  restricted  as  not 
to  include  the  case  of  a  thing  agreed  to  be  sold. 
Thing  held  by  express  trust,  and  inadetiuate 
.pecuniary  consideration  :A^The  inadequacy  of 
•compensation  in  damages  is  the  true  test  of  a 
plaintiff's  right  to  this  special  relief:  North  v. 
<i!reaf  Northirn  Railway  Co.,  2  GiiT.  GQ.  Tluis, 
freight-cai's  for  use  upon  a  railway  were  de- 
creed to  be  delivered  up,  on  the  ground  that 
similar  cars  could  not  be  bought  ready  made, 
and  that  compensation  in  damages  would  not 
cover  the  loss  which  would  bo  caused  by  delay: 
Id.  It  is  not,  therefoi'e,  deemed  advisable  to 
attempt  any  enumeration  in  the  text  of  the 
code  of  the  ai  tides  which  may  be  recovered  by 
this  process.  There  would  be  little  danger  of 
injustice  being  done  if  this  remedy  should  be 
more  widely  a[)plied. 

"A  sumuiary  of  the  principal  cases  in  which 
a  specific  delivery  has  been  enforced  may,  how- 
ever, be  useful.  Also  articles  of  peculiar  value 
to  be  returned.  Courts  of  equity  have  com- 
pelled the  delivery  of  old  and  rare  paintings: 
Lowther  v.  I^o^viher,  18  Ves.  95;  of  family 
paintings:  Iliuit  v.  Moultrie,  1  Bosw.  b'?>\,  af- 
firmed in  court  of  appeals;  of  an  ancient  altar- 
piece  in  silver,  with  a  Greek  inscription:  Som- 
erset V.  CooLioii,  ?,  P.  Wms.  389;  of  a  gold  snuff- 
box: Fcll'i  V.  Rred,  3  Ves.  70;  of  heirlooms:  Mac- 
cle-field  V.  Vans,  8  Ves.  &  B.  IS;  PiKfj/  v.  Pii- 
sey,  1  Vern.  '273;  of  family  plate:  Grqfrj/  v. 
Davis,  Gary,  31;  of  jewels:  Saviile  v.  Taukreil, 
1  Ves.  sen.  iOl;  Belt.  Supp.  70;   Youw/v.  Ear- 


rd,  Gary,  .'4;  of  farm  stock:  Nuthrowny.  Tlwm,' 
ton,  10  Ves.  IfjO;  of  Masonic  regalia:  JJoifl  v, 
Lortri,'//7.  G  Id.  773;  of  mortgage  deeds:  Jarkson 
V.  IJutlrr,  2  Atk.  300;  Kvye  v.  Moore,  1  Sim, 
&  St.  61;  of  books  of  account:  L'vuiis  v.  Van 
llnll,  Glarke,  20;  Liwjan  v.  Simpson,  1  Sim.  Sc 
St.  GOO;  and  in  slave  states,  ( f  particular 
slaves:  J/cdlv.  C/a/7.',  12  Smed.  &  LI.  ISO;  Duller 
V.  Hides,  11  Id.  70;  Murphy  v.  Clurl\  1  Id.  22i; 
Dudley  v.  MaHory,  4  Ga.  52;  Sims  v.  Skelton, 
2  Strobh.  K'\.  221;  Ellis  v.  Commander,  1  Id. 
1S8;  Sarter  v.  Gordon,  2  Hill's  Gh.  121;  Lofton 
V.  Espy,  4  Yerg.  84;  10  Id.  31;  Viilli  mis  v. 
llowird,  3  Murph.  74;  Y'^ivkj  v.  Bnr/ou,  1 
McMuU.  E(i.  2.10.  In  Dowlinrj  v.  Detjeiua.i,  2 
Jolins.  &  11.  i)Vi,  the  court  asserted  its  lighfc 
to  order  the  specific  delivery  of  a  new  painti;ig, 
upon  the  a]iplication  of  the  artist  him.self,  but 
the  plaintilf  in  that  case  having  put  a  valuation 
on  the  painting,  this  was  held  to  show  that 
compensation  in  damages  would  be  snilicient 
relief:  See  sec.  3355,  rtH^c.""  Commis.sioncrs'no':e. 

Contracts  for  tli9  sale  of  per.'soiiaijy. — As 
a  general  rule,  eourts  of  equity  do  not  enforce  the 
specific  iierformance  of  contracts  fur  the  £aleof 
personal  property.  "When  such  contracts  ai-e  so 
enforced,  it  is  on  the  ground  of  the  peculiar 
character  of  the  property  itself,  or  bcc;;use  its 
connection  with  the  plaiutifif's  business  ij  such 
that  no  adequate  damages  can  be  given  at  law: 
McLatojMiu  v.  Piatli,  '21  Gal.  451.  TlKTcfore 
it  is  necessary  for  the  plaintiiF  to  set  fortii  Iq 
his  complaint  the  peculiar  features  of  his  case 
which  take  it  out  of  the  general  rule  regarding 
the  specific  enforcement  of  contracts  concern- 
ing personalty:  Senfer  v.  Davis,  38  Id.  450.  A 
contract  for  the  sale  of  cattle  possessing  no 
especial  value  except  as  mercliandisc  will  not  be 
specially  enforced:  McLaugldinv.  Pia'ti,  supra. 
Nor  will  a  contract  of  sale  of  a  newspaper  route: 
Seuter  v.  Davis,  supra. 

Min:n3  stock. — For  application  to  contracts 
concerning  mining  stock  of  the  principle  above 
stated  in  regard  to  the  specific  enforcement  of 
contracts  for  the  sale  of  pei'sonalty,  see  Chater 
V.  Sufjar  11.  Co.,  19  Gal.  219;  Treasurer  v.  Com. 
M.  Co.,  23  Id.  390;  Uardenberyh  v.  Bacon,  33 
Id.  350. 


ARTICLE  III. 

SPECIFIC   PERFORMANCE   OF   OBLIGATIONS. 

3384,    Sppcijic  performance,  when  compi'lle.d. 

Sec.  3384.  Except  as  otherwise  provided  in  this  article,  the  specific  perform- 
ance of  an  obligation  may  be  compelled.  [Amendment,  approved  ^larch  30, 
1874;  Amendment  1873-4,  2GG;  look  effect  Jul;/  1,  1874.] 

The  original  section  added  the  following  "'Obligation' why  used.— The  word  'obli- 
as  speciiications  of  the  instances  in  which  spe-     gation'    is    used,    because     some    oblitiations 


cific  performance  could  be  compelled 

"  1.  When  the  act  to  be  done  is  in  the  per- 
formance wholly  or  partly  of  an  express  trust. 

"  2.  When  the  act  to  be  done  is  such  tluit 
pecuniary  comjiens:;tion  for  its  non-perform- 
ance would  not  atFoi'd  adequate  relief. 

"3.  Wlien  it  would  be  extremely  difficult  to 
ascertain  the  actual  <lamage  caused  by  the  non- 
performance of  t!ie  net  to  be  done;  or, 

**4.  When  it  has  been  expressly  agreed,  in 
■writing,  between  the  parties  to  the  contract, 
that  specific  performance  thereof  may   be  re 


created  by  operation  of  law  may  be  enforced 
in  this  manner.  It  includes  an  award,  which 
may  be  specifically  enforced:  Bourk  v.  Wither, 
4  Johns.  Gh.  405.  The  obligation  must  be  a 
subsisting  one:  Aruoiix  v.  jfomaux,  25  How. 
Pi'.  4C7:"  Gonimissioners'  explanation. 

S  oecific  performance  of  contr.TCt3  gen- 
erally.— The  requisites  for  the  exercise  by 
courts  of  equity  of  this  well-establi.'^hed  Ijrunch 
of  their  jurisdiction  are,  in  substance:  I.  The 
performance  in  specie  must  be  necessary;  2.  It 
must  be  practicalde;  3.  There  must  be  a  valu- 


quired  by  cither  ))aity,  or  that  damages  shall    able  consideration;  4.  The  terms  of  the  contract 
not  be  considered  adequate  relief.'"  must  be  certain;  and,  5.  It  must  be  reciprocal: 

592 


Titus  III,  Chap.  II.} 


SPECIFIC  ilELIEI^. 


3334 


Adams' Eq.,  sees.  77  et  seq.;    Pomeroy's  Eq.,  that  he  mnst  show  that  he  "naeil  due  diii^ncc; 

sec.  140j.    liiadditioii  to  these  requisites,  which  or,  if  not,  that  his  ne<:;ligence  arose  lioiii  sonio 

are  to  a  certain  extent  emboiUed  iu   sections  just  cause,  tr  has  been  acquiesced  in.     It  ij 

S.'iOO,  o391,  ii'fra,  there  are  some  cases  men-  not  necessary  for  the  party  i-esisting  perforni- 

tioued  in  tlioso  sections  wliere  specilic  enforce-  ance  to  show  any  particular  injury;  it  is  sulFi- 

ment  of  a  contract  cannot  take  place.  cicnt  if   he  has  not   ac(iuiesced  in    tlie   re^li- 

Tlie  speciiio  performance  of  a  contract  is  not  geiice  of  tlie  other."     As  to  readiness  and  will- 

a  matter  of  course;  it  rests  in  the  sound  dis-  ingness  to  perform,  see  also  Owen  v.  Frhik,  '24 

cretion  of  the  court  upon  a  view  of  all  the  cir-  Id.  171.     It  was  tliere  determined  that  a  de- 

cumstances,  and  before  the  court  will  act  it  must  cree  enforcing  performance  will  not  be  reverse! 

be  Hatished  that  the  contract  is  reasonable  and  because  the  court  fails  to  laid  that  the  jiarty 


eijual  iu  its  opt:raLion:  t'oojxr  v.  Pena,  21  i'A. 
408;  A'jard  v.  I'aleiicid,  'Si)  Id.  458;  JJriu/c  v. 
Tucki-r,  4 J  Id.  347.  As  stated  above  by  Mr. 
Adams,  the  agreement  must  be  one  whicli  in  all 
its  features  appeals  to  the  judicial  discretion  of 
the  court  aa  being  fit  to  be  executed  in  specie 


plaintiff  was  ready  and  desirous  to  pciform, 
provided  that  a  rea<line.ss  and  willingness  ap- 
pe.ir  from  the  facts  that  are  found.  lleiuUnes-s 
and  willingness  must  be  alleged  by  the  plaiutilT: 
I'rixcn  V.  Castro,  53  Id.  442. 

Where  the  vendor  .seeks  to  compel  pcrforni- 


iis  having  been  obtained  without  any  admi.xture  auce  by  the  vendee,  if  tliere  is  any  tjuesti'in  as 

of  unfairness:  lirack  v.  Tucher,  stij/ra;  Sttirf/is  to  the  plaintiff's  title,  he  must  show  that  he  ia 

V.  Ocdiitdo,  59  Id.  '28.     The  conti'act  must  be  ready  and  can  convey  such  as  the  parties  con-, 

reciprocal,  mutual:  .See  ;jo.s<,  sec.  3386.    Equity  tcmplated  wlien  they  entered  into  their  con-,. 

will  uot  eiifoice  the  specific  execution  in  favor  tract:  i'7e<c/;er  v.  J/oitvr,  5onal.  119.    Andthftt 

of  one  who  could  not  be  compelled  to  perform:  tlie  seller  cannot  have  a  contract  enforced  wh-ett't 


(Jooper  V.  Pena,  »upra. 

E(juity  may,  afier  a  woman's  marriage,  de- 
cree a  specilic  performance  against  her:  Low  v. 
Watklus,  40  Cal.  547.  A  covenant  iu  a  lease 
giving  tlie  icssee  the  privilege  of  buying,  wdl 
be  enforced:  Hall  v.  Center,  Id.  G3.  iSo 
deeds  of  separation  affecting  ju'operty  ri.uht3 


Ills  title  is  i'l  reasonable  doulit,  see  see.  h'.">!)4. 
That  an  unsatisfied  mortgage  on  the  vendor'a 
land  is  good  cause  for  refusing  to  perform,  sco. 
J,'€e.se  V.  Hoeekel,  58  Cal.  '281. 

But  a  conveyance  stipulated  to  be  r.iado- 
when  all  the  installments  of  the  purciiasa-- 
money   are   paid   cannot   l>e  compelled    white.- 


may  be  enforced:  Joyce  v.  Joyce,  5  Id.  04.    See  some  of  the  installments  remain  unpaid,  with- 

instances  of  specific  enforcement  of  contracts  out  cause:    Troy  v.  Clarke,  .'iO^Cal.  119.     Ami; 

between  attorney  ami  client,  where  the  latter  for  further  illustration  of  duty  of  phiintilf  ta. 

ag:-ced  to  convey  part  of  the  laud  iu  contro-  show  performance  of  conditions  precedent  ori' 

versy  in  consideration  of  the  former's  ser\  ices:  his  part,  see  Peudfy  v.  Hart,  3  West  Coast' 

Howard  v.  Tkrockinorlun,  48  Id.  482;  Ballurd  Picr'.  023. 

wCarr,  Id.  74.  Tender  of  deed  and  purchase  monoy. — It. 

Ax  to  che  certainty  of  the  terms  of  the  contract  has  been  held  in  England  th:it  it  is  the  duty  of 
and  freedom  from  ambiguity  necessary  to  war-  the  vendee  to  jirepare  and  present  to  the  vendor- 
rant  this  relief,  see  Morrison  v.  Jiossifjnold,  5  for  his  execution  a  deed  for  the  premises  ia 
Cal.  G4;  A'jard  v.  Vcdencia,  39  Id.  292;  Ferris  question:  Brown  v.  Covi'land,  6  Cal.  508.  In 
V.  Irving,  28  Id.  645;  McLauf/hlin  v.  PicUti,  27  Johnson  v.  Pickett,  5  Id.  21!),  the  court  merely 
Id.  451;  Mint  urn  \ .  Baylix,  'S'.i  Id.  129,  and  a  decided  that  where  the  vendor  refused  to  exe- 
very  excellent  note  to  Altvood  v.  Cobb,  26  Am.  cute  a  deed  the  vendee  need  not  tender  one. 
Dec.  657,  601,  where  the  requisite  certainty  as  But  iu  Morgan  v.  Sirarnx,  40  Id.  4"4,  where 
to  parties,  subject-matter,  time  and  place  of  the  vendee  i)resentcd  to  the  vendor  a  deed 
performance,  consideration,  and  terms  is  con-  which  differed  from  that  called  for  in  the  cou- 
sidered:  .See  also  sec.  3390,  subd.  0.  tract,  the  court  saying  that  the  vendor  not  ob- 

Plaintiff's  good  faith  audreadiiie33  to  per-  jeeting  to  the  deed  at  the  time  could  not  there- 
form:  .See  sec.  3392,  post.  Moreover,  the  party  after  plead  the  irregularity,  went  on  to  decit^iD 
seeking  the  aid  of  equity  to  specificaliy  enforce  a  that  it  was  not  the  duty  of  the  grantee  to  ten- 
contract  must  have  himself  acted  in  good  faith:  <ler  the  deed,  that  it  was  for  the  grantor  to  do 
Goodate  v.  llVs^,  5  Cal.  330;  ('onmd  v.  Lindley,  that,  an<l  that  the  grantee  need  do  no  mora  • 
2  Id.  173;  Oreenv.  CoviUuud,  lOId.  317;  liroicn  tlian  tender  the  purchase  money.     As  to  tha 


V,  Covil'aud,  0  Id.56G;  Hicks  v.  Lordl,  04  Id.  14. 
lie  must  show  that  he  has  complied  with  tlie 
substance  of  the  contract  on  his  part:  J/oeji 
V.  •'Simmons,  1  Id.  1 19;  Goodale  v.  lIVs/,  5  Id. 
339;  Uroini  v.  Covillaud,  supra;  Green  v.  Coril- 
laud,  suprd;  Pearis  v.  CovUlaii  I, did.  017;  //ow- 
ard  V,  Throckmorton,  48  Id.  482.    A  reasonable 


retjui^ites  of  a  tender  of  the  purchase  money, 
sec  Marshall  v.  Cddwell,  41  Cal.  Gil;  L'ng. 
lander  v.  Poger<,  41  Id.  420.  And  for  suffi- 
ciency of  aifegation  of  tender  of  pnrchaso 
money,  see  Hnrsolou  v.  Newton,  63  id.  223; 
Dowd  V.  Clarke,  51  Id.  48. 

Demand  before  suit. — A  demand  for  the 


compliance  is  all  that  is  requin-d:  Hcc  i  ifram     execution  of  tlie  dee  1  before  bringing  suit  ia 


this  note,  "Laches,"  etc.;  Farley  wVanghan, 
11  III.  '227.  There  the  vendor  had  received 
part  of  the  purchase  price,  and  without  malcing 
any  demand  for  the  balance  stood  by  and  saw 
the  vemleo  m-ike  great  improvements  on  the 
land.  The  court  refused  to  hear  the  vendor's 
objection  that  the  vendue  had  not  fully  corn- 


only  material  asaffecting  costs.      \VithoutHUch 
demand  the  action  may  be  maintained,  but  the' 
plaintiff  will  not  be  entitled  to  costs:  Jone->  v. 
Pelalama,  30  Cal.  230. 

SuSoi^nt  signing  of  contract:  Sec  sec. 
.33:}8.  A  veiul  e  may  enforce  the  contr;lc^  for 
the  sale  of  land  against  the  vendor,  although 


plied  with  Ilia  part  of  the  contract:  See  also  he  alone  signed  it:  Vasxanll  v.  Edwards,  43 
Barxolon  v.  Newton,  03  Id.  2215.  In  U'lhcr  v.  Cal.  45S.  And  a  letter  may  be  resorted  to  as 
Marshall,  19  id.  447,  it  was  said  that  the  containing  a  sufhcieiit  memorandum  of  the  con- 
party  insisting  on  specilic  perfiu'mance  must  tract:  Mo-'s  v.  Atkinson,  44  Id.  3.  If  the  pro- 
show  himself  "eager,  prompt,  ready,  an  I  de-  bate  law  allows  only  contracts  rc'^pecting  realty 
eirous  to  perform  the  contract  ou  his    part;"  that  are  iu  writing  to  be  enforced  against  a  de« 

Civ.  Code— 38  593 


%5?M 


nELlEF. 


[Drv.  IV,  Part  I, 


ceiient  3  estate,  one  seeking  such  enforcement 
.  must  allegu  tlie  contract  to  have  been  mado  iu 
■wiiLiii^':  Cori/  V.  JJi/de.  49  Iil.  4u9. 

Speoilio  enforcement  of  verbal  con- 
traots. — The  part  perfonnunce  of  a  verbal  con- 
tract within  the  statute  of  frauds  has  no  clVcct 
at  law  to  take  the  case  out  of  its  proviaious: 
See  the  note  to  Xorlou  v.  Preston,  3J  Am.  Doc. 
129.  Equity,  however,  for  the  reason  that, 
and  in  tlic  case  where  it  vvouIJ  \>^  a  fraud  upon 
the  party  who,  iu  reliance  upon  the  contract, 
has  partly  pcrfoiTned  it,  will  not  permit  the 
other  party  to  refuse  performance  on  liis  part: 
Tohlcr  V.  Fol^om,  1  Cal.  '207;  Forre-^tcr  v. 
Flore^i,  Gl  Id.  -2-1;  Kmle  v.  Nealc-^,  9  Wall.  1. 
And  it  lias  been  stated  that  nothing  will  be 
considered  a  part  jDcrformance  to  take  a  verbal 
contract  for  the  sale  of  land  out  of  the  statute 
of  frauds  which  does  not  place  the  party  in  a 
situation  which  is  a  fraud  >ipou  him,  unless  the 
contract  be  executed:  Anjiidlo  v.  Ediii'jcr,  10 
Cal.  1.30;  and  see  Pomeroy  on  Spec.  Perf.  Cont., 
eec.  101.  It  is,  moreover,  well  settled  that  a 
party  who  claims  a  right  to  a  conveyance  of 
land  under  a  parol  contract,  on  the  ground  of 
part  performance,  must  make  out  by  clear  proof 
the  agreement  aa  alleged,  and  the  acts  of  per- 
-formauce  alleged  and  proved  must  be  une- 
•  quivocal  evidence  of  such  .agreement:  Dliivi  w 
'.Mobertson,  24  Cal.  129;  Forrester  v.  Flore.<<,  C-i 
Md.  24. 

Part  performance  "warTantins  enforce- 
•cient  of  verbal  contracts. — In  pursuance  of 
the  equitable  power  now  universally  exercised 
in  this  country  to  decree  a  specific  performance 
of  a  verbal  contract  for  the  sale  of.  land  which 
had  been  partly  performed,  the  court  in  Ar- 
gudlo  V.  Edinijer,  10  Cal.  150,  declared  that  in 
this  state  part  performance  would  justify  the 
enforcement  of  such  a  contract;  and  this  doc- 
trine is  now  well   recognized:    See  the  cases 

■  hereinafter. 

What  are  acts  of  part  performanos:  See 
.  gener;dly  a  note  to  Christy  v.  Barnhart,  53  Am. 
Dec.  53S. 

Possession. — Possession  alone,  without  pay- 
ment or  other  acts  of  ownership,  is  sulhcient 
part  performance  of  a  verbal  sale  of  land  to 
take  a  case  out  of  the  statute  of  frauds,  and  to 
Bustain  an  action  for  a  specific  execution  of  the 
contract:  See  JilcGanjer  v.  Rood,  47  Cal.  IMS; 
and  Jrfferson  v.  Jefferson,  93  111.  551;  Arnold  v. 
Stephenson,  79  lud.  126;  Lamb  v.  Hinman,  4G 
Mich.  112;  Jamison  v.  Dimock,  95  Pa.  St.  52; 
Seaman  v.  Asche}-man,  51   Wis.  67S;  I'omeroy 

■  on  Spec.  Perf.  Cont.,  sec.  115;  Browne  on  Slat. 
Frauds,  sec.  467. 

But  this  possession,  in  order  to  constitute  a 
part  performance,  has  the  following  rerpusites, 
thus  classed  iu  the  note  to  Chr!s'y  v.  Barnhart, 
63  Am.  Dec.  541,  where  they  are  sujiported  by 
abundant  authority.  These  requisites  are: 
The  possession  must  be:  1.  Notorious;  2.  Ex- 
clusive; 3.  It  must  be  of  the  tract  claimed;  4. 
It  must  appear  to  have  been  delivered  or  taken 
in  pursuance  of  the  contract  alleged;  5.  It 
must  be  continued  and  retained  under  the  al- 
leged agreement.  A  party  entering  upon  land 
under  an  agreement  to  purchase,  disclaiming 
the  title  of  the  vendor,  forfeits  the  benefit  of 
the  agreement,  and  cannot,  on  subsequently 
tendering  the  purchase  money,  claim  a  specific 
performance:  Conrad  v.  Lindey,  2  Cal.  173. 

Possession  must  be  taken  with  consent  of  the 
grantor:  Pomergy'a  Spec,  Perf.  CouL^  sei.  119; 


IToxcA  V.  Jiogers,  32  Tex.  2IS;  Purcell  v.  Miwr, 
4  Wall.  513;  Freeman,  v.  Free/man,  43  J5.Y.  34. 
But  possession  taken  with  the  grantor's  knowl- 
edge,  dud  without  objection,  will  be  presumed 
to  be  with  his  consent:  Purcell  v.  JUiuer,  mipra; 
Gonclier  v.  Martin,  9  Wall,  103. 

Possession  and  part  payment  will  be  suffi- 
cient part  performance:  Kin  1  v,  Meyer,  35  Cal. 
G46;  Clark  v.  Clark,  49  Id.  586;  JMy  v.  Cokn, 
3  West  Coast  Itep.  577.  In  the  first  case  tho 
vemlor  brought  ejectment  against  the  vendee 
in  possession  to  get  the  land,  and  the  defendant 
set  up  the  fact  aud  asked  a  specific  enforcement 
of  the  contract,  and  obtained  it, 

Espenditurea  mad3  oa  improvsmsnts 
upon  the  laud  constituta  a  part  performance. 
Whatever  doubts  may  exist  in  otlier  cases, 
there  is  none  iu  cases  where  possession  has 
been  taken  under  and  in  pursuance  of  the  con- 
tract, and  valuable  improvements  have  been 
made  by  the  vendee:  Manly  v.  Iloidett,  55 
Cal.  94;  McGarqer  v.  Rood,  47  Id.  138;  Hoff- 
man V.  Fett,  39  id.  109;  Day  v.  Cohn,  3  West 
Coast  Rep.  577;  Browne  on  Stat.  Frauds,  sec. 
437;  Pomeroy  on  Spec.  Perf.  Cont.,  sec.  123; 
and  see  note  to  Christy  v.  Barnhart,  53  Am. 
Dec.  541,  542. 

Work  performed  by  one  of  two  pro- 
posed  purchasers. — It  is  verbally  agreed  by 
a  surveyor  aud  the  defendant  that  the  former 
was  to  find  and  survey  swampdands,  and  that 
the  other  should  pay  tlie  lu"st  installment,  pro- 
cure a  certificate  of  purchase,  and  then  deed 
half  to  the  surveyor;  his  services  were  not 
thought  insufficient  to  take  the  case  out  of  the 
statute:  Ediuards  v.  Estcll,  48  Cal.  194. 

Payment  is  not  performance It  is  now 

the  law,  accepted  ^vith  but  very  few  exceptions 
— and  these  based  on  statutory  provisions — 
that  part  payment  of  the  purchase  money  is 
not  sufficient,  as  a  part  performance  of  a  verbal 
contract  to  sell  lands,  to  take  the  case  ont  of 
the  statute  of  frauds:  Waterman  on  Spec.  Perf. 
Cont.,  sees.  288,  269;  Pomeroy  Spec.  Perf. 
Cont.,  sec.  112;  Forrester  v.  Flores,  64  Cal,  24. 

Iiaches  bars  right  to  specilio  perform- 
ance: Henderson  v.  Hicks,  58  Cal.  304;  and 
see  note  to  Smith  v.  Tiiompson,  54  Am.  Dec. 
132.  That  delay  in  paying  money  is  excusable, 
when  the  purchaser  has  entered  into  posses- 
sion, made  valuable  improvements,  and  the 
vendors  acquiesced  in  the  non-payment,  in  the 
first  place,  and  did  not  subsequently  demand 
it,  see  Uarsolou  v.  Newton,  63  Cal.  223;  see 
also  infra,  "  Time  aa  Essence  of  Contracts." 

Inadequacy  of  consideration  not  ground 
for  refusing  relief:  See  note  to  Seymour  v. 
Dclanry,  15  Am.  Dec.  299;  but  see  sec.  3391, 
8ul)d.  1. 

Time  as  essence  of  contracts. — It  is  im- 
possible in  construing  contracts  to  prescribe 
any  general  aud  uniform  rule  by  which  the 
question  whether  the  time  wilhin  which  the 
contract  is  to  be  performed  is  of  the  essence  of 
the  agreement:  Steele  v.  Branch,  40  Cal.  4.  Aa 
a  general  rule  in  equity,  time  is  not  of  the  es- 
sence of  the  contract:  LI. ;  see  Grey  v.  Tuhhs, 
43  Id.  359;  Vassaidt  v.  Eilioardi,  43  LI.  458, 
where  time  was  made  of  the  essence  of  tlie  con- 
tract by  express  terms.  And  while  time  may 
not  be  essential  unless  made  so  by  the  contract. 
Brown  v,  CovUlaud,  6  Id.  560,  yet  in  every  in- 
stance it  will  devolve  upon  t'le  party  asking 
the  relief  to  account  for  his  delay:  II.  Rea- 
sonable exercise  of  one's  rights  must  be  made, 


^i 


TiTLK  III,  Chap.  II.] 


SPECIFIC  RELIEF. 


§§  3385-3389 


and,  on  the  other  hand,  he  is  entitled  to  a  reason- 
able tinio  lu  ^vhich  to  exeicise  them:  Vance  v. 
Penri,  41  Id.  GSG;  lhar<<t  v.  Jhijol,  44  Id.  2:10; 
ra.v.sft?j//  V.  Edirards,  supra;  see  also  Day  v. 
Cohn,  8  West  Cuast  Rep.  577.  See  supra, 
"Liidics  Cars  Rri_i;ht." 

Questions  of  practice. — Sj^ecific  perform- 
ance will  bo  decreed  whenever  tlie  parties,  or 
the  hubject-matter,  or  so  much  thereof  as  Is  suf- 
tieieiit  to  enable  the  court  to  enforce  its  decree, 
is  within  the  jurisdiction  of  the  court:  Rourke 
V.  M  ,  LaiKjIilin,  38  Cal.  19G.  The  fact  that  the 
vendor  is  without  the  state  does  not  oust  tiie 
court  of  jurisdiction;  a  eoniinissiouer  may  exe- 
cute tlie  »lecd:  Id.  The  suit  for  specific  per- 
fortnancc  may  be  brought  within  two  years 
after  the  cause  of  action  accrues:  Lowell  v.  Kier, 
60  Cal.  C4G.  Kor  will  the  death  of  the  vendor 
and  nppointment  of  executors  more  than  a  jear 
before  action  commenced  defeat  the  action:  Iil, 
Ai:d  that  the  vendee's  right  is  not  affected  by 
lapse  of  time  so  long  as  lie  is  in  possession,  see 
Daji  V.  Cohn,  3  West  Coast  Rep.  577.  After  a 
decree  in  favor  of  the  plaintiff,  he  may  demand 
its  enforcement  at  any  tin^e  before  the  expira- 
tion of  the  statute  of  limitations:  Iiediii(/ioii  v. 
Chcifc,  34  Cal.  GGG.  It  was  said  in  Jlonison  v. 
Lods,  od  Id.  381,  to  be  to  the  interest  of  the 
losing  party  to  have  writteu  findings  tiled. 

3385.  Remedy  mutual. 

Section  3385  was  repealed  by  act  approved  ilarch  30,  1874;  Amendments  •  1873-4,  2G7; 
took  effect  July  I,  1874. 

3386.  No  remedy  unless  mutual. 

Sec.  338G.  Neither  party  to  an  obligation  can  be  compelled  specifically  to 
perform  it,  unless  the  other  party  thereto  has  performed,  or  is  compellable 
specifically  to  perform,  everj'thing  to  which  the  former  is  entitled  under  the 
same  obligation,  either  completely  or  nearly  so,  together  with  full  compensation 
for  any  want  of  entire  performance. 


That  nnder  eection  1597  of  the  Co<le  of  Civil 
Procedure  courts  of  probate  Jiave  no  more  ex- 
tensive power  than  courts  of  e<juity  in  regard 
to  enforcing  contracts,  and  that  the  nilcs  re- 
garding parties  to  tlie  action  are  equally  api)li- 
cablc  to  both,  see  Estate  of  Corwin,  Gl  Cal.  I  GO. 
At  any  time  within  six  months  of  the  dismissal 
without  prejudice  of  a  petition  to  the  probate 
cmrt  to  compel  a  specilic  performance  of  the 
deceased's  contract  to  convey  laud,  suit  there- 
for maybe  brought  in  the  superior  court:  JJall 
V.  Hue,  G4  Cal.  443. 

Tiiat  in  an  action  to  specifically  enforce  a 
written  agreement  to  convey  land  it  is  compe- 
tent for  the  defendant  to  show  tliat  by  a  jiarol 
agreement  the  title  should  remain  in  him  until 
certain  moneys  were  repaid,  see  IlewU'tt  v. 
Jimier,  G3  Cal.  185;  see  also  Bttrsolon  v.  Neio- 
ton,  G3  III.  '2'J3,  where  evidence  of  a  suliseipient 
parol  agreement  was  admitted  in  a  similar 
action. 

An  amendment  to  tlie  complaint  in  a  suit  for 
specific  performance,  alleging  tiie  adequacy  of 
the  price  agreed  to  be  paid,  may  be  allowed 
after  the  trial  and  during  the  argument:  IJall 
V.  Hire,  G4  Cal.  443. 

Speciiiceilly  enforcing  revised  contract: 
See  sec.  3402. 


Mutuality  requisite:  See  in  note  to  sec. 
S3S4,  "Specific  Performance  of  Contracts  Gen- 
erally." Say  the  court  in  Stnnjia  v.  Onlindo,  59 
Cal.  '28,  31:  "And  iu  addition  to  the  e^mcnt  of 
fairness,  justice,  and  certainty,  agreements  of 
tlie  character  of  that  now  before  us  must  be  mu- 
tual before  the  power  of  the  court  to  order  spe- 
ciiio  performance  can  bo  successfully  invoked: 
Cooper  V.  Pena,  21  Cal.  403;    VoiHiaaU  v.  Ed- 


wards, 43  Id.  465;  Marhh  Co.  v.  liiplnj,  10 
Wall.  .3:50;  Fry  on  Spec.  I'erf.  Cont.,  sec.  2SG." 
Hero  there  was  a  contract  involving  the  exer- 
cise of  personal  skill,  and  thereby  giving  the 
plaintiffs  the  power  to  abandon  it;  the  court 
refused  specific  performance. 

Performance  by  party  seeking  execu- 
tion: See  note  to  sec  3384.  Compare  also  with 
sec.  3392. 


3387.    Distinction  between  real  and  personal  property. 

Sec.  3387.  It  is  to  be  presumed  that  the  breach  of  an  agreement  to  transfer 
real  property  cannot  be  adequately  relieved  by  pecuniary  compensation,  and  that 
the  breach  of  an  agreement  to  transfer  personal  property  can  be  thus  relieved. 

8388.    Contract  signed  by  one  party  only  may  be  enforced  by  other. 

Sec.  3388.  A  party  who  has  signed  a  written  contract  may  be  compelled 
specifically  to  perform  it,  though  the  other  party  has  not  signed  it,  if  the  latter 
Las  performed  or  oifers  to  perform  it  on  his  part,  and  the  case  is  otherwise 
proper  for  enforcing  specific  performance. 

See  Va.ssauU  v.  Edwards,  43  Cal.  458,  in  point;  see  sec.  3384,  in  note 

3389.    Liquidation  of  damages  not  a  bar  to  specific  performance. 

Sec.  3389.  A  contract  otherwise  proper  to  bo  specifically  enforced  may  be 
thus  enforced,  though  a  jienalty  is  imposed,  or  the  damages  arc  liquidated  for 
its  breach,  and  the  jDarty  in  default  is  willing  to  i:ay  the  same» 

595 


§§  3390-3393  RELIEF.  [Drv.  IV,  Pakt  I, 

3390.  ^Vhat  cannot  be  FipecificaUy  enforced. 

SEa  3390.     The  following  obligations  cannot  be  specifically  enforced: 

1.  An  obligation  to  rentier  personal  service; 

2.  An  obligation  to  employ  another  in  personal  service; 

3.  An  agreement  to  submit  a  controversy  to  arbitration; 

4.  An  agreement  to  perform  an  act  which  the  party  has  not  power  lawfully  to 
perform  when  required  to  do  so; 

5.  An  agreement  to  procure  the  act  or  consent  of  the  wife  of  the  contracting 
party,  or^of  any  other  third  person;  or, 

G.  An  agreement,  the  terms  of  which  are  not  sufficiently  certain  to  make  the 

precise  act  which  is  to  be  done  clearly  ascertainable. 

Subd.  1.    Obligation  to  render  personal        Subd.    6.    Certainty:    See    note    to    sec. 

service:    See  Sturgis  v.  Galimlo,  59  Cul.  23,  33S4.     A  court  of  etjuity  will  not  specilically 

where  tlie  contract  calling  for  personal  service  enforce  any  contract  unless  it  be  complete  and 

by  one  of  the  parties,  and  therefore  not  specifi-  certain.     This  rule  a[)plies  as  well  to  parties  aa 

cally  enforceable  against  him,  could  not  be  en-  to  price,  subject-matter,  etc. :  Co-o/ierative  As' 

forced  at  his  petition.     That  equity  will  not  soclation  v.  Fhillips,  56  Cal.  539.     Nor  can  the 

enforce  contracts  for  personal  services,  especially  aid  of  the  court  be  had  to  enforce  that  which 

■where  tliey  are  confidential  in  their  nature,  see  is  only  the  basis  of  an  agreement,  and  not  tte 

Cooper  V.  Peua,  21  Id.  403.  agreement  itself:  Id. 

8391.    What  parties  cannot  be  compelled  to  perform. 

Sec.  3391.  Specific  performance  cannot  be  enforced  against  a  party  to  a  coi  - 
tract  in  any  of  the  following  cases: 

1.  If  he  has  not  received  an  adequate  consideration  for  the  contract; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable; 

3.  If  his  assent  was  obtained  by  the  misrepresentations,  concealment,  cii>» 
cumveution,  or  unfair  practices  of  any  party  to  whom  performance  would 
become  due  under  the  contract,  or  by  any  promise  of  such  jjarty  which  has  nob 
been  substantially  fulfilled;  or, 

4.  If  his  assent  was  given  under  the  influence  of  mistake,  misapprehension, 

or  surprise,  except  that  where  the  contract  provides  for  compensation  in  caso 

of  mistake,  a  mistake  within  the  scope  of  such  provision  may  be  compensated 

for,  and  the  contract  specifically  enforced  in  other  respects,  if  proper  to  be  so 

enforced. 

Subd.  1.  Inadequacy  of  consideration.  Subds.  2,  3.  Coatract  must  b3  just  and 
Tiiat  this  is  not  suliiciunt,  as  a  general  rule,  fairly  mads. — Seethe  principle  of  tliese  sub- 
to  lefuse  to  grant  relief,  see  the  note  to  ^nj-  divisions  supported  by  decisions  in  tlie  note  to 
inonr  v.  Drlaiinj,  |,>  Am.  Dec.  299.  Sjiecilic  sec.  33S4,  "Spcciiio  Performance  of  Contracts 
peri'onnance  i)f  voluntary  agreements:  See  the  Generally." 
note  to  Anderson  v.  (Jreeji,  23  h\,  42;>-431. 

3332.    Wlinl  parlies  cannot  hai'e  specific  performance  in  their  favor. 

Sec.  ;^:392.  Specific  performance  cannot  be  enforced  in  favor  of  a  party  who 
has  not  fully  and  fairlj'  performed  all  the  couditious  precedent  on  his  part  to 
the  obligation  of  the  other  party,  except  where  his  failure  to  perform  is  only 
partial,  and  either  entirely  immaterial,  or  Ct,pable  of  being  fully  compensated, 
in  which  case  specific  performance  may  be  compelled,  upon  full  compensation 
being  made  for  the  default. 

See  note  to  sec.  3.'5S4,  and  compare  with  sec.  33SG. 

3303.     Whi're  performance  hur.slt. 

Section  3393  was  lepcaled  by  act  approved  "Wrbh  v.  London  d'  Portxmoufh  Fiailwai/  Co., 

^lareli   .30.    IS7J;    Amendments    IS73-4,    2(37;  3  Do  fJ.  M.  <&  (i.  521 ;  reversing  S.  C,  9  Hare, 

took  cdfct  .Inly  I,  1874.     '1  he  repealed  section  129;   ir<'(/;/(rooc/ v.  y|'/a/«.s  G  Beav.  GOO.    Thus, 

and  the  couniissioners'  note  were  as  follows;  except    u;ider   special   circumstances,    a   party 

"  Si;(".  ;»;;;),3.    Speci.ic  performance  cannot  be  will  not  be  compelled  to  do  an  act  subjecting 

compollcii  wlien  it  would  operate  moie  harshly  him    to   a   forfeiture:    I'edcock   v.   Peitson,    11 

upon  the  party  retpiired  to  perform  tlian  its  re-  I3eav.  355:"  Commissioners'  note, 
fusal  would  operate  upon  the  party  seeking  it." 


Title  III,  Chap.  II.]  SPECIFIC  RELII:F.  §§  3394-3401 

3394.  Agreement  to  sell  propprtij  b>/  one  who  has  no  title. 

Sec.  3394.  An  agreement  for  the  sale  of  property  cannot  be  specifically 
enforced  in  favor  of  a  seller  who  cannot  give  to  the  buyer  a  title  free  from  rea- 
sonable doubt. 

.    Doubt  as  to  plaintiff's  title:  See  note  to  sec.  3384,  "  PlaintilTa  Good  Faith  and  Readiness 
to  Perform." 

3395.  Relief  against  parties  claiming  under  person  hound  to  perform. 

Sec.  3395.  "Whenever  an  obligation  in  respect  to  real  property  would  be 
specifically  enforced  against  a  particular  person,  it  may  be  in  like  manner 
enforced  against  any  other  person  claiming  under  him  by  a  title  created  subse- 
quently to  the  obligation,  except  a  purchaser  or  incumbran<rer  in  good  faith  and 
for  value,  and  except,  also,  that  any  such  person  may  exonerate  himself  by  con- 
veying all  his  estate  to  the  person  entitled  to  enforce  the  obligation. 

See  Peasley  v.  Ilnrt,  3  West  Coast  Rep.  023,  where  a  contract  was  enforced  against  »  pur- 
cliaser  froui  the  vendor. 

ARTICLE  IV. 

HE  VISION    OF    CONTRACTS. 

Co99.    WJten  contract  may  be  revised. 

Sec  3399.  When,  through  fraud  or  a  mutual  mistake  of  the  parties,  or  a 
mistake  of  one  party,  which  the  other  at  the  time  knew  or  suspected,  a  wjitten 
contract  does  not  truly  express  the  intention  of  the  parties,  it  ma}'  be  revised 
on  the  application  of  a  party  aggrieved,  so  as  to  express  that  intention,  so  lar  as 
it  can  be  done  without  prejudice  to  rights  acquired  by  third  persons,  in  jood 
faith  and  for  value. 

Revision  of   contracts. — "'Revision'    is  See  Korher  v.  TTayford,^^  Cal.  ."510,  -^hera 

here  used    for  tlie  word  '  rcfonnatioa'  iu   our  the  court's  power  iu  reforming  a  deed  wro*  Iteld 

decisions:"  Commissioners' statcineut.  proyierly  exercised.     AwWn  Korher  v.  JJu^J'ord, 

Rsvissd  to  express  intention:  See    sec.  3  West  Coast  Re)).  293.  the  right  to  have  *  deed 

3401,  and  note.  reformed  to  inclmlo  land  ondtted  by  misti  ke  was 

"This  is  all  that  can  be  taken  into  consider-  not  permittetl  to  he  defeatetl  l)y  tiling  &  decla- 
ation.  The  court  cannot  add  clauses  whicli  the  ration  of  homestead  on  the  land  so  onntl  ;d.  la 
parties  did  not  intend  to  insert,  even  thoutrh  Janiatt  v.  I'ooprr,  50  Cal.  70.'$,  a  mortga  ,'e  was 
they  may  lie  necessary  to  ma.ke  the  contract  fair  reformed  to  include  land  omitted  by  m  stake, 
and  effective:  Thoni]>-0)uul'e  Scale  xM/;/.  Co.  v.  and  as  so  reformed  was  foreclosed.  So  i  i  L-en- 
Oyjooff, '2(\  Com).  10;  J /tint  v.  Ilotuoncuiiere,  1  hoot  v.  Chamherla'ni,  Id.  G3C,  the  coi  rt  ad- 
Pet.  1;  8  Wheat.  174;  see  Dftts  v.  O'rener,  31  mittel  parol  evidence  to  make  a  lease  sp-ak  the 
Ala.  219.  'Good  faith.'  A  purchaser  with  actual  intention  of  tiie  parties  at  the  ti  ne  the 
notice  of  the  mistake  is  not  protectetl:  Go^irei--  lease  was  executed,  the  cmiditions  thus  sought 
neiir  v.  7'iliiM,  G  Paige,  317;  atiirming  S.  C,  1  to  l>e  proved  having  been  omitted  by  nj  stake, 
Edw.  Cli.  477.  '  Value:*  See  Le  Hoy  v.  PI  at,  4  but  their  omission  stated  by  tlie  otiier  p  irty  at 
Paige,  77;  .Story's  Eip  .lur.,  sec.  103.  'Mistake:'  the  time  to  make  no  difference.  A  contract  was 
Smith  V.  MrDouiial,  2  Cal.  5S3;  Kenyan  v.  reformed  in  llhiifinx  v.  /'ursovn,  3  West  Coast 
We!ty.  20  I>1.  0:57;  J'ar.fmi.tv.  Fui  rl/aid-H,  22  Id.  Rep.  31,  so  as' to  inelmle  an  important  stip- 
S43;'/;"r<v.  ir^V.sort,  28  Id.  G.32;  \V<t<ienh'ast  w  ulation  whicli  one  of  the  parties  kne  v  was 
Wa-'<hljiirii,  12  Id.  20S.  Courts  of  equity—  omitted,  although  the  other  might  hare  dis- 
Wide   discretion:   LeMrade   v.    liarlle,    19  Id.  covered  it. 

GGO.     Action  to  'reform'  or  '  revise,'  when  and  In  Uliran  v.  Ol'ivw*,  Gl  Cal.  3S2,  wher»  fraud 

how  lies,  etc. :  Pierson  v.  M'CahiU,  21  Id.  122;  was  alleged  in  the  obtaining  the  deed,  th»  court, 

Kent  v.  Snyder,  33  Id.  GOG;  compare  Caxtle  v.  instead  of  reforming  it,  iu  effect  set  it  as  deaud 

JJader.  23  Id.   75;  El'ia  v.  Crawford,   39   Id.  caucele<l  it. 
523:"  Couunrssiouers'  uote. 

3400.  Presumption  as  to  intent  of  parties. 

Sf.c.  3400.  For  the  purpose  of  revising  a  contract,  it  must  be  presume  1  that 
all  the  parties  thereto  intended  to  make  an  equitable  and  conscicntioua  ugrec- 
ment. 

3401.  Principles  of  revviion. 

Sec.  3401.  In  revi.sing  a  written  instrument,  the  court  may  inquire  what  the 
instrument  was  intended  to  mean,  and  what  were  intended  to  be  its  legal  cou- 

507 


|§  3402-3408 


RELIEF. 


[Div.  IV.  Part  I, 


sequences,  and  is  not  confined  to  the  inquiry  what  the  language  of  the  instru- 
ment was  intended  to  be. 

"  ThJ3  i3  contrary  to  the  nile  generally  ao-  but  is  sanctioned  by  a  recent  English  decision: 
irnowledged  in  t!ie  United  States  (see  3  N.  Y.  Walker  v.  Avmiitronff,  8  De  G.  M.  &  G.  531:" 
19;  23  N.   Y.  500;  1  Pet.   1;  8  Wheat.  174),     Commissioners' note. 

3402.   Enforcement  of  revised  confracL 

Sec.  3402.  A  contract  may  be  first  revised  and  then  specifically  en- 
forced. 

Enforcing  revised  contract:  See  De  Witt  held  not  enforceable  vrntil  revised  to  speak  tha 
V.  JJuacan,  46  Cal.  342.  where  a  contract  waa    intention  of  the  parties. 


AETICLE  V. 

EESCISSION   OF  CONTRACTS. 

3406.    Wlien  rescission  may  be  adjudged. 

Sec  340G.     The  rescission  of  a  written  contract  may  be  adjudged,  on  the 
application  of  a  party  aggrieved : 

1.  In  any  of   the  cases  mentioned  in  section  sixteen  hundi'ed  and  eighty- 
nine;  or, 

2.  Where  the  contract  is  unlawful,  for  causes  not  apparent  upon  its  face,  and 
the  parties  were  not  equally  in  fault;  or, 

3.  When  the  public  interest  will  be  prejudiced  by  permitting  it  to  stand. 


Rescission  of  contracts  by  party  thereto: 
Sec.  IG89.  ante. 

Rescission  against  consent,  how  effect- 
ed: Sec.  1G91,  ante. 

Judioial  resoission,  generally:  "Soenoto 
to  sec.  3399,  ante.  It  will  he  observed  that 
this  section  provides  only  for  a  jiidgnieut  of 
rescission,  without  cancellation.  Its  scope  is 
tlierefore  properly  broader  than  it  would  be  in 
the  latter  case.  It  may  be  desirable  to  have  a 
conclusive  adjudication  upon  the  validity  of  a 
contract,  in  cases  where  there  is  not  sutiicient 
ground  for  further  interference.  Tlie  discretion 
of  the  court  as  to  the  costs  is  a  suilicient  check 
upon  frivolous  actions  of  this  nature.  Only 
the  injured  party,  or  those  claiming  under  him, 
can  impeach  a  contract  on  account  of  his  want 
of  consent:  Jackson  v.  Eaton,  20  Johns.  478. 
Of  course  a  party  committing  a  fraud  cannot 


to  the  plaintiff:  Commissioners  F.  D.  S.  J.  v. 
Younger,  29  Id,  172;  Morrison  v.  Lods,  39  Id. 
381;  Piirdij  v.  Dullard,  41  Id.  444.  And  to 
enaljle  a  party  to  rescind  or  reform  a  contract, 
lie  must  use  reasonable  diligence  in  pursuing 
the  remedy:  Barfiell  v.  Price,  40  Id.  53 j; 
Collins  V.  Townnend,  58  Id.  COS;  and  see  sec. 
1G91,  ante,  and  note.  In  Norton  v.  Jackson,  5 
Cal.  2G2,  the  court  granted  relief  by  resciuding 
tlie  contract  at  the  prayer  of  the  vendee,  on 
showing  the  insolvency  of  the  vendor,  his  in- 
ability to  respond  in  damages  for  breach  of 
covenants,  an  outstanding  superior  title  in  a 
third  person,  and  on  offering  to  deliver  posses- 
sion and  account  for  the  profits. 

Contract  against  pul)lic  policy  is  void,  there 
is  nothing  to  rescind:  Martin  v.  Wade,  37  Cal. 
168,  and  see  sec.  .3413.  Where  there  is  great 
weakness  of  mind  in  a  person  executing  a  con- 


have  the  contract  set  aside  on  that  ground:"     veyance  of  land,  arising  from  age,  sickness,  or 


Commissioners'  note 

Cancellation  of  instruments:  See  sees. 
3412et  seq. 

Rescission  vrhere  there  is  no  actual 
fraud,  accident,  or  mistake,  as  for  inade- 
quacy of  con-sideration,  for  taking  advantage 
of  one's  position,  and  of  contracts  with  rever- 
sioners: See  note  to  Jlouuh's  AdmW  v.  Hunt, 
15  Am.  Dec.  5C9,  572. 

Rescission  of  contracts.— Equity  aims  to  do 
exact  justice  between  parties,  and  wi.l  not  grant 
a  rescission  on  account  of  an  obstacle  to  its 
coinpletion  caused  by  the  party's  own  fault: 
Salmon  v.  Hoffman,  2  Cal.  l;;S  And  some 
substantial  reason  for  this  exercise  of  the  court's 
power  must  be  shown:  Sranlaa  v.  Uillan,  5  Id. 
182.  One  party  cannot  violate  a  contract  and 
then  ask  its  rescission  on  tiie  ground  tliat  the 
otlier  party  has  violated  it:  SUUc  v.  McCaah'ii, 
15  Id.  429.  Nor  where  rescission  is  asked  on 
the  ground  of  concealment,  or  misreiiresenta- 
tioa  will  it  be  decreed  wliere  no  injury  results 


any  other  cause,  though  not  amounting  to  ab- 
solute disqualification,  and  the  consideration 
given  is  grossly  inadequate,  imposition  or  un- 
due influence  will  be  inferred,  and  a  court  of 
equity  will,  upon  proper  and  reasonable  appli- 
cation of  the  injured  party,  interfere  ami  set 
the  conveyance  aside:  Moore  v.  Moore,  56 
Id.  89. 

That  party  asking  a  rescission  must  show 
compliance  on  his  part  with  the  conditions  en- 
titling  him  thereto,  see  Booth  v.  Chapman,  59 
Cal.  i49. 

Ill  Oliras  v.  Olivas,  61  Cal.  382,  where  a 
reformation  of  a  deed  was  sought,  tlie  court 
rendered  a  decree,  in  effect,  canceling  and  set- 
ting it  asi^le. 

Rescinding  or  suing  for  damages. — That 
the  injureil  party  may  waive  his  riglit  to  re- 
scind and  sue  for  damages,  see  Alrartz  v. 
Br  nnian,  7  Cal.  503;  Joi>es  v.  Post,  6  Id.  102. 

R33  mission,  how  effected:  See  sec.  1G91, 
and  note. 


598 


TitLE  III,  Chap.  IH.I  TREVENTIVE  RELIEF.  §^  3J 07-3420 

3407.  Rescission  for  mislahe. 

Sec.  3107.     Rescission  cannot  beadjudf^ecl  for  nnere  mistake,  unless  the  party ' 
against  wliom  it  is  adjudged  can  he  restored  to  substantially  the  same  position 
as  if  the  contract  had  not  been  made.  ' 

Restorins  party  to  statu  quo:  See  sec.  1G91. 

3408.  Court  may  require partij  rescinding  to  do  equity. 

Sec.  3408.  On  adjudging-  the  rescission  of  a  contract,  the  court  may  require 
the  party  to  whom  such  relief  is  granted  to  make  any  compensation  to  the  other 
•which  justice  may  require. 

ARTICLE  VI. 

CANCELLATION   OF   INSTEUMENTS. 

8412.    When  cnnceUntion  may  be  ordered. 

Sec  3412.     A  written  insti-ument,  in  respect  to  which  there  is  a  reasonable, 
apprehension  that  if  left  outstanding  it  may  cause  serious  injury  to  a  person 
against  whom  it  is  void  or  voidable,  may,  upon  his  application,  be  so  adjudged,, 
and  ordered  to  be  delivered  up  or  canceled. 

Rescxssioii  of   contracts:    See  autf,  sees,  out  anything  said  as  to  acceptance  or  non-ac- 

340U  ct  t:<(i.  cejitauce,    rucorilcil   by  the   a;^ent  of    tlie   one 

Removing  cloud  on  title:  See  in  note  to  m.ikin;,'  tlie   i>roposal,  claiming,'  that  it  was  a 

see.  7.38,  Code  I'iv.  I'roc.  suhristing  cimtfact  in  wliich  he  liad  a;i  interest,. 

Cancellation   and   alteration    of    iustru-  and  procures  an  assigiiincut  of  the  proposee'a 

meuts  by  parties  thereto:  See  sees.  1G97  ct  interest  to  a  th.ird  person,  the  proposer  i?  cn- 

Ecq.  titled  to  a  decree  canecliiig  the  proposal:   U'lanf 

DecreelugcanoellTition.—Wlicre  a  written  v.  Brown,  b'.)  Cix\.  104. 
proposal  to  sell  l;uid  was,  after  its  return  with- 

3413.  Instrument  olwiously  void. 

Sec  3413.  An  instrument,  the  invalidity  of  which  is  apparent  upon  its  face, 
or  upon  the  face  of  another  instrument  wliich  is  necessary  to  the  use  of  the 
former  in  evidence,  is  not  to  be  deemed  capable  of  causing  injury,  within  the 
provisions  of  the  last  section. 

See  note  to  preceding  section. 

3414.  Cancellation  in  part. 

Sec  3414.  ^There  an  instinament  is  evidence  of  different  rights  or  obligations, 
it  may  be  canceled  in  part,  and  allowed  to  stand  for  the  residue. 

"Thns  an  indorser  of  a  hill  may  be  entitled     valid  ai,'ainst  a  part}'  entitled   to  cancel  it  ia 
to  have  his  iiidiirseincnt  canceled,   in  a  case     ])art,  althMugii  sueh  casus  are  doubt-joS  rare;  "^ 
wl'.icli   wouid   not  entitle  the  drawer  to  any    Coauuidsioucrs'  note, 
relief.     And  an  iustruuieut  might  be  partially 


CnAPTER  III. 

PREVENTIVE   RELIEF. 
3420.    Preventive  relief,  how  qranted. 

Si:c.  3420.     Preventive  relief  is  granted  by  injunction,  pi'ovisional  or  final. 

Preventive  relief  by  means  other  tlian  by  t'.ie  new  trial  iloes  not  place  him  in  a  position 

inj.nicti.ou:  See  in  note  to  sec.  ."."JCVl,  a«/;r'.  diwercnt  from   tliat  in  whicli   lio  was   prior  to 

_  Injiuiotioa,  G-ii---illy-— Wliere  an  in.junc-  tliC  lirst  trial:   y/<;.sw  v.    Vihul'i;  ?A  C.d.  272. 

tion  restrains  dei'endant,  "his  agents  and  sir-  Courts  of  equity   liave   wisely  refused   to   lay. 

vants"  Imt  t!ie  sherilF  is  not  a  forni;d  partv,  ho  down  any  liaiits  to  their  riglit  to  grant  injunc-. 

ia  nevertheless  bound  to  obey  on  being  notilicd  tions.     Tin;  right  must  be  exercised  with  duo 

in  wricmg  of  Iheorder:  Unffotideau  \ .  Edmoiid-  caution,   but  it  must  be  exercised  in   proper 

10.',  17  Cal.  413.  easos:    Mcrcctl  Miitiiitj  Co.  v.   Fremont,   7  Id. 

If  the  iduntiir  in  entitled  to  an  injunction  ^1').     Where  t!ic  complainant's  riglits  are  cer- ■ 

before  a  lir.st  trial,  ami  it  is  ordered,  and  the  tain,  the  e  mrt  cannot  consider  t!io  inconvcu- 

cause    is   afterwards    tried    and    a   new    trial  i.nce  wliich  wil  result  to  the defenduit:   Wood- 

granted,  tiio  plaintiiF  is  still  entitled  to  retain  rujfw  Norlli  Dloomfuld  M.  Co.,  1  West  Coast: 

liis  injunction  till  trial.     The  mere  granting  of  Hep.  1^3.     By  the  United  States  revised  stat-- 

5D0 


3420 


RELIEF. 


IDiv.  IV,  Part  I, 


mtea,  see.  229G,  relating  to  Iiomestead,  it  is 
provided  tliat  "no  lands  acquired  under  tlie 
provisions  of  this  act  shall,  in  any  event,  be- 
coaie  liable  to  the  satisfaction  of  any  debt  or 
tiebts  contracted  \niiv  to  the  issuing  of  the 
patent;"  therefore  an  injunction  will  be  issued 
to  restrain  a  sale  of  such  a  homestead  on  exe- 
cution for  such  a  debt:  Jililfer  v.  Little,  47  Cal. 
34S.  The  court  dissolved  an  injunction  re- 
straining comniissiouers  under  an  act  of  the 
ligislatnre,  INIay  12,  1S5I,  from  receiving 
niontys  to  b«  pnid  to  them  by  the  act  called 
the  ''Funding  Bill,"  on  the  ground  that  de- 
fendants were  under  bond,  and  the  fnnd  would 
))e  s:ifo  in  their  hands:  San  Francisco  v.  luuid 
Coinifiixi^ioiicr-f,  10  Id.  OS.').  See  Story's  E(j. 
Jur.,  ROC.  12SI).  Supervisors  will  not  be  re- 
strained from  incurring  liabilities  not  a  legol 
cUai-ge  against  the  county:  Linden  v.  C'clse,  4G 
Cal.  171;  Trinity  Co.  v.  McCammon,  25  Id. 
1 19.  But  a  tax-payer  may  enjoin  paj'mrnt  l>y 
the  supervisors  of  moneys  under  a  void  con- 
ti'act:   Mulrein  v.  Kalloch,  GI  Id.  522. 

L>L'fcudants  in  proceedings  to  condemn  land, 
■who  have  a  good  defense  to  the  proceedings, 
cannot  use  such  defense  as  a  j^round  for  the  is- 
suance of  an  injunction  in  that  suit  on  a  cross- 
complaint.  Injunction  must  be  sought  by  an 
independent  action:  Cidi/ornin  P.  /'.  7i.  v. 
C.  P.  n.  n.  Co.,  57  Cal.  649.  Alcchanics, 
etc.,  who  have  liens,  are  entitled  to  restrain  a 
junior  judgment  creditor  from  removing  the 
building  from  tiie  lot,  when  t!ie  securitj'  is 
insuilicient  without  such  building:  Barber  v. 
Ih'ijnoUU,  3.3  Id.  497.  It  has  been  said  tliat 
where  a  plaintiff  is  restrained  by  injunction 
fi-om  another  court,  upon  the  injunction  being 
brought  under  the  notice  of  the  court  in  which 
liis  action  is  ]iendiug,  that  court  should  i-egard 
the  party  attempting  to  proceed  as  laboring 
under  disability  like  an  alien  enemy,  and  de- 
cline to  proceed:  Euijf'ls  v.  Lnbeck,  4  Id.  31; 
but  as  to  this,  see  sec.  7G  Code  Civ.  Proc, 
note. 

Cloud  011  title. — The  execution  of  a  document 
will  not  be  restrained  if  it  would  not,  when  ex- 
ecuted, be  a  cloud  on  ])laintifr's  title.  Cases  of 
a  patent:  Taylor  v.  UnderldU,  40  Cal.  471;  a 
deed  on  a  tax  sale:  Dnrr  v.  Hunt,  18  Id.  307; 
a  shcrilT's  deed:  Pixley  v.  Ifur/^/ins,  15  Id.  128; 
Gold-it ein  V.  Kelly,  51  Id.  301;  Schuyler  v, 
liouij.'Uou,  2  West  Coast  Hep.  899.  If  a  cloud 
■will  lie  created  by  an  exection  sale  ami  sher- 
iff's deed,  it  will  be  enjoined:  Hall  v.  Thicsen, 
61  Cal.  524,  5-26;  White  v.  Nunan,  GO  Id.  406. 
Nor  will  a  sale  for  taxes  be  restrained  if  obvi- 
ously void  on  the  face  of  the  proceedin!,'s: 
Buckiii'll  V.  Story,  3G  Id.  70;  Houghton  v.  Aus- 
tin, 47  Id.  G47;  N.  P.  B.  R.  Co.  v.  Carland,  2 
West  Coast  Rep.  326  (Mont.). 

An  amended  complaint  supersedes  the  origi- 
nal; but  if  the  cause  of  action,  as  it  should  do, 
remains  the  same,  an  injunction  founded  on 
the  original  complaint  remains  good;  and  it  is 
settled  by  the  authorities  that  an  amendment 
may  l)e  made  on  leave,  without  prejudice  to 
an  injunction  previously  granted:  Barber  v. 
Bcyiiobh,  33  Cal.  498;  Sc.lden  v.  \'ermili/ea,  4 
Sandf.  Ch.573;  1  IIofT.  Ch.  301;  U'arbnrlon  v. 
London  etc.  Co.,  2  P.eav.  254;  Pratt  v.  Archer, 
]  .Sim.  <fe  St.  433;  Pickfriivj  v.  Hanson,  2  Sim. 
4F!S;  PnrneHs  v.  Brown,  8  How.  59;  Walker  v. 
Walker,  3  Ga.  302;  and  see  Jones  v.  Frost, 
IfS  C.il.  Clu.  As  to  amending  complaint  after 
ttie  cause  baa  been  reiuoudcd  on  appeal,  so  as 


to  support  the  decree,  see  P/ister  v.  Wade,  69 
Id.  273. 

A  n  appeal  u-ill  not  be  dismissed  though  the 
term  of  the  ofGcers  sought  to  be  enjoined  has 
expired  and  the  statute  under  whi^li  they 
Were  acting  has  been  repealed:  Cohen  v.  Grayf 
54  Cal.  595. 

Individual  cannot  restfain  public  nui* 
Batice.  An  individual  is  not  entitled  to  re* 
strain  the  commission  of  a  public  nuisance  un* 
less  he  sufTers  injury  of  a  different  character 
fi^om  that  which  the  public  suffer:  Bigley  V. 
2\*unan,  53  Cal.  403;  Payne  v.  McKlidey,  54  Id. 
532;  ('roH-ley  v.  Davis,  G3Id.  4G0;  see  also  Code 
Civ.  Proc,  sees.  731  etseq.,  and  notes,  and  sec. 
3403. 

Aftsr  judgment  at  la^w. — After  verdict 
and  neglect  to  apply  for  a  new  trial  within  the 
time  appointed,  a  court  of  equity  will  not  en- 
tertain a  bill  foi-  an  injunction  on  the  ground 
that  the  ori::'inal  demand  was  unconscientious: 
Phelps  V.  Peabody,  7  Cal.  53;  nor  where  the 
party  miglit  have  applied  to  the  court  to  set 
aside  the  judgment  or  verdict,  and  has  not 
done  so:  Borland  v.  Thornton,  12  Id.  440;  nor 
where  he  moves  for  a  new  trial  and  fails:  CoU 
lins  V.  Butler,  14  Id.  223;  nor  in  any  case 
where  the  remedy  by  motion  in  the  other 
court  is  ample:  Imlay  v.  CarpmHer,  Id.  173; 
Aldrich  V.  Stejyhcns,  40  Id,  G7G;  or  the  facts 
•were  known  and  might  have  been  raised  as 
a  defense:  Beaudry  v.  Febh,  47  Id.  183. 
So  equity  will  not  restrain  proceedings  un- 
der a  judgment  rendered  in  an  action  prose- 
cuted by  a  plaintiff,  the  initial  of  whose  chris- 
tian name,  and  not  the  whole  name,  was  given: 
Boyd  V.  Plainer,  1  West  Coast  Rep.  798. 
Courts  of  equity  only  interpose  on  cqui'table 
grounds  to  do  justice,  where,  from  their  or- 
ganization or  otiierwise,  the  common-law  tri- 
bunals are  incapable  of  rendering  it:  Grejory 
V.  Ford,  14  Cal.  144.  In  the  rare  case  when  a 
bill  in  equity  for  a  new  trial  will  lie,  it  must 
be  shown  distinctly  that  the  facts  .ire  of  con- 
trolling force;  that  they  were  not  known  to 
the  defendants  at  the  time  of  the  trial;  that 
the  defendants  used  all  proper  diligence  to 
prepare  their  case  for  trial,  and  to  procure  the 
evidence;  and  that  they  were  unable,  without 
fault  or  negligence  on  their  part,  to  procure 
it;  that  the  testimony  is  within  their  control, 
and  that  tiiey  will  be  able  to  procure  it  on  an- 
other trial.  The  bill  should  state  particularly 
the  facts  to  be  proved,  the  names  of  the  wit- 
nesses, and  show  the  bearing  and  relevancy 
of  the  proposed  proofs,  and  when  and  how  the 
facts  discovered  came  to  the  knowledge  <.f  the 
l)laintiff,  and  why  no  motion  for  a  new  trial 
was  made  in  due  time:  Mulford  v.  Cohn,  18 
Id.  4G;  see  French  v.  Garner,  7  Port.  552; 
Duncan  v.  Lyon,  3  Johns.  Ch.  351. 

S^les  under  deed  of  trusts  will  not  be  en- 
joined: Grant  V.  Burr,  54  Cal.  299;  Bateman 
v.  Burr,  57  Id.  480;  Durkin  v.  Burr,  GO  Id. 
360. 

Diversion  of  -water:  See  in/ra,  in  note, 
"Irreparable  Injury." 

Kestraiiiing  lagislation. — The  legislature 
has  the  actual  power  to  pass  any  act  it  pleases, 
and  the  courts  will  not  interfere.  The  con- 
stitution has  provided  a  more  apj)ropriate 
remedy:  Xowjncs  v.  Douylass,  7  Cal.  70. 

Tases. — In  all  cases  involving  simply  the 
question  of  taxation,  the  issue  is  strictly  one 
at  couiUiou  law,  and  courts  of  equity  can  take 


COO 


Title  III,  Cuap.  III.] 


TREVENTIVE  RELIEF. 


§3420 


no  cognizance  thereof:  Minturn  v.  Ilayn,  2 
Cul.  i'lDii.  A  sheriff  whose  term  of  office  lias 
exjiired  has  uo  right  to  collect  taxes  (lua  tax 
collector.  After  his  settlement  with  the 
auditor,  the  ilelinqueut  taxes  are  ti'ansferred 
to  the  tax-list  of  t)ie  succetxling  year,  and  it 
is  the  duty  of  the  then  slicritf  to  proceed  to 
colkct    them,   and    the    former    sheriff    may 

ijrobiibly  be  restrained:  Fremont  v.  Bolhig,  11 
-d.  3d0.  A  tax-payer  cannot  enjoin  tlie  col- 
lection of  county  taxes  on  the  ground  that  he 
has,  ill  former  years,  paid  county  taxes  on 
his  property  illegally  assessed  and  collected: 
Fremont  v.  Early,  11  Id.  .301.  Nor  when  it 
does  not  appear  that  tlie  complainant  would 
sustain  an  irreparable  injury  or  the  sale 
world  cast  a  cloud  on  his  title:  Dean  v.  Davis, 
61  Id.  400.  A  tax-payer  cannot  enjoin  the  cir- 
c«lati:jn  of  municipal  bonds  void  in  the  Iiands 
of  a  bona  fide  holder:  McVoij  v.  Uriant,  53  Id. 
248.  A  property  holder  cannot  restrain  the 
performance  of  a  ministerial  duty  cast  by  law 
U[)on  su[)crvisor3  merely,  upon  the  ground 
that  the  effect  might  be,  at  some  future  time, 
to  subject  his  property  to  taxation:  Pattirxon 
V.  Yuba  Co.,  13  Id.  175.  A  person  seeking  to 
enjoin  the  collection  of  a  tax  must  show  that 
there  is  error,  to  his  prejudice,  to  be  corrected 
in  the  list.  A  board  not  meeting  as  required 
by  law,  or  the  fact  tliat  no  notice  of  their  meet- 
ing lias  l)eeu  given,  is  not  suflicient:  Coiuill  v. 
Douh,  12  Id.  273;  and  the  injuiy  resulting  from 
the  collection  to  the  owner  must  be  irreparable: 
liUlir  V.  Pahh,  Id.  29S;  Berri  v.  Patch, 
h\.  299.  So  wiiere  part  of  the  lands  in  a  levee 
district  sultjcct  to  assessment  are  omitted, 
collection  of  the  assessment  will  bo  restrained: 
Zicve  Did.  No.  I  V.  Iluher,  57  Id.  41;  Uohe  v. 
Perdue,  02  Id.  545.  As  to  restraining  execu- 
tion of  a  deed  on  a  sale  for  taxes,  or  restrain- 
ing the  sale  itself,  see  supra,  "Injunction  Gen- 
erally." A  court  of  equity  might  perhaps  re- 
strain a  sale  for  taxes  if  it  appeared  that  the 
Rnforcenient  of  the  tax  would  lead  to  a  multi- 
plieitv  of  suits:  S,  <fr  L.  Societi/  v.  Austin,  4G 
Id.  410;  Doirs  v.  Chicago,  11  Wall.  110;  but 
the  supreme  court  expressed  a  strong  opinion 
against  tlio  propriety  of  issuing  injunctions  to 
restrain  tlie  collection  of  taxes,  in  C.  P.  A".  /?. 
Co.  V.  Corcoran,  48  Cal.  05.  Wiiere,  in  an 
action  to  enforce  a  lien  on  lands  for  delin- 
quent taxes,  there  was  no  service  of  summons, 
a.id  no  appearance,  and  the  court  commis- 
eioncr  drauglitcd  the  decree,  reciting  that  the 
summons  iiad  l)ecn  served,  and  tlio  judge,  de- 
ceived by  the  false  rccit;d,  signed  it,  and  at 
tlio  slierilfs  sale,  under  the  decree,  the  court 
co:iimijsioner  became  the  purchaser,  and  ob- 
tained a  slieriffs  deed,  the  court  restrained 
tlie  purchaser  from  setting  up  tiie  judgment 
as  au  estoppel:  Martin  v.  Par.wns,  49  Id.  94; 
see  liirnsly  v.  Powell,  1  Vc^.  sen.  119,  285; 
McMillan.  V.  J,'ei/nold.i,  11  Cal.  ^~2;  Galntlanv. 
Erwin,  lloi.k.  Oh.  48;  Dobson  v.  /V/vr.  )2  N. 
Y.  101;  J!rlili/ej>orl  L'ank  v.  Fldriiljc,2fiCoim. 
550;   Hurray  v.  Dake,  48  Cal.  04.'>. 

A  sale  for  taxes  obviously  void  on  the  face 
of  tlie  proceedings  will  not  be  restrained: 
ISuchnell  V.  Si  ova,  30  Cal.  70:  //oi'jhlon  v. 
Au-liii,  47  Id.  047.  And  the  complaint  which 
secies  the  injunction  must  show  tliat  t'le  sale 
will  ere:ite  a  cloud  on  tiie  title:  /fall  v.  Th'i'<en, 
CI  Id.  .")21;  S.  C,  Id.  .520;  soonu/ira,  "Injunc- 
tion (ioiierally."  As  to  the  duty  to  allege  and 
«l.ow  that  all  taxes  properly  due  have  been 


paid  before  an  injunction  will  be  granted  to 
restrain  a  sale,  see  Gillette  v.  Denver,  4  West 
Coast  Rep.  200  (U.  S.  C.  C);  Broum  v.  Den' 
W'/-,  Id.  210(U.  S.  C.C). 

Waste. — Excavating  and  working  a  mine, 
cutting  timber  therefor,  iiy  one  tenant  in  com- 
mon is  not  waste  which  can  be  restrained  by 
injunction:  McCord  v.  UaklaudQuicksi/verMlu' 
iiKj  Co.,  04  Cal.  134,  a  valuable  decision.  But 
an  entry  ujion  land  and  di^'giug  up  a:ul  re- 
moving the  fruit-trees  thereon  is  an  injury  to 
the  inheritance  in  the  nature  of  waste,  which 
courts  of  eijuity  will  enjoin:  Sllva  v.  <!arria, 

3  West  Coast  Rep.  700;  llicki  v.  Michael,  15 
Cal.  115;  Merced  Minimj  Co.  v.  TremonI,  7  Id. 
319;  More  v.  Massiui,'  32  Id.  590.  Tearing 
down  or  destroying  demised  premises  is  waste 
which  the  landlord  may  restrain:  Davenport  v. 
Mofjoou,  3  West  Coast  Rep.  328  (Or.). 

In  an  action  to  restrain  the  commission  of 
waste,  it  must  ap|)ear  that  plaintitf  is  entitled 
to  the  reversion,  and  in  an  action  to  restrain  a 
tenant  from  removing  buildings  erected  by 
liim,  it  must  be  shown  that  tiie  security  for  the 
rent  will  be  left  inadequate:  Prrriue  v.  Mara- 
den,  34  Cal.  15;  Buckout  v.  .Swiff,  27  Id.  433. 

Irreparable  injury — The  injury  must  bo 
such  as  cannot  be  adequately  compensated  in 
damages,  or  it  must  be  irremediable,  or  leail  to 
irremediable  injury:  Middleton  v.  Franklin,  3 
Cal.  241;  W'aUlron  v.  Mar.sh,  5  Id.  120;  Gregory 
V.  J/ay,  3  III.  .334.  Continued  diversion  of 
water  is  irreparable  injury:  .See  Lyile.  Creek 
Water  Co.  v.  Perdew,  3  West  Coast  Rep.  410; 
Johnson  v.  Superior  Court,  Id.  077.  It  is  only 
in  equity  \\\x\,  future  injury  can  bo  restrained: 
Tuolumne  Water  Co.  v.  Chapman,  8  Cal.  397; 
and  tiie  diversion  of  water  must  be  continuing: 
Coker  v.  Sitnjison,  7  Id.  .341.  In  a  suit  to  test 
the  priority  of  appropriation  of  water,  an  in- 
junction to  prevent  future  injury  is  proper: 
Mariusv.  Bkknell,  10  Iil.  217.  One  of  two  or 
more  owners  of  a  water  right  may  be  enjoined 
from  diverting  more  than  of  riglit  belongs  to 
him;  iio  will  i»e  restrained:  Lorem  v.  Jacobs,  2 
West  Co  st  Rep.  722. 

One  who  conducts  vvater  into  a  stream  may 
yet  be  restrained  from  diverting  any  of  the 
water  unless  he  can  show  that  he  iliverts  no 
more  than  he  turned  into  it:  Wilcox  v.  JIausche, 

04  Cal.  401. 

An  assignee  of  a  lessor  of  chattels  may  ob- 
tain an  i.ijnnction  to  restrain  the  sIierilF  from 
selling  them  as  the  original  lessor's  goods, 
though  in  the  lessee's  possession.  The  lessee 
may  not  care  or  be  ai>le  to  protect  them: 
Fordv.  Uighy,  10  Cal.  449. 

The  mere  allegation  of  irreparable  injury  is 
not  sudicient;  the  facts  must  lie  shown:  Bur- 
nett V.  Whllcmlen,  13  Cal.  I5G;  Bc.inck  Tarn,' 
pike  Co.  v.  Yuba  Co.,  Id.  190.  Nor  will  an 
allegation  amounting  to  a  mere  statement  of 
opinion  suffice:  lloke  v.  Perilue,  02  I  i.  545. 

A  threatcne  1  entry  by  a  water  company  to 
make  excavations,  etc.,  under  proceedings  ia 
eminent  domain,  where  the  company  and  the 
shcriir  are  insolvent,  is  sudieient  to  found  aa 
injunction:  liensley  v.  Mountain  L.  W.  Co.,  13 
C.d.  312;  see  also  XcUoma  W.  d-  M.  Co.  v. 
Clarki'.i,  14  Id.  .551;  .S7o»te  v.  Com.  11.  R.  Co.,  18 
Eng.  Chan.  122;  Agar  v.  liegents  Canal  Co., 
Cooper,  77;  Bonaparte  v.  Camdoi  etc.  R.  R. 
(Jo.,  I  R.ddw.  205.  And  a  plaintiff  is  entitled 
to  an  injunction  where  the  injuries  are  calcu- 
lateil  to  destroy  the  entire  value  of  his  lauds  for 


TiOl 


§3420 


flELlEP. 


tDiv.  tV,  Part  1, 


all  useful  purposes.  W.  leased  a  lot  of  land  on 
which  lie  erected  a  hotel,  "Tho  What  Cheer 
House."  He  then  purchased  an  adjoining  lot, 
upon  which  he  erected  a  larger  buihling,  and 
occupied  both  as  "The  What  Cheer  House," 
the  principal  sign  being  removed  to  the  one 
last  built.  He  soon  after  surrendered  the  lease, 
and  continued  the  business  under  the  same 
name  in  tlie  building  on  the  lot  he  had  pur- 
chased. Defendants  having  purchased  the 
llrst-nientioued  lot  and  building,  opened  there 
a  hotel  under  the  name  of  "The  Original  What 
Cheer  House,"  painted  up  in  a  manner  calcu- 
lated to  deceive  the  public  into  the  supposition 
that  it  was  tlie  same  name.  In  an  action  by 
W.  it  was  held  that  defendant  should  be  en- 
joined:   ]Voo(lward  v.  Lazar,  21  Cal.  448. 

A  person  attempting  to  erect  a  wharf  in  the 
navigable  waters  of  the  bay  of  San  Francisco, 
under  a  contract  with  the  harbor  commission- 
ers, in  front  of  a  private  wharf,  should  be  en- 
joined if  tiie  commissioners  in  letting  the  con- 
tract have  not  substantially  followed  the  stat- 
ute giving  them  authority:  Cowell  v.  Martin ^ 
43  Cal.  GO  J. 

Where  an  administrator  conspires  with  oth- 
ers and  institutes  proceedings  in  a  probate 
court,  to  procure  the  sale  of  property  upon 
fraudulent  claims  allowed  by  the  administra- 
tor, a  court  of  equity  has  jurisdiction  to  inter- 
fere by  injunction;  but  if  the  proceedings  are 
regular  on  their  face,  and  the  probate  court 
has  jurisdiction,  the  relief  granted  will  be  con- 
fined to  an  injunction:  Larue  v.  Friedman,  49 
Cal.  278. 

Irreparable  injury  following  from  the  mere 
passage  of  an  ordinance  void  on  its  face  will 
warrant  tlie  interposition  of  equity  to  prevent 
its  attempted  enforcement:  iS".  V.  W.  W.  Co.  v. 
BarlleU,  11  Pac.  C.  L.  J.  119.  See  infra  in  this 
note,  paragraph  "Trespass." 

Ilydraidic  minin'j. — Discharging  dchriH  into 
navigable  streams  is  a  nuisance  that  will  he  en- 
joined: Woodruff  V.  North  Bloowjield  Mining 
Co.,  1  West  Coast  Rep.  183 (U.  S.  C.  C);  Peoj>le 
v.  Gold  linn  Mining  Co.,  4  Id.  511.  See  these 
cases  for  elaborate  discussions  of  the  questions 
involved. 

Injunstion,  in  action  by  creditor  to  set 
aside  conveyance. — Complaint  must  aver 
that  conveyance,  etc.,  was  made  with  intent 
to  hinder,  delay,  or  defraud  creditors.  The 
debtor's  insolvency  is  evidence  of  this:  Ilwjer 
V.  Shiiidler,  29  Cal.  59;  and  it  has  been  said 
that  insolvency  must  be  averred:  Harris  v. 
Taylor,  15  Id.  349. 

Trespass. — Anciently,  courts  cf  equity 
would  iKjt  interfere  by  injunction  in  cases  of 
trespass.  Tlie  general  rule  remains,  yet  there 
are  exceptional  cases  where  equity  will  inter- 
pose, but  a  strong  case  must  be  had.  It  will 
interpose  for  the  jiurpose  of  quieting  a  pos- 
session or  preventing  a  multiplicity  of  actions, 
or  where  the  value  of  inheritance  is  put  in 
jeopardy,  or  wliere  irreparable  misciiief  is 
threatened  in  rel  ition  to  mines,  quarries,  or 
woodlan.i,  whether  the  same  result  from  the 
nature  of  the  injury  itself  or  from  tho  insol- 
vency of  the  party  committing  it.  Mining  and 
taking  ores,  etc.:  Mrrced  Mining  Co.  v.  Fre- 
mont. 7  Cal.  320;  More  v.  Ma'<sim,  32  Id.  592. 
Cutting  trees:  Bnchalew  v.  Efffell,  5  Id.  108; 
Doug'ass  v.  Mayor  of  Placrvillp,  18  Id.  G43. 
Cutting  grnin:  Corcoran  v.  Doll,  35  Id.  470; 
West  V.  Smith,  52  Id.  322.     Generally:  More  v. 


Ord,  15  Id.  206;  TomUnfonv.  Rubio^  IG  Id.  206} 
Breunan  v.  Gadon,  17  Id.  373;  llickn  v.  Camp' 
ton,  18  Id.  209;  Leach  v.  Lay,  27  Id.  045;  Went 
V.  Walker,  2  Green  Ch.  279;  V.m  Winkle  v. 
Curtis,  Id.  422;  Kerliii  v.  West,  3  I<1.  449. 
Where  jilaintilf  sues  for  damages  for  trespass, 
and  asks  a  perpetual  injunction,  if  he  recovers 
a  verdict,  no  matter  how  small,  it  is  conclusive 
of  the  rights  of  the  parties,  and  a  perpetua/ 
injunction  should  issue.  Plaintitf  is  not  bound 
to  take  the  mere  money  value  of  trees,  for  ex- 
ample!, as  they  may  possess  a  peculiar  value  to 
him:  Daidjenspeck  v.  Greur,  18  Cal.  443.  An 
action  at  law  cannot  be  maintained  for  trespass 
when  plaintiff  is  totally  disseised,  and  defend- 
ant is  in  adverse  possession:  liaffetto  v.  Fiori, 
50  Id.  303;  Felion  v.  Justice,  51  Id.  529.  A 
fortiori  in  such  a  case  a  court  of  e{|uity  will  not 
intervene  to  restrain  the  commission  of  threat- 
ened trespasses.  In  an  action  to  enjoin  future 
trespasses  upon  land,  the  court  should  limit 
the  order  to  plaintiff's  land:  Moore  v.  Massini, 
43  Id.  889.  Costs  cannot  be  recovered  by  the 
plaintiff  when  the  court  finds  the  defendant 
not  guilty  of  the  trespasses  charged :  Lawrence 
V.  Getchelt,  3  West  Coast  Rep.  G19. 

Repeated  trespasses  are  not  of  themselves 
sufficient  to  justify  the  interference  by  injunc- 
tion; complainant  should  allege  insolvency  of 
defendant,  or  irreparable  injury  or  inadequacy 
of  money  compensation:  Mechanics'  Foundry 
V.  liyall,  62  Cal.  416. 

hisolvency  of  defendant.  — The  solvency  of  the 
defendant  who  was  about  to  construct  a  tunnel 
through  plaintiff's  land,  thereby  causing  irrep- 
arable injury,  does  not  give  any  greater  right 
to  commit  the  trespass;  the  case  belongs  to  the 
class  in  which  no  allegation  of  insolvency  la 
necessarj';  Richards  v.  Dower,  G4  Cal.  02,  cit- 
ing numerous  California  cases. 

Proceedings  in  other  courts:  See  sec. 
3423. 

Mortgage. — Injunction  to  restrain  party  in 
possession  from  waste  during  foreclosure  suit: 
Sec.  745,  Code  Civ.  Proc. 

Disobeying  order  or  process,  contempt, 
etc:  Sees.  1209,  1210,  Code  Civ.  Proc.  Disobey- 
ing injunction  is  contempt:  People  v.  Judge  of 
Placer,  27  Cal.  151.  But  acts  of  defendant  v/lio 
has  had  an  onler  modified  without  notice  to 
plaintiff,  in  violation  of  the  original  injunction, 
are  not  contempt  of  court:  Fri-mout  v.  Merced 
Mining  Co.,  9  Id.  18.  When  a  party  to  an  in- 
junction doubts  its  significance  or  extent,  he  is 
not  to  disobey  it  with  the  view  to  test  it  in  this 
particular,  but  he  should  apply  to  the  court  for  a 
modification  or  instruction:  IVells,  Fargo  tfr  Co. 
V.  Oregon  R.  <£,•  N.  Co.,  1  West  Coast  ilep.  547 
(C.  C.  Or.).  Corporations  other  than  municipal 
m.iy  be  punished  for  contempt  for  violation  of 
an  injunction:  O.  G.  C.  11.  M.  Co.  v.  Superior 
Court,  2  Id.  736.  For  proper  affidavit  to  secure 
punisiunent  for  contempt  of  one  who  violates 
an  injunction,  see  Strait  v.  Williams,  4  Id.  480 
(Nov.). 

Effect  of  appeal. — Appeal  from  judgment 
perpetually  restraining  defendant  from  tho 
commission  of  certain  acts  and  giving  tho  liond 
for  three  hundred  dollars,  besides  double  the 
amount  of  tho  money  jud.;ment,  does  not  sus- 
pend the  injunction:  JJeinlen  v.  Cross,  63 
Cal.  44. 

An  injunction  is  not  dissolved  or  superseded 
by  the  tiiking  of  an  appeal  from  tho  order 
granting  it:  Merced  Mining  Co.  v.  Fremont,  7 


C02 


TriLE  III,  Chap.  III.]  PREVENTIVE  RELIEF.  §|  S421-3423 

Cal.  130.     Nor  lias  the  appellate  court  power  will  dissolve  tlie -n-rit,  unless  prior  to  the  motion 

to  stay  the  operation  of  an  injunction  peiuliut;  tlio  complaint  is  amended  so  as  to  support  the 

an  appeal:  Strift  v.  Shfppanl,   1   West  Coast  decree:  Pfi-^Vr  v.  Hade,  51)  Cal.  '273. 
Rep.  I'.y.i;  S.  C,  Gi  Cal.  423.  Pending  an  appeal  from  an  order  refusing  to 

When  ou  appeal   the  complaint  under  which  dissolve  a  temporary  injunction,  tiie  lower  court 

an  injunction  issued  was  liehl  insufiicicnt,  tlie  has  jurisdiction  to  go  on  ami  tiy  the  case:  JJllif$ 

court  below,  ou  the  proceedings  being  remuudtd,  v,  Superior  Cuurt,  02  Cal.  543. 

8421.    Provisional  injunctions. 

Sec.  3421.  Provisional  injunctions  are  regulated  by  tbe  Code  of  Civil  Pro- 
cedure. 

Injunctions:  See  Code  Civ.  Proc,  seca.  525-5.33. 

3422.  Injunction,  when  allowed. 

Sec.  3422.  Except  w-liere  otberwise  provided  by  tbis  title,  a  final  injunction 
may  be  granted  to  prevent  tbe  breacb  of  an  obUgation  existing  in  favor  of  tbe 
applicant: 

1.  "Wbere  pecuniary  compensation  would  not  afford  adequate  relief; 

2.  Wbere  it  would  be  extremely  difficult  to  ascertain  tbe  amount  of  compen- 
Bation  wbicb  would  affoi'd  adequate  relief; 

3.  Wbere  tbe  restraint  is  necessary  to  prevent  a  multiplicily  of  judicial  pro- 
ceedings; or, 

4.  ^Vbere  tbe  obligation  arises  from  a  trust. 

Injunction  generally:  See  sec.  3420,  soui^ht  to  be  affected  lias  Tieen  determined  in 

Vesatious  l.Ligatzon. — As  to  necessity  of  the  former  suits:  A'?iOic^  v. //icAes,  12  Cal.  212. 
ehowing  that  the  matters  set  up  iu  the  suit 

3423.  h  junction,  when  not  allowed. 

Seo.  3423.     An  injunction  cannot  be  granted: 

1.  To  stay  a  judicial  proceeding  pending  at  tbo  commencement  of  tbo  action 
in  wbicb  tbe  iii junction  is  demanded,  unless  sucb  restraint  is  necessary  to  pre- 
vent a  multiplicity  of  sucb  proceedings; 

2.  To  stay  proceedings  in  a  court  of  tbe  United  States; 

3.  To  stay  proceedings  in  anotber  state  upon  a  judgment  of  a  court  of  tbat  state; 

4.  To  prevent  tbe  execution  of  a  public  statute,  by  offi.cers  of  tbe  law,  for  tbe 
public  benefit; 

5.  To  prevent  tbe  breacb  of  a  contract,  tbe  performance  of  wbicb  would  not 
be  specifically  enforced; 

G.  To  prevent  tbe  exercise  of  a  public  or  private  office,  in  a  lawful  manner, 
by  tbe  person  in  possession; 

7.  To  prevent  a  legislative  act  by  a  municipal  corporation.  [Amendment^  ap- 
proved MarcJi  30,  1874;  Amendments  1873-4,  2G7;  took  effect  Jul ij  1,  1874.] 

The  criminal  section  contained  the  follow-  iner.   Id.    GO;  Anthony  v.   Dinilap,  8   Id.   27; 

ing  sidjiUvislons,   nimibered  G  and  9  respect-  t'hlpmanw  Ilibbanl,  Id.  270;  P/irla:i  \.  Smith, 

ively,  which  were  omitted  by  the  above  amend-  Id.  521;  Oorham  v.    Toomri/,  0  LI.  77;    llock' 

ment:  i^tnrker  v.  Levy,  11  Id.  70;   Uhlj'e'ilir  y.  Levy, 

"6.  To  prevent  an  injury  to  the  person,  9  Id.  G07;  i.'rouiey  v.  Vavi",  .".7  M.  2G8.  The 
character,  or  pcr.'3onal  relations  of  the  applicant,  enforcement  of  a  decree  of  foreclosure  entered 
not  amounting  to  a  nuisance;  except  that  iu  an  in  violatiou  of  a  stipulatiou  will  not  be  en- 
action fordiviTce,  an  injunction  may  bograutetl  joined  iu  another  action;  tlie  remedy  is  in  such 
to  prevent  intenerence  with  a  wife  or  child. "  action:  L'uell  v.  S.  F.  Saviiirjs  Union,  3  Id.  51; 

"9.   Wlierc  rel.ef,  equally  eflicacious,  cau  be  and  sec  Code  Civ.  Proc,  sec.  7G,  iu  note, 

obtained  by  any  otlicr  usual  mode  of  proceed-  Lubd.   7.    To  restrain  l^G-slatiou. — Tha 

iiig,  except  in  case  of  breach  of  trust."  comniisbiouers  appended  this  note:  ^ 

Subd.  1.    Prooeedinss  in  anotlier  court.  ''  P(oj)te  v.  2/nyor  He.  of  K.    Y.,  32  Parb. 

It  is  the  settled  Liw  of  Uiis  state  that  the  prose-  35;    10   Abb.    Pr.    144;    I'oople  v.  Lonher,  23 

cution  of  a  suit  in  one  court  cannot  be  enjoined  Barb.  05;  7  Abb.  Tr.   15S;  cimiparo  People  v. 

by  anotlier  court  of   co-ordinate  jurisdiction:  Shtrtcvaut,  9  N.  Y.  2G3;  Duv'ix  v.  Mayor  etc. 

WiL-ion  V.  BaL-n;  1  West  Coast  Pep.  G.IO.    Nor  o/X.  Y.,  1  Duer.  451.     As  it  is  not  sup;  osable 

cau  the  ordirs  or  dtcrees  of  one  court  bore-  that;  any  court  would  presume  to  i  sue  an  in- 

Btrained  by  a  court  of  co-ordinate  juiisdiciiou:  junction  against  auy  action  of  tho  legislature, 

likkcLls  V.  Johnson,  S  Cal.  34;  licvu''h  v.  Cruc-  no  pa-ovisiou  is  made  against  it." 

G03 


f§  3429-3433  RELATIONS  OF  DEBTOR  AND  CREDITOR.        [Div.  IV,  Part  II, 


PART  n. 

SPECIAL  DELATIONS   OF   DEBTOR  AND   CrvEDITOR. 

Title.  I.     General  Principles 3429 

'     II.     FuACDULEXT  Instruments  and  Transfers SiiJO 

III.       AsslGNilENTS   FOR   THE   BENEFIT   OF     CREDITORS 344.9 


TITLE  I. 

GENERAL  PRINCIPLES, 
3429.    W  ho  is  a  debtor. 

Sec.  3429.  A  Jebtor,  witliin  tbe  ineaning  of  tliis  title,  is  one  -who,  by  reason 
of  an  existing  obligation,  is  or  may  become  liable  to  pay  money  to  another, 
Vt'liether  such  liability  is  certain  or  contingent. 

8430.    Who  is  a  creditor. 

Sec  3400.  A  creditor,  witliin  tlie  meaning  of  this  title,  is  one  in  whose  favor 
an  obligation  exists,  by  reason  of  which  he  is,  or  may  become,  entitled  to  the 
payment  of  money. 

3431.  Co)ifracts  of  debtor  are  valid. 

Sec  3431.  In  the  absence  of  fraud,  eveiy  contract  of  a  debtor  is  valid  against 
all  his  creditors,  existing  or  subsequent,  who  Lave  not  acquired  a  lien  on  the 
property  affected  by  such  contract. 

3432.  Paifmenft^  in  preference. 

Sec  3432.  A  debtor  may  pay  one  creditor  in  preference  to  another,  or  may 
give  to  one  creditor  security  for  the  payment  of  his  demand  in  jDreference  to 
another. 

Givingpreference  to  creditor.—"  Tliis  haa  in  fimifh  v.   J/orse,  2  Id.  541.     Dann  v.  Slan- 

been  t!iu  hivari.iMc  rule  in  tlii^  state.     In  Jiil-  J'or'ls  isalHimcil  in  l'anda:t  v.  /jiijliinjfoii,  10  id. 

iiii/i8  V.  /illliii'/t,   •!   C'al.    107,   January  Tcitn,  4.)4;    \\\Uiiijiou  \.  Sedijn-ick,  12  Id.  474;  Lllad- 

1852,  it  was  dcclai-cd  that  an  insolvent  <lc'l)tor  ir'ni  v.  (,'arrisoii,  l.'lld.  oo2;  W'hi^alon  v.  Xevillt-, 

may  prefer  certain  creditors  in  an  assig.inient  11)  Id.  4G;  ll'dlilonv,  Miirdork;  '2;$  Id.  540;  and 

of  Ilia  proiierty.     In  JJa/ia  w  Stanford-^,  10  Id.  otiiers.     So  that  this  rule  may  be  said   to  be 

269,  it  washcid  thiit  'it  is  no  part  of  the  policy  well  settled:  Maiu'ock  v.   Whiff,   20   id.   ^^08; 

of    tiie  insolvent   dubtors'  law   to   inhibit   its  Merger  v.  I/arris,  19  Id.  2SS;  see  see.  .^449,  and 

application  to  the  payment  of  one  debt  rather  note,  jio-st :  "  Coninussioners'  not*';  and  see  geu« 

than  anoliior.'     Sp.>aking,  in  the  case  referred  er.dly  a  note  to  Crawford  v.  Taylor,  20  Am. 

to,  vviili  regard  to  an  insolvent  dei)tor  disMOS-  Dee.  581. 

int;  of  his  property  in  payment  of  certain  debts  Assignments   preferring     creditor:     See 

rather   than   ollurs,   the    lirst   recited   case   is  see.  3457,  subd.  1. 
affirmed  in  Cheiu-rtj  v.  Palmer,  6  Id.  12_',  and 

3433.  Helatire  ri(/Jds  of  different  creditors. 

Sec.  3433.  Where  a  creditor  is  entitled  to  resort  to  each  of  several  funds  for 
the  satisfaction  of  his  claim,  and  another  person  has  an  interest  in  or  is  entitled 
as  a  creditor  to  resort  to  some,  but  not  tdl  of  them,  the  latter  may  require  the 
former  to  seek  satisfaction  from  those  funds  to  which  the  latter  has  no  such 
claim,  so  far  as  it  can  be  done  without  impairing  the  right  of  the  former  to 
complete  satisfaction,  and  without  doing  injustice  to  third  persons. 


TiTLK  II.] 


FRAUD  ULENT  INSTIIUMENTS  AND  TRANSFERS.  §§  3439,  344fi 


TITLE    11. 
FRAUDULENT  INSTRUMENTS  AND  TRANSFERS. 

843.9.    Transfer  with  intent  to  defraud  creditors. 

Sec.  3439.  Every  transfer  of  property  or  charge  thereon  made,  every  obliga- 
tion incurred,  and  every  judicial  proceeding  taken  with  intent  to  delay  or 
Jefraud  any  creditor  or  other  person  of  his  demands,  is  void  against  all  credi- 
tors of  the  debtor,  and  their  successors  in  interest,  and  against  any  person  upon 
•whom  the  estate  of  the  debtor  devolves  in  trust  for  the  benefit  of  others  than 
the  debtor. 

ing:  Me^itony.  Adams,  49  Id.  G20.  A  convey- 
ance to  tlio  wife  separately  l>y  (uic  who  was  in- 
debted to  tlie  coimniinity,  w  here  such  convey- 
ance was  witli  the  luisband's  consent,  was  held 
not  fraudulent  as  to  creditors  of  the  husband: 
Head  V.  Hahrn.  3  West  Coast  Uep.  loO. 

Subsequent  creditors. — In  Uom  v.  Vol- 
cano Water  Co.,  13  Cal.  02,  it  was  held  that  a 
voluntary  conveyance,  unless  fraudulent  in 
fact,  was  not  void  as  to  subsefiueut  creditors; 
though  it  was  also  there  stated  that  evidence  of 
an  intent  to  defraud  existing  ci editors  is  suffi- 
cient firlma  facie  evidence  of  fraud  as  against 
subsequent  creditors:  See  also  note  to  Jenkiiia 
V.  Clrmeiif,  14  Am.  Dec.  098,  703. 

Voluntary  couveyances  are  void  as  to  the 
existing  creditors  of  the  grantor:  Sicarlz  v. 
JIuzli'tt,  8  Cal.  1 18,  a  deed  from  father  to  soa 


"Who  entitled  to  the  protection  of  this 
sestiou.  See,  generally,  an  excellent  classifica- 
tion of  those  paities  wlio  are  protected  by  the 
rule  of  law  embodied  in  this  section  in  the  note 
to  Orrer  v.  Wrvjht,  52  Am.  Dec.  Ill,  113. 

Fraudulent  conveyance. — Every  convey- 
ance of  property  made  and  received  with  an  in- 
tent to  defraud  creditors  is  void  as  to  them: 
Swinford  v.  J'o'jcrs,  23  Cal.  203;  Laivlon  v.  Gor- 
don, 34  Id.  30;  UUhop  v.  Ilubhard,  23  Id.  514; 
Booth  v.  Clalt,  58  Id.  254.  And  the  administra- 
tor of  the  vendor — here  of  certain  horses — may 
attack  the  sale  and  may  show  tiie  deceased's  in- 
debtedness at  the  time  of  the  alleged  sale:  llar- 
riii  V.  Ilarrh,  59  Id.  02.3.  As  to  actions  by 
personal  representatives  to  set  aside  fraudulent 
conveyances  of  their  decedent,  see  Code  Civ. 
Proc,  sees.  15S9,  1590.    Such  a  conveyance  is, 


however,  goodasagainst  the  grantor  and  his  heirs    and  another.     Voluntary  conveyances  given  to 


and  devisees:  Hills  v.  S/ierwooil,  48  Cal.  380; 
Ybarra  v.  Lorenzana,  53  Id.  197;  and  also  as 
to  subsecpicnt  purchasers  from  tlie  grantor,  if 
they  are  not  bona  fide  purchasers  without  no- 
tice; Lnwton  v.  Cordon,  34  Id.  30;  Grci/oni  v. 
Ilawortit,  25  Id.  053;  Bull  v.  Ford,  4  AVe^t 
Coast  IJcp.  527;  and  property  so  conveyed  may 
be  levied  upon  and  sold  at  the  instance  of  credi- 
tors of  the  vendor:  Id.  That  the  personal  rep- 
resentative of  the  vendor  may  set  it  aside,  see 
supra.  See  Tompldnt  v.  S/>roiit,  55  Id.  31,  an 
interesting  case  in  which  the  purchaser  from 
the    fraiiilulcnt    vendee,     being    char^jcd    not 


defraud  may  be  set  aside  althougli  the  grantee 
was  innocent:  Lee  v.  Fiijfj,  37  Id.  328. 

There  is  a  distinction  lietwcen  voluntary  con- 
veyances constructively  fraudulent  and  volun- 
tary conveyances  tainted  with  actual  fraud. 
This  was  pointed  out  and  applied  in  Fitch  v. 
Corbi'tf,  04  Cal.  150,  where  t!ie  imleijtedness  to 
the  creditor,  not  being  delinitely  known,  was 
fixeil  by  the  parties  after  the  conveyance,  and 
the  creditor's  knowledge  of  such  conveyance 
and  tiiat  it  was  fraudulent  was  held  not  to 
waive  any  of  the  creditor's  riglits.  See  also  a 
consideration  of  many  phases  of  this  brancli  of 


with  actual  but  with  constructive  notice,  the  fraudulent  conveyances  in  the  note  to  Jenkins 

court  compelled  the  plaintilF  to  repay  to  such  v.  Clement,  14  Am.  Dec.  0!)S,  703. 

Eurchaser,  the  amount  of  a  mortgige  existing  Subiequent  creditors. — As  to  the  validity  of 
efore  tlie  plaintiff's  rights  accrued  and  which  voluntary  conveyances  where  subserjuent  crodi- 
the  defendant  had  (lischarged.  A  debtor's  sale  tors  are  concerned,  see  snpra,  "Snltseijuent 
of  his  bind  witli  intent  to  defraud  can  operate  Creditors,"  in  this  note;  seealsonote  to  Jeukiiia 
as  a  fraud  only  to  the  extent  of  liia  interest  in  v.  Cloinnit,  14  Am.  Dec.  098,  70."i. 
the  land:  Moure  v.  Bessc,  43  Id.  51 1.  See  also  liccital  if  coaxiderallon,  what  evidence  of  pay- 
an  example  of  fraudulent  sale,  where  it  was  ment  where  tlie  rights  of  tliinl  parlies  are  con- 
made  to  certain  creditors  who  out  of  the  pro-  cerned:  See  Gatland  v.  Jaekman,  20  Cal.  79; 
ceeds  were  to  pay  themselves  and  tlien  turn  the  Gillnn  v.  Metodf,  7  Id.  137. 
babnec  over  to  the  debtcn-,  the  scheme  being  Transfers  by  husbands  in  fraud  of  wives: 
designed  to  prevent  other  creditors  from  attach-  See  note  to  Thaijer  v.  Thayer,  3J  Am.  Dec.  218. 

3440.    Certain  trana/cra  presumed  fraudulent. 

Siic.  3440.  Every  transfer  of  personal  property,  other  than  a  thing  m  action, 
or  a  ship  or  cargo  at  sea  or  in  a  foreign  port,  and  every  lien  thereon,  other 
than  a  mortgage,  when  allowed  by  law,  and  a  contract  of  bottomry  or  respon- 
dentia, is  conclusively  presumed,  if  made  by  a  person  having  at  the  time  the 
possession  or  control  of  the  property,  and  not  accompanied  by  an  immediate 
delivery,  and  followed  by  an  actual  and  continued  change  of  possession  of  the 
things  transferred,  to  be  fraudulent  and  therefore  void,  against  those  who  are 

605 


13441 


RELATIONS  OF  DEBTOH  AND  CREDITOR.        [Div.  IV,  Part  II, 


Lis  creditors  wliile  be  remains  in  possession,  and  the  successors  in  interest  of 
sucli  creditors,  and  against  anj'  persons  on  whom  Lis  estate  devolves  in  trust 
for  the  benefit  of  others  than  himself,  and  against  purcbaacrs  or  incumbrancers 
in  good  faith  subsequent  to  the  transfer. 


"Who  may  attack  and  avoid  fraudulent 
transfer:  Heo  tlie  notes  to  Greer  v.  Wrlijht,  52 
Am.  Due.  Ill,  1 13-1 1'J;  to  .4t//Mni  V.  yurti,  and 
18  1.1.  0-22. 

Change  of  possession  is  necessary  to  the 
validity  of  a  salii  of  personalty  so  far  as  third 
persuns  are  coiicerneil,  and  this  change  of  pos- 
session must  he  immediate  and  continued: 
]Valmn  v.  Uoiljem,  53  Cal.  401;  Ilesthal  v. 
Ihjles,  Id.  02o;  Woods  v.  Uitfihij,  29  Id.  4GG; 
Cahooii  V.  Mor.hall,  23  Id.  107;  West  v.  Paul, 
22  Id.  492;  Ediairds  v.  ,Soiioma  VaUeij  Bank, 
5!)  Id.  148.  And  see  Wideman  v.  Franks,  2 
^Ve&t  Coast  Rep.  37G.  The  burden  is  on  the 
person  claiming  this  delivery  to  have  bei^n 
made  to  prove  it:  ■^(ephens  v.  Ilallslead,  58 
Cal.  19."].  A  delivery  before  levy  at  the  suit  of 
a  creilitor  of  tlie  vendor,  it  seems,  will  not 
validate  the  sale:  Edwards  v.  Sonoma  Bank, 
supra.  The  delivery  is  insufficient  where  a 
servant  of  tlie  vendor  remained  in  possession 
as  before,  anil  kejit  the  property  on  the  same 
ranch  on  which  it  was  before  the  sale — the 
ranch  being  the  property  of  the  vendor,  but 
leased  to  tlic  ventlee  on  the  sale  of  the  stock 
r.nd  hay:  drum  v.  Barney,  55  Id.  254;  see 
infra,   "Property  in  Hands  of  Third  Person." 

ISee  O'Brif'u  v.  Chamberlain,  50  Cal.  585, 
where  it  was  ludd  a  circumstance  to  be  consid- 
ered in  determining  tiie  validity  of  a  purciiase 
at  an  executimi  sale  that  the  purchaser  per- 
mitted the  property  to  continue  the  possession 
of  the  judgment  debtor. 

The  following  was  held  to  be  a  valid  sale, 
accompanied  by  iii-mediate  and  continuous 
change  of  possession:  On  the  twenty -si.xth  of 
April,  1S7G,  at  Iiis  farm  in  Sutter  county,  one 
Nelson  delivered  eighty  head  of  cattle  to  t!ie 
plaintiff,  to  whom  they  had  been  sold  on  the 
twenty-si.xth  of  the  previous  November,  who 
took  them  into  posses.sion,  but  did  not  lemove 
them,  tlie  water  tiien  being  too  high;  on  May 
1st  following  he  took  si.xty-three  of  the  stock  to 
his  farm,  about  four  miles  from  Nelson's  place, 
where  he  kept  them  until  June  IS,  1870,  when 
they  came  back  to  their  former  range,  where  the 
cows  in  the  band  were  caved  for  by  Nelson  un- 
der an  agreement  theretofore  made  with  the 
plaintiff  that  for  such  services  he  slionld  bo 
compensated.  The  defendant  justified  as  slier- 
iflF  under  an  execution  against  Nelson:  Hum- 
phreys V.  llarkey,  59  Cal.  G2G. 

See  Dernal  \!  (fllanlon,  59  Cal.  284,  where 
the  courts,  finding  that  the  sale  was  accom- 
panied by  an  innncdiate  and  continuous  change 
of  possession,  would  not  be  disturbed.  So  also 
in  Redhi'jloii  v.  Xuuaii,  GO  Id.  032,  where  the 
sale  was  to  the  plaintiff  by  the  assignee  in  in- 
solvency of  one  C,  of  the  stock  of  a  drug-store; 
C.  remained  in  possession  pending  his  negotia- 
tion to  purchase  from  the  plaintiff,  but  the 
arrangement  not  being  completed,  the  plaintilf 
took  possession  some  Lime  prior  to  the  levy  by 
the  defendant. 

The  fact  that  lessees  of  land  employ  their 


lessor  to  work  for  them  does  not  render  grain 
grown  from  the  lessees'  seed  liable  to  I  e  seized 
by  tlie  lessor's  creditors:  Ralph  v.  J^ockwood,  01 
Cal.  155. 

II.,  having  cattle  running  at  large  with  those 
of  his  tenant,  sold  them  to  tlie  plaintiff;  the  cat- 
tle were  driven  into  a  corral,  where  II.  said  to 
the  plaintiff,  "  Here  are  your  con  s  that  yoa 
bought."  Thereupon  the  jdaintiff  reijuested 
IJ.  to  take  care  of  the  cattle,  and  B.  agreeing 
to  do  so,  they  were  turned  back  into  the  pas- 
ture. This  was  decideil  to  be  an  immediate 
and  actual  change  of  possession,  valid  as  to 
creditors:  lilonjan  v.  Miller,  02  Cal.  492. 

In  tlie  following  there  was  IrUI  not  to  be  a 
sufficient  delivery  as  against  tlic  assignee  in 
insolvency  of  the  vendor:  The  subject-matter 
was  a  quantity  of  hay  in  tiie  vendor's  barn; 
tiiere  was  a  sale  and  verbal  delivery,  and  a 
kee]ier  left  by  the  purchaser  in  charge.  Some 
of  the  hay  was  removed,  but  that  in  contro- 
ver.«y  remained  in  the  barn  under  tiio  vendor's 
control  for  three  months,  wlien  attached  by  a 
creditor  of  the  latter:  AlerriU  v.  llurlburt,  63 
Cal.  -194. 

Delivery  by  the  vendor  of  hay  on  board  a 
schooner  chartered  by  the  purchaser,  to  be 
taken  to  the  latter,  is  a  sullicicnt  delivery  ac- 
companied by  change  of  possession  to  satisfy 
tlie  statute:  Schmidt  v.  Xunan,  Go  Cal.  371. 

A  sale  under  the  followingcircumstances  was 
hell  void  as  to  creditors:  Swift  sold  cattle  to 
Mary  Cowder  without  transfer  of  possession; 
he  afterward  married  her,  and  still  exercising 
control  over  the  cattle  with  lur  knowledge  and 
consent,  sold  them,  at  iicr  direction,  to  plaint- 
iff Dean,  but  by  a  bill  of  sale  made  out  in  his 
own.  Swift's,  name.  After  this  sale  to  Dean 
the  cattle  still  continued  in  Swift's  possession, 
an<l  the  debt  on  which  they  Mere  .seized  by  the 
siicriff  was  one  contracted  after  the  sale  to 
Dean  while  Swift  still  had  possession:  Dean  v, 
Walkevhorst,  04  Cal.  78. 

Chattel  mortgage. — Change  of  possession 
not  necessary;  it  must  be  recorded:  Sec.  2959, 
aiile. 

Chattel  mortgage,  -when  void  as  to  cred- 
itors and  purchasers:  Sec.  2957. 

Property  in  hands  of  third  person.— If  a 
vendor  of  goods  in  the  hands  of  a  third  person 
directs  him  to  deliver  them  to  the  purchaser, 
and  this  third  person  wrote  to  the  i)Urchaser  to 
come  and  get  them,  and  then  at  the  purchaser's 
rcMjuest  keeps  them  exclusively  for  him,  it  is  a 
sufficient  delivery  as  to  third  persons:  Wdliama 
V.  Lerch,  5G  Cal.  330. 

Judicial  sales.— Wiiether  judicial  sales  are 
within  the  purview  of  this  title  requiring 
change  of  possession,  see  Davis  v.  Drmv,  58 
Cal.  152,  where  the  question  was  not  decided. 
Consult  also  a  note  to  Boardman  v.  Kieler,  15 
Am.  Dec.  070,  071,  where  the  continuance  of 
the  possession  of  the  defendant  on  sucii  sales 
is  declared  not  to  raise  the  presumption  of 
fraud. 


8441.    Creditors  when,  can  avoid  fraudulent  transfer. 

SEa  3441.     A  creditor  can  avoid  the  act  or  obligation  of  his  debtor  for  fraud 

606 


TiTLB  in.] 


ASSIGNilEXTS  FOR  BENEFIT  OF  CrwEDITORS. 


§§  3442-3451 


only  where  the  fraud  obstructs  the  enforcerocut  by  legal  process  of  Lis  right  to 
tahe  the  property  affected  by  the  transfer  or  obligation. 

3442.    Qaeallon  of  fraud,  hoxo  determined. 

Sec.  3142.  In  all  cases  arising  under  section  twelve  hundred  and  twenty- 
Beven,  or  under  the  provisions  of  this  title,  except  as  otherwise  provided  in 
section  thirty-four  hundred  and  forty,  the  question  of  fraudulent  intent  is  one 
of  fact,  and  not  of  law;  nor  can  any  transfer  or  charge  be  adjudged  frauduh^nt 
solely  on  the  ground  that  it  was  not  made  for  a  valuable  consideration. 

Fraudulent  intent  a   qucstioa  of   fact:     of  tlie  intent:  Baih-r  v.  Collins,  12  Id.  45;  J/r- 


JiCad  V.  llnhii,  3  West  Coast  liep.  loO;  Ilarrii 
V.  Uiiniti,  SOCal.  140;  McFaddni  v.  MiU-h<^!l,  54 
Id.  G-29;  Miller  v.  Stncart,  24  Id.  502;  l.'lc/iards 
V.  Schroedcr,  10  Id.  4.^1;  McKeidi/  v.  Glad- 
uin,  lluijii  il:  Co.,  Id.  227;  Smllh  v.  Owens,  21 
Id.  11.  Statute  does  not  contemplate  conchi- 
eive  proof  of  fraudulent  intent:  \l'hite  v.  La- 
zinxk'i,  14  Id.  1G5.  This  intent  is  seldom 
capable  of  positive  proof,  but  must  be^'aUiered 
from  circunistiuices:  Pinkitt  v.  PolacL;  17  I<1. 
327.  Subsequent  acts  are  frequently  resorted 
to  to  prove  uutccedent  fraud  beiug  illustiative 


Daniel  V.  Barn,  2  Id.  32G. 

Inadequacy  of  consideratioa  is  not  per 
se  fraudulent:  Jaminon.  v.  Kinrj,  50  Cal.  ir)2. 
And  .'.s  to  Voluntary  conveyance,  see  the  note  to 
sec.  .3439,  an!e.  Inadequacy  of  price  not  a'.ouo 
snfiicient,  but  admissii)le:  Smilh  v.  Riindall,  6 
Cal.  47.  Saloon  credit,  when  presumptive  proof: 
B/lliiiijn  V.  Billini/s,  2  Id.  107.  (Jeneral  subject: 
Kin;/  V.  Davis,  34  Id.  100;  Adams  v.  lluckett, 
7  Id.  1S7:  Landecker  v.  IIou<jhia'inrf,  Id.  331. 
Frauduknt  statcmeuts  of  value:  Gij)'  rd  v.  Car- 
vill,  20  Id.  589;  McCarthy  v.  White,  21  Id.  40.>, 


TITLE  III. 
ASSIG:N'i\IENTS  FOR  THE  BENEFIT  OF  CREDITORS. 

S449.   When  debtor  viay  execute  assignment. 

Sec.  3449.  An  insolvent  debtor  may,  in  good  faitli,  execute  an  assignment  of 
property  to  one  or  more  assignees,  in  trust  for  the  satisfaction  of  his  creditors, 
in  conformity  to  the  provisions  of  this  chapter;  subject,  however,  to  the  pro- 
visions of  this  code  relative  to  trusts  and  to  fraudulent  transfers,  and  to  the 
restrictions  imposed  by  law  upon  assignments  by  special  partnerships,  by  cor- 
porations, or  by  other  specific  classes  or  persons. 

All  Act/or  the  relief  of  itisolvent  debtors,  for  the  p7-otection  of  creditors,  and  for  the  punishment  of 

faiifluliid  d(  htors. 
(Approved  April  IG,  1880;  Stats.  1880,  31G.] 

Cal.  151.     As  to  the  efTect  of  an  assignment 
generally,  see  sec.  3473. 

Assignment  bypartner. — Inaddition  tosee- 


See  this  act  in  full  in  the  appendix  to  the 
Code  < if  Civil  rrocedu:e. 

USeot  of  insolvent  lav/s  on  the  provis- 
ion lo:  a  slg.iments. — The  provisions  of  the 
Civil  Code  relative  to  assignments  for  benefit 
til  cieditors  were  not  reperdod  by  the  above  act 
of  1880:  i/echl  v.  Green,  Gl  Cal.  200;  Burroil- 


tion  2430,  above  referred  to,  see  the  restriction 

C laced  upoL  assignments  by  special  partnership 
ysection249G.  Thatone  partner  may  assign  tlie 
linn  property  for  tlie  benefit  of  creditors,  where 
het  V.  Fiseh.  03  Id.  402.    Under  the  act  of  lSr)2     such  partner  is  the  managing  partner,  see  Forhe^ 


v.  Scannell,  13  Id.  242;  but  see  sec.  2430,  subd. 
1,  ante. 

Assignments  by  corporation —Compare 
with  section  'io'y.  That  corporations  have  power 
generally  to  make  assipimeut  for  the  benefit  of 
their  creditors,  see  Burrill  ou  Assignments,  sec. 
04  et  sei^. 


a  debtor  might  assign  under  the  provisions  ot 
the  Civil  Code,  and  thereafter  proceed  iu  in- 
Bolvcucy:  Dri  shark  v.  Creditors,  Id.  187. 

Ejoiiie  gensral  principles  relative  to  as- 
Eigiimsnuj. — An  assignment  of  a  portion  of  a 
debt  does  not  nuiko  the  assignee  a  joint  owner 
€f  the  wli(de  debt,  and  he  is  not  a  necessary 
party  to  iis  recovery:   Leese  v.  hiherivood,  21 

S4I30.    Iiisulcency,  what. 

Sec.  3450.     A  debtor  is  insolvent,  within  the  meaning  of  this  title,  when  be 
is  imable  to  pay  Lis  debts  from  his  own  means,  as  they  become  due. 

84Cil.    Certain  transfers  not  affected. 

Sic.  3451.     The  provisions  of  this  title  do  not  prevent  a  person  residing  in 
another  state  or  country  from  making  there,  in  good  faith  and  without  intent 

607 


§§  3452-3459  RELAtlONS  OF  DEBTOR  AND  CREDITOR.        [Div.  IV,  pAftT  IT, 

to  evade  the  laws  of  this  state,  a  ti-ansfer  of  property  situated  witliin  it;  cor  do 

tbey  affect  the  power  of  a  person,  although  insolvent  and  within  this  stale,  to 

transfer  property  to  a  particular  creditor  for  the  purpose  of  paying  or  securing^ 

the  wliole  or  part  of  a  debt  owing  to  such  creditor,  whether  in  his  own  right  or 

otherwise. 

Assignments  in  other  states:  "A''I:rrman  ties  cited  from  California  and  ot!icr  supreme 

V.  CVo  N,  40  r>;u-b.  465;  Hall  v.  Arnold,  laid,  oourts:    Forbes  v.  Scanuell,    13  Ciil.   "242;   Ca- 

69D.     Tiiis  makes  sections  34,'>2  and  3449  per-  clicanx   v.   (hiUer,  6    Id.   514;    Mofi/iniih'tu   v. 

fectly  consistent,  and  liarmonizes  tlie  authori-  Harris,  12  Id.  245:"  Coninussiouers'  note. 

8452,    ir7ta^  debln  may  be  secured. 

Sec.  3452,  An  assignment  for  the  benefit  of  creditors  may  provide  for  any 
Bubsisting  liability  of  the  assignor  which  ho  might  lawfully  pay,  whether  abso- 
lute or  contingent. 

3450-3456.    Preferences. 

Sections  :i45;>,  3454,  3455,  and  3456  M-cre  repealed  by  act  approved  March  30,  1875;  Amend, 
ments  l!S73-4,  207;  took  effect  July  1,  1874. 

3457.    Ai'sirjument,  when  void. 

Sec.  3457.  An  assignment  for  the  benefit  of  creditors  is  void  against  any  cred- 
itor of  the  assignor  not  assenting  thereto,  in  the  following  cases: 

1.  If  it  give  a  preference  of  one  debt  or  class  of  debts  over  another; 

2.  If  it  tend  to  coerce  any  creditor  to  release  or  compromise  his  demand; 

3.  If  it  provide  for  the  payment  of  any  claim  known  to  the  assignor  to  ba 
/alse  or  fraudulent,  or  for  the  payment  of  more  upon  any  claim  than  is  knowa 
to  be  justly  due  from  the  assignor; 

4.  If  it  reserve  any  interest  in  the  assigned  property,  or  in  any  part  thereof, 
to  the  assignor,  or  for  his  benefit,  before  all  his  existing  debts  are  paid; 

5.  If  it  confer  upon  the  assignee  any  power  which,  if  exercised,  might  prevent 
or  delay  the  immediate  conversion  of  the  assigned  j^i'operty  to  the  j^urposes  of 
the  trust; 

G.  If  it  exempt  him  from  liability  for  neglect  of  duty  or  misconduct.  {Amend- 
merit,  approved  March  30,  1874;  Amendiuenls  1873-4,  2G7;  took  eff.tcl  Jalj  1, 
1874.  J 

Assi2:uinsnt,  when  void.    Subd.  1.     Prcf-  undertaken  to  gnarantee  the  payment  of  such 

erences:  yuesics.  3432.    rrefercuccs  by  special  creditors  of  the  assignor  as  consent  to  an  ex- 

partnurships:  See  sec.  249(j.  tension  of  time  or  substitution  ol  security  is 

Subd.  2.    Tending  to  coerce  creditor.—  void:  Grosc/ieu  v.  Par;e,  0  Cal.  133. 
An   asisigiunent   to   certain   parties  wiio   have 

3453.    The  inalrument  (f  assignment. 

Sec  3458.  An  assignment  for  the  benefit  of  creditors  must  be  in  writing,  sub- 
scribed by  the  assignor,  or  by  his  agent  thereto  authorized  by  writijjg.  It 
must  be  acknowledged,  or  proved  and  certified,  in  the  mode  prescribed  by  the 
chapter  on  recording  transfers  of  real  property,  and  recorded  as  required  by 
sections  thiriy-four  hundred  end  sixty-three  and  thirty-four  hundred  and  sixty- 
four;  but  recorded  in  one  county  constitutes  a  compliance  with  the  following 
section. 

3459.    Compliance  with  provisions  of  last  section  necessanj  to  validihj  oF  assign^ 

ment. 

Sec,  3459.     Unless  the  provisions  of  the  last  section  are  complied  Avith,  an 

assiguiuent  for  the  benefit  of  creditors  is  void  against  every  creditor  of  the 

assignor  not  assenting  thereto. 

A  vuhmtaiy  assignment  for  the  benefit  of  creditors  is  void  if  not  made  in  conformity  -with  iho 
ptatute:  (JlivOKr  v.  tiayx,  3  Cul.  471. 

COS 


Title  IIL] 


ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS. 


§§  3460,  3-161 


3460.  Assignee  takes ,  subject  to  rights  of  third  parties. 

Sec.  34G0.  An  assignee  for  the  benefit  of  creditors  is  not  to  be  regarded  as  a 
purchaser  for  value,  and  has  no  greater  rights  than  his  assignor  had,  in  respect 
to  things  in  action  transferred  by  the  assignment. 

3461.  Inventory  required. 

Sec.  34G1.  Within  twenty  days  after  an  assignment  is  made  for  the  benefit 
of  creditors,  the  assignor  must  make  and  file,  in  the  manner  prescribed  by  sec- 
tion thirty-four  hundred  and  sixty-three,  a  full  and  true  inventory,  showing: 

1.  All  the  creditors  of  the  assignor; 

2.  The  place  of  residence  of  each  creditor,  if  known  to  the  assignor;  or  if  not 
known,  that  fact  must  be  stated; 

3.  The  sum  owing  to  each  creditor,  and  the  nature  of  each  debt  or  liability, 
■whether  arising  on  written  security,  account,  or  otherwise; 

4.  The  true  consideration  of  the  liability'  in  each  case,  and  the  place  where  it. 
arose; 

5.  Every  existing  judgment,  mortgage,  or  other  security  for  the  payment  ofl 
any  debt  or  liability  of  the  assignor; 

G.  All  proi^erty  of  the  assignor  at  the  date  of  the  assignment,  which  is  exempt 
by  law  from  execution ;  and, 

7.  All  of  the  assignor's  property  at  the  date  of  the  assignment,  both  real  and 
personal,  of  eveiy  kind,  not  so  exempt,  and  the  incumbrances  existing  thereon, 
and  all  vouchers  and  securities  relating  thereto,  and  tha  value  of  such  property- 
according  to  the  best  knowledge  of  the  assignor. 


Making  and  filing  inventory, — The  code 
commissioners  j^'lve  tlie  following  statement  of 
the  origin  ami  clFict  of  this  section:  "  Tliis  sec- 
tion is  suhstautially  taken  from  New  York 
lau's  of  I  SCO,  c.  348,  sec.  2,  and  corresponds 
with  section  .'{  of  the  act  of  1852  of  California. 
The  cliflercnce  consists  in  this:  tlio  latter  stat- 
ute reiiuires  tiie  inventory  to  be  made  ont  and 
attachcil  to  his  petition  by  the  insolvent  instead 
of  the  assignee.  Section  4  of  the  California 
statute  re(|uirc3  the  inventory,  or,  as  it  is 
therein  <lesignatcd,  the  schedule,  to  be  verified, 
giving  the  form  of  tiie  oath.  Macli  discussion 
has  arisen  under  these  statutes  in  determining 
whetiier  a  failure  to  comply  with  their  various 
provisions  rendered  an  assignment  void,  or 
vhether  those  pi-ovisions,  or  some  of  tiiem, 
were  not  to  be  considered  as  merely  directory. 
In  California  tliese  questions  have  induced 
further  and  uioro  definite  legislation  on  the 
subject,  particularly  tlie  amendment  of  ISGO, 
on  the  subject  of  delinitely  describin  ^  debts  and 
allowing  a  discharge  from  all,  if  a  desire  is  so 
set  forth  in  the  petition,  whether  they  are  or  are 
not  particularly  described.    In  Evans  v,  Chajiin, 


tion  arose  npon  the  omission  of  the  assignor  to. 
acknowledge  and  record  the  assignment  as  re- 
quired by  the  act.  It  was  held  that  in  this- 
rcspcct  a  compliance  with  the  act  was  essential 
to  the  vali<lity  of  the  instrument.  To  the  same 
effect  is  Cook^  v.  Kelhj,  14  Id.  4GG.  I'.y  the 
decisions  ]mor  to  the  act  of  ISGO,  the  omis- 
sion to  annex  schedules  was  held  only  a  l)atlge 
of  fraud,  and  not  conclusive  evidence  of  an  in- 
tent to  defrand  tiie  creditors  of  the  assignor: 
Caiiniu<]ham  v.  Prefliom,  3  Paige,  557;  allirmed, 
11  Wend.  2!1;  Delmnare  <fc  Hudaon  Cau'd  Co, 
V.  EUhi'i,  3  Ch.  Sent.  29;  I'an  Xrst  v,  Yoe,  I 
Saudf,  Ch,  4;  S.  C,  2  N.  Y,  Leg,  Obs.  70;  Kel- 
Inrig  V,  Slniisoii,  15  I'.arb.  5G;  afhrmctl,  1 1  N,  Y. 
302;  see  also  the  later  case  of  Ilofop  v,  Xrulig, 
17  Abb.  I'r.  332.  By  a  subsequent  section  it  ia 
projiosed  to  make  botii  the  reconl  of  the  assign- 
ment and  the  filing  of  the  inventory  essential 
Tlic  inventory  is  therefore  required  to  lie  filed 
with  the  clerk  instead  of  being  delivered  to  the 
county  judge,  as  it  would  be  unjust  to  .ivoiJ 
the  assignment  on  account  of  the  judge's  omis- 
sion to  lile  it. 

"Subd.  6,     This  provision  is  new.    It  ia 


12  Abb.  I'r,  Gl,  S.  C,  20  How.  I'r,  289,  the  proper  that  the  i)r<.pei-ty  which  the  del>ti)r8celca 
question  arose  upon  the  failure  of  the  .assignor 
to  make  and  deliver  the  required  inventory  of 
his  debts  and  assets.  It  was  held  that  the  pro- 
vision of  the  statute  reciuiring  t!iat  inventory 
was  merely  directory,  and  the  assignment  was 
not  made  invalid  by  the  omission.  In  Ilarhoiir 
V.  Ei'er-<on,  IG  Aljl).  I'r.  3GG,  tiie  ouestion  arose 
upon  the  onussion  to  furnish  the  required  in- 
ventoi'y,  and  tiiu  further  omissionof  thcassignce 
to  give  tlie  bond  prescribed  by  the  act.  It  was 
Lelfil  Uiat  neither  of  these  departures  from  the 
statulo  aflfeetod  the  assignment.  'l"o  li»c  same 
cflcct  is  Juticiinl  V.  Ji'cdhhouf,  39  r.aib.  97.  I" 
Fuirchilil  V,  Owyiiiif,  IG  Abb.  I'r.  23,  tlie  qaee       3 

Civ.  CouK— 39  tO'J 


to  exempt  should  Ijcspcciiied  in  the  inventory, 
though  it  necil  not  jia-s  by  the  assignment:  See 
Cal.  Act  1852,  sec.  G,  llifcU,  par,  3SI5.  .Sched- 
ule (inventory)  vcrilied:  H'i/.so/i  v,  IJ is  (')•"/ ifom, 
32  Cal.  406.  Immaterial  objection:  /Irnrntrrv. 
Liikiiis,  19  Id.  102.  No  matter  where  ilebts 
created:  Sharp  v.  Cretl'dorK,  10  Id.  418.  lufer- 
ciiC'j  of  dishonesty  in  contracting  debts:  S<-hlos» 
V.  Ci-itl'ilort,  31  Id.  201;  Grow  v.  Crcdllurx.  Id, 
323,  Jurisdiction  substantially  shown,  how; 
L(i>,'j'vo-r  v,  l-'rcnrh,  VA  Id.  92;  .9,'a</^  v.  ('red- 
1  nrx.  10  Id.  483,  Petitioner  need  not  si'^in  pe- 
l'.;;on,  utUrr  tlm  Schedule:  Il'i^o/i  v.  Cri'ditors, 
3'J  l«i.  406;  also  as  to  formality  of  sehedulu:  Id. 


85  3462-3467  RELATIONS  OF  DEBTOR  AND  CREDITOR        [Div.  IT,  Pakt  II, 

If  schedules  do  not  set  forth  items  with  snffi-  Mistake  In  Inventory. — In  the  absence  of 

ciency,  the   remed}'   is  by  motion    to   require  evidence,  that  estimate  of  some  indebtedness 

_    proper  statement:  Bennett  v.  Creditorn,  22  Id.  was  made  too  high  designedly  the  inventory 

38;  approved  in  Wilson  v.Crcditors,H'2  Id.  4]0,  will  not  be  vitiated;   a  mere  mistake  of  com- 

and  in  Fri^dlaniler  v.  Loucks,  31  Id.  24.     Suffi-  putation  ia  uot  fatal:   Barriolhet  v.  Fuch,  63 

cienoy  of  schedule:  Mefj'^rv.  Kohlman,  8  Id.  14;  Cal.  462. 
Barrett  v.  Carney,  33  LI.  533." 

3462.    Verification  of  inventory. 

Sec.  34G2.  An  aflSdavit  must  be  made  by  every  person  executing  an  assign- 
ment for  the  benefit  of  creditors,  to  be  annexed  to  and  filed  with  the  inventory 
mentioned  in  the  last  section,  to  the  efi'ect  that  the  same  is  in  all  respects  just 
and  true,  according  to  the  best  of  such  assignor's  knowledge  and  belief. 

8463.   Recording  assignment  and  filing  inventory. 

Sec.  3403.  An  assignment  for  the  benefit  of  creditors  must  be  recorded,  and 
the  inventory  required  by  section  thirty-four  hundred  and  sixty-one  filed  with 
the  county  recorder  of  the  county  in  which  the  assignor  resided  at  the  date  of 
the  assignment;  or  if  he  did  not  then  reside  in  this  state,  with  the  recorder  of 
the  county  in  which  his  principal  place  of  business  was  then  situated;  or  if 
he  had  not  then  a  residence  or  place  of  business  in  this  state,  with  the  recorder 
.of  the  CQuuty  in  which  the  principal  part  of  the  assigned  property  was  then 
^«ituated, 

3464.  Same. 

Sec.  34:04.  If  an  assignment  for  the  benefit  of  creditors  is  executed  by  more 
than  one  assignor,  it  may  be  recorded,  and  a  copy  of  the  inventory  required  by 
fiection  thirty-four  hundred  and  sixty-one  may  be  filed  with  the  recorder  of  the 
county  in  which  any  of  the  assignors  resided  at  its  date,  or  in  which  any  of 
them,  not  then  residing  in  this  state,  had  then  a  place  of  business. 

■3465.   Efi'ect  of  omitting  to  record. 

Sec.  34G5.  An  assignment  for  the  benefit  of  creditors  is  void  against  cred- 
itors of  the  assignor,  and  against  purchasers  and  incumbrancers  in  good  faith 
and  for  value,  unless  it  is  recorded,  and  unless  the  inventory  required  by  sec- 

»tion  thirty-four  hundred  and  sixty-one  is  filed,  pursuant  to  section  thirty-four 
hundred  and  sixty-three,  within  twenty  days  after  the  date  of  the  assignment. 

'■[Amendment,  approved  February  25,  1878;  Amendments  1877-8,  90;  took  effect 
from  passage. \ 

3466.  Assignment  of  real  property. 

Sec.  3466.  "Where  an  assignment  for  the  benefit  of  creditors  embraces  real 
property,  it  is  subject  to  the  provisions  of  Article  IV.  of  the  chapter  on  record- 
.ing  transfers,  as  well  as  to  those  of  this  title. 

8467.   Bond  of  assignees. 

Sec.  3467.  "Within  thirty  days  after  the  date  of  an  assignment  for  the  benefit 
^of  creditors,  the  assignee  must  enter  into  a  bond  to  the  people  of  this  state,  in 
Buch  amount  as  may  be  fixed  by  a  judge  of  a  superior  court  of  the  county  in 
^hich  the  original  inventory  is  filed,  with  sufficient  sureties,  to  be  approved  by 
such  judge,  and  conditioned  for  the  faithful  discharge  of  the  trust  and  the  due 
-accounting  for  all  moneys  received  by  the  assignee,  which  bond  must  be  filed 
in  the  same  office  with  the  original  inventory.  [Amendment,  approved  February 
15, 1883;  Statutes  and  Amendments,  1883,  2;  took  ej'ectfrom  its  passage.] 

610 


Title  III.]  ASSIGNMENTS  FOR  BENEFIT  OF  CUEDITORS.  §§  34CS-3173 

8468.    Conditions  of  disposal  and  conversion. 

Slc.  34G8.  Until  the  inventory  and  affidavit  required  by  sections  tliirty-four 
hundred  and  sixty-one  and  tliirty-four  hundred  and  sixty-two  have  been  made 
and  tiled,  and  tbe  assignee  has  given  a  bond  as  required  by  the  last  section,  the 
assignee  for  the  benefit  of  creditors  has  no  authority  to  dispose  of  the  estate  or 
convert  it  to  the  purposes  of  the  trust. 

34G3.    Accounting  of  assignee. 

Sec.  84G9.  After  six  months  from  the  date  of  an  assignment  for  the  benefit 
of  creditors,  the  assignee  may  be  required,  on  the  petition  of  any  creditor,  to 
account  before  the  superior  court  of  the  county  where  the  accompanying  inven- 
tory was  filed  in  the  manner  prescribed  by  the  insolvent  laws  of  this  state. 
[Ameiidinertl,  approved  February  15, 1883j  Statutes  and  Amendments  1883-4;  took 
effect  from  its  passage.] 

3470.  Property  exempt. 

Si;c.  3170.  Property  exempt  from  execution,  and  insurance  upon  the  life  of 
the  assignor,  do  not  pass  to  the  assignee  by  a  general  assignment  for  the  benefit 
of  creditors,  unless  the  instrument  specially  mentions  them,  and  declares  an 
intention  that  they  should  pass  thereby. 

3471.  Compensation. 

Sec.  3471.     In  the  absence  of  any  provision  in  the  assignment  to  the  contrary, 

an  assignee  for  the  benefit  of  creditors  is  entitled  to  the  same  commissions  as 

are  allowed  by  law  to  executors  and  guardians;   but  the  assignment  cannot 

grant  more,  and  may  restrict  the  commissions  to  a  less  amount,  or  deny  them 

altogether. 

Commissions  are  to  l)e  allowed  notwith-  provision  for  disposition  of  all  the  assigned 
BtaaUiug  the  assigument  is  silent  ami  makes    property:  Menke  v.  Miller,  56  Cal.  628. 

3472.  Assignees  protected  for  acts  done  in  good  faith. 

Sec.  3472.  An  assignee  for  the  benefit  of  creditors  is  not  to  be  held  liable 
for  his  acts,  done  in  good  faith,  in  the  execution  of  the  trust,  merely  for  the 
reason  that  the  assignment  is  afterwards  adjudged  void. 

3473.  Assent  of  creditor  necessary  to  modification  of  assignment. 

Sec.  3473.     An   assignment  for   the   benefit  of  creditors,  which  has  been 

executed  and  recorded  so  as  to  transfer  the  property  to  the  assignee,  cannot 

afterwards  be  canceled  or  modified  by  the  parties  thereto,  without  the  consent 

of  every  creditor  affected  thereby. 

Effect  of  assignment  generally. — "  When  is  continued  in  existence,  that  and  this  title  must 
the  assignee  of  property  in  trust  for  creditors  be  construed  to;;ether:  this  title  as  to  the  riglita 
has  taken  possession,  the  assigiiinent  is  not  rev-  and  relatious  of  tiie  parties;  the  other  as  to  the 
ocahle:  Forbes  v.  Scannell,  13  Cal.  '288.  An  method  of  ai)plication.  To  avail  a  discharged 
asbigni-e  becomes  a  trustee  to  carry  out  the  <>b-  insolvent  debtor,  there  must  be  a  strict  compli- 
jects  (tf  the  assignment:  Lorkwood  v.  Cnnjii'/d,  ance  with  tlie  retiuiremonts  of  the  insolvent 
20  Id.  12G;  Connolly  v.  /'eck.  6  Id.  .348.  An  debtor's  law  in  procuring;  it:  //cw/iraj/s  v.  C'wn- 
assignee  is  liable  who  allows  liis  assignor  to  act  nhifjfiam,  ^9  Id.  1.J7.  And  the  records  must 
as  his  a;,'ent,  who  pockets  tlie  niumj':  Hakfr  v.  show  a  substantial  compliance  with  its  require- 
Baker,  Id.  483,  reviewed  anil  approved  in  ments  as  a  condition  precedent: "  Commission- 
Biddle.  V.   Baker,   13  LI.  .302.     Tiie  foregoing  ers'  note. 

title  is  in  good  part  taken  from  tl>e  acts  of  Cal-         That  the  assignee  acquires  only  such  rights 

iforniaand  New  York,  hereinbefore  referred  to.  in  tlie  property  assigned  as  his  assignee  had  at 

They  are  not  materially  or  substantially  differ-  the  date  of  the  assignment,  see  Gammmu  v, 

eut.  As  the  *  iusolveut  debtor's  law '  of  thid  state  llolman,  2  West  Coast  Hep.  822  (Or.). 

611 


S§  3479.  3480  NUISxVNCE.  [Div.  IV,  Part  III, 


PART  in. 

NUISANCE. 

Title    I.     General  Principles 3479 

II.     Public  Nuisances 3490 

III.     Private  Nuisances 3501 

TITLE    I. 

GENERAL  PEINCIPLES. 
8479.    Nnisance^  what. 

Sec.  3479.     Anything  wbicli  is  injurious  to  health,  or  is  indecent  or  oiTonsivo 

to  the  senses,  or  an  obstruction  to  the  free  use  of  property,  so  as  to  interfere 
with  the  comfortable  enjoyment  of  life  or  property,  or  unlawfully  obstructs  the 
free  passage  or  use,  in  the  customaiy  manner,  of  any  navigable  lake,  or  river, 
bay,  stream,  canal,  or  basin,  or  any  public  park,  square,  street,  or  highway,  is 
a  nuisance.  [Amnulmenl,  approved  Blarch  30,  1874;  Amendments  1873—4,  2G8; 
took  effect  July  1,  1874.] 

NuisEince  deOned:    See  also  Pen.   Code,  be  private  nuisance,  and  the  injured  party  may 

BBC.  .S70.  maintain  action  tlierofor:  Yolo  Vo.  v.  Citii  of  Sue- 

Instances  of  nuisances. —The  following  are  rutnni/o,  'M>  Id.  H»3;  and  see  ;io.>«/.  sec.  .■!493. 

instances  in  wliich  the  ijuestion  of  nuisance  has  Wlien  not  resp()nsil>le  for:  Browy  v.  MrAlUter, 

been  raised  in  the  courts  of  this  state  and  the  act  39  Cal.  57-'{.     Overflowing  mining  claim  by  a 

complained  of  pronounced  a  nuisance:  Erecting  dam  of  defendants  a  nuisance,  whicli  may  be 

house  in  iiighway:  Quitter  v.  Gi-ary,  I  Cal.  4G7.  abated  entirely  or  lowered  to  prevent  overflow: 

50  is  tiie  obstruction  of  a  hiyiiway  generally:  Humify  v.  Chaudln;  3  h\.  90.  A  Ic.ning  l)rick 
Learned  v.  Castle,  .S  West  Coast  Rep.  l.")4;  L.  T,  wall  projecting  over  the  house  of  an  ailjoining 
Co.  V.  .S*.  <fc  IF.  ir.  /(".  Co.,  41  Cal.  502;  Aram  v.  proprietor  so  as  to  prevent  the  raising  and  re- 
Sr hal If II herrjer,  41  Id.  449;  lUanc  v.  Knin/>L-p,  pairing  of  the  liouse  is  a  nuisance,  although  tha 
291(1.  1.j6;  Droion  v.  Kent  field.  Id.  .589.  Case  of  wall  is  safe  and  secure:  Meyer  v.  M<-tzli^r,  Til 
a  hooin  across  a  navigable  river:  Oeorije  v.  N.  Id.  142.  See  the  subject  of  nuisance  al)!y  con- 
P,  7'.  Co.,  50  Id.  589;  Seven/  v.  C.  /*.  A*.  A*.,  sidered  in   the  cclcl)rated  debris  case:    Wood- 

51  Id.  194;  Schtilte  v.  N.  J',  t.  Co.,  50  Id.  592;  riif  v.  North  Bloomjirld  Miniuf]  Co.,  1  West 
JJi'/ley  V.  Ximan,  5.3  Id.  40."i.  Diversion  of  Coast  Rep.  183  (U.  S.  C.  C);  so  also  People 
watercourse  a  private  nuisance:  Tuolumne  IV.  v.  Gold  Hun  D.  .fr  M.  Co.,  4  Id.  511.  The 
Co.  V.  ('h'ljtman,  '.i  Id.  392;  /'arke  v.  Ktlhnm,  principle  is  tliat  a  person  cannot  use  his  prop- 
8  M.  77;  B.  li.  A  A.  Co.  v.  Bolea  ( Xo.  2),  24  erty  even  in  a  lawful  business  so  as  seriously  to 
Id.  .'}.")9.  And  it  may  be  l)oth  a  public  and  pri-  interfere  with  another  in  the  enjoyment  of 
vate  nuisance:  Yolo  v.  Sacramento,  3(3  Id.  193.  liis  property:  Tiuhner  v.  Cal.  St.  A'.  A'.  Co., 
To  turn  aside  a  useful  element  from  or  a  destruc-  Id.  529,  the  cable-railroad  case,  witcre  the 
tivconeon  premises:  /'rt/'^«' V.  A'(7/tf/m,  S  Id.  77.  company  were  compelled  to  build  a  higher 
^Vllethur  wharf  public  nuisance  a  question  smoke-stack  so  as  to  carry  off  the  soot.  See 
of  fact:  People  v.  J)an!son,  30  Id.  379.  Toll-  /y/oo?«  v.  .Srt/» /VaHr/.sr",  1  West  Coast  Hep.  5G4, 
gate  on  i)ublic  way:  L'l  Dorado  Co.  v.  Davidnoii,  for  city's  liability  for  .allowing  refuse  matter  to 
30  Id.  520.  House  on  lire:  Snroeco  v.  diary,  flow  from  its  liospital  upon  tlio  plaintiff's  land. 
3  Id.  09.  Burden  of  proof  of  nuisance  in  a  Power  of  muiiijipal  corporation  to  leg. 
street- railroad  case  regarding  switches:  Carson  islate  asainst  nuisances:  See  Ex  parte  C'cwi- 
V.  CeiUiol  R.  11.  Co.,  35  Id.  325.     Public  may  nello,  02  Cal.  538. 

3480.    Pifhlic  nnii^ance. 

Sec.  3480.  A  piil)lic  nuisance  is  one  which  affects  at  the  same  time  an  entire 
community  or  neighborhood,  or  any  considerable  number  of  persons,  although 
the  extent  of  the  annoyance  or  damage  inflicted  upon  individuals  may  be 
unequal.  \Ametidiueul,  approred  March  30,  1874;  Amendmentti  1873-4,  2C8;  took 
€  fed  July    1,  1874. 1 

Tlie    amendatory    act   of   March    .30.    1874;     sections  of  the  Civil  Code  are  taken,  contained 
Amendments     1873-4,     ISI-'Jdd,     from    wiiicii     tliree  additional  sections,  relating  to  its  effect, 
mast  of   the    foregoing   amendments  and    new     as  follows: 
Effert  of  nmendalory  wt  of  Jllarrh  ,>(J,  IS74. 

Sec.  280.  All  provisions  of  law  inconsistent  with  the  provisions  of  this  net  are  hereby 
repealetl,  but  no  riglits  acquired  or  piocecdings  taken  under  the  provisions  repealed  shall  h& 

C12 


Title  II.]  PUBLIC  NUISANCES.  §§  3481-3491 

impaired  or  in  any  manner  affected  by  tliis  repeal;  and  whenever  a  limitation  or  period  of  time 
is  prescribed  by  such  repealed  provisions  for  acquiring  a  riglit  or  barring  a  remedy,  or  for  any 
other  ].ur|iose,  lias  begun  to  run  before  this  act  tulies  ettect,  and  the  same  or  any  other  limita- 
tion is  prescribed  by  this  act,  the  time  of  limitation  which  shall  have  run  when  this  a/ct  takes 
effect  siiall  be  deemed  part  (if  the  time  prescribed  by  this  act. 
Effect  of  avietidalory  act  as  to  other  artu  poMxeil  at  session  of  1871-3. 

8ec.  "287.  Witii  relation  to  the  laws  passed  at  the  present  session  of  the  legislature,  this  act 
must  be  construed  as  though  it  had  been  passed  at  the  first  day  of  tlie  prudent  session;  if  the 
provisions  of  any  law  passed  at  the  piesent  session  of  the  legislature  coutiaveneor  are  incuusist- 
cnt  with  the  provisions  of  this  act,  the  provisions  of  sucii  law  must  prevail. 

iSe(  .  2S8.  This  act  shall  take  effect  on  the  iirst  day  of  July,  one  thousand  eight  hundred  and 
eeventy-four. 

Abating  public  nuisance:  Sees.  3404,  "495.        Private  action  for  publio  nuisance;  See 

Public  nuisance  not  legalized  by  lapse    sec.  3493,  in  note, 
of  time:  Sec.  3490. 

3481.    Private  naisavce. 

Sec.  3481.    Every  nuisance  not  included  in  the  definition  of  the  last  section 

is  private.- 

3432.    What  is  not  deemed  a  nuiaance. 

Sec.  3482.  Nothing  which  is  done  or  maintained  under  the  express- authority 
of  a  statute  can  be  deemed  a  nuisance. 

Wliere  one  seeks  to  recover  «lamages  for  an     from  the  complaint  that  there  was  such  non- 
alleged    nuisance  arising  from    non-comity   to     comity:  Davia  v.  Sacrameiiio,  59  Cal.  596. 
the  statute  authorizing  the  act,  it  must  appear 

3483.  Successive  owners. 

Sec.  3483.  Every  successive  owner  of  property  who  neglects  to  ahate  a  con- 
tinuing nuisance  upon,  or  in  the  use  of,  such  property,  created  by  a  former 
owner,  is  liable  therefor  in  the  same  manner  as  the  one  who  first  created  it. 

Liability  of  successive  ov/nsrs.  — A  party  of  its  hurtful  cliaracter:  Or'ajsliy  v.  Clfdr  Lale 
who  continues  a  nuisance,  liut  is  not  the  origi-  Co.,  40  Cal.  39(3.  As  to  liat)ility  of  the  original 
nal  creator  of  it,  is  entitled  to  notice  that  it  is  creator  of  the  nuisance,  and  his  successor  in 
a  nuisance,  and  a  roquest  must  be  made  that  it  interest  in  the  land  on  whicli  it  is  creatu-d,  see 
be  abated  before  an  action  will  lie  for  that  pur-  the  note  to  Plmner  v.  Harper,  14  Am.  Dec.  33G- 
pose,  unless  it  appear  that  he  had  knowledge     341. 

3484.  Abatement  does  not  preclude  action. 

Sec  3484.  The  abatement  of  a  nuisance  does  not  prejudice  the  right  of  any 
person  to  recover  damages  for  its  past  existence. 

Abatement  pending  action  does  not  pre-     ceeilings:  Tuehner  v.  California  Si,  Jl.  i?.,  4 
elude  tlie  plaintili' from  recovering  his  damages     West  Coast  Kep.  529. 
incurred  inior  to  the  commencement  of  the  pro- 


TITLE  IT. 
PUBLIC  NUISANCES. 

3490.  Lapse  of  time  does  not  legalize. 

Sec  34'JO.     No  lapse  of  time  can  legalize  a  i^ublic  nuisance,  amounting  to  an 

actual  obstruction  of  public  right. 

Public  nuisance  deSned:  See  sec.  ,3480.  ilf.  Co.,  1  West  Coast  Rep.  183  (U.  S.  C.  C), 

Del:»y  in  bringing  a.;tion  for  private  nui-     for  a  satisfactory  discuasiou  of  the  queatioul 

sance:  See    Woodruff  v.  North  Bloomjiell  O.     suggesteil  by  this  topic. 

3491.  lii'medies  arjainst  public  nuisance. 

Sec  3401.     The  remedies  against  a  public  nuisance  are: 

1.  Indictment  or  iufonnation; 

2.  A  civil  action;  or, 

3.  Al'ateinent.     [Amendment,  approved  March  2,  18S0;  Amendments  1880,  ] 
{I»an.  ed.  12);  took  effect  immedlalclij.\ 

C13 


5§  3492,  3493 


NUISAXCE. 


[Div.  IV,  Part  HI, 


3492.  IIoio  regulatpd. 

Sec.  3402.  The  remedy  by  indictment  or  information  is  regulated  by  the 
Penal  Code.  [Amendment ,  approved  March  2,  1880;  Amendminis  1880  {Ban. 
ed.  12);  took  e^ect  immediately. \ 

See  Pen.  Code,  sees.  370-374. 

3493.  Action. 

Sec.  3493.  A  private  person  may  maintain  an  action  for  a  public  nuisance, 
if  it  is  specially  injurious  to  himself,  but  not  otherwise. 


Private  aotion  for  nuisance  generally. — 
Actions  to  abate  nuisances  are  equitable  in  their 
character  and  within  the  jurisdiction  of  courts 
that  have  cognizance  of  causes  in  equity: 
People  V.  Moore,  20  Cal.  429.  But  under  the 
new  constitution,  art.  G,  sec.  5,  the  jurisdiction 
is  conferred  upon  superior  courts  to  abate 
nuisances  as  a  special,  not  as  an  equitaljle,  tri- 
bunal; and  if  the  case  is  tried  with  a  jury,  a 
verdict  for  damages  includes  a  finding  for  the 
plaintiff  in  all  the  issues,  and  entitles  him  to 
an  order  abating  the  nuisance:  Learned  v.  Cas- 
tle, 3  West  Coast  Hep.  154;  and  so  Blood  v. 
Li'jhf,  31  CaL  115. 

The  statute  does  not  take  away  any  common- 
law  remedy  in  the  abatement  of  nuisances;  but 
see  sec.  20,  a7ite;  Stiles  v.  Laird,  5  Cal.  122. 
Actions  for  diversion  of  the  water  of  ditches 
are  in  the  nature  of  actions  for  the  abatement 
of  nuisances,  and  may  be  maintained  by  ten- 
ants in  common  in  a  joint  action.  A  ditch  to 
carry  off  water  rightfully  flowing  to  a  mining 
claim  is  as  much  a  nuisance  as  a  dam  to  flood  it: 
Parke  v.  Kilhnm,  8  LI.  77.  A  plaintiff  has  a 
right  to  an  injunction  to  stay  a  threatened  in- 
jury to  his  right  of  way.  It  is  the  only  remedy 
adequate  to  his  case:  Tuolumne  IF.  Oo.  v.  Ch'ip- 
man.  Id.  302;  Buckaleio  v.  Estell,  5  Id.  108; 
Pam.mi/  v.  Chandler,  3  Id.  90;  Kitlle  v.  P/eiffer, 
22  Id.  491.  But  an  action  cannot  be  main- 
tained to  abate  a  nuisance  till  it  actually  be- 
come such:  Bfor  River  etc.  Co.  v.  Boles,  24  Id. 
3G2.  In  obstructing  a  highway,  whether  it  is 
a  highway  by  water  or  by  land,  the  rights  of 
the  person  whose  use  of  it  is  obstructed  are 
t!ie  same:  Blanc  v.  Klicmpke,  29  Id.  158.  But 
the  highway  must  be  improved,  capable  of 
being  used  as  a  street  by  the  public,  before  a 
party  can  complain  that  an  obstruction  is  a 
nuisance:  Oeor>ie  v.  X.  P.  T.  Co.,  50  Id.  589; 
SchiiUe  V.  JV.  P.  T.  Co.,  Id.  592.  Before  the 
codes,  it  was  held  that  a  mere  purpresture  upon 
an  arm  or  creek  of  the  sea  was  not  a  nuisance 
80  that  a  court  of  equity  could  decree  its  de- 
struction: People  V.  Vavidxo)),  30  Id.  387;  but 
a  toll-gate  upon  a  highway,  belonging  to  the 
state  or  the  people,  was  held  a  n:iisauce,  and 
miglit  be  abated  as  such:  El  Dorado  Co.  v. 
Davison,  Id.  524. 

A  public  nuisance  may,  as  the  Civil  Code  in- 
dicates, be  a  private  nuisance,  and  a  person 
injured  thereby  may  have  his  action:  Yolo  Co. 
V.  Sacramento,  33  Id.  195;  Blanc  v.  Klumphe, 
29  l\.  156.  But  he  can  only  recover  if  he  has 
Buffered  damage  peculiar  to  himself,  and  differ- 
ing in  kind  from  the  )iublic  injury:  .frirris  v. 
S.  C  V.  Co.,  52  Id.  4.!8;  Paipte  v.  Kinhy,  54 
Id.  0.32;  Severy  v.  C.  P.  /?.  /I.,  51  Id.  194;  and 
Bee  in/rn.  A  party  who  is  not  the  original 
creator  of  a  nuisance  is  entitled  to  a  notice 
that  it  is  a  nuisance,  and  a  reqviest  that  it  may 
be  abated  before  an  aotion  will  lie  for  that  pur- 


pose, unless  it  appears  that  he  had  knowl- 
edge of  the  hurtful  character  of  it.  This  rule 
is  not  inconsistent  with  the  authorities  that 
every  continuance  of  a  nuisance  is  a  new  nui- 
sance: OrigHhi/w  Clear  Lake  W.  Co.,  40  Id.  408, 
407.  A  complaint  in  an  action  to  abate  a  dam 
erected  across  a  canon  must  allege  that  the 
plaintifiFs  are  possessed  of  the  right  to  use  the 
canon  for  the  purpose  of  conveying  water,  etc. : 
Stone  v.  Bumpns,  Id.  430.  In  an  action  to 
abate  as  a  nuisance  a  boom  across  a  navigable 
river,  made  to  intercept  sawdogs  floated  tlown 
in  time  of  high  water,  and  for  damages,  the 
plaintiff  must  show  that  the  obstruction  was 
unreasonable:  Brown  v.  Kentjield,  50  Id.  129. 
A  railroad  company  is  not  responsible  for  the 
acts  of  its  employees  in  creating  a  nuisance 
by  using  a  culvert  under  the  railroad  near 
plaintiff's  residence  as  a  privy:  Hopkins  v.  W. 
P.  R.  R.  Co.,  Id.  191.  Until  a  street  in 
San  Francisco,  covered  by  the  waters  of  the 
bay,  is  made  capable  of  being  used  by  the 
public  as  a  street,  the  owner  of  a  lot  fronting 
on  it  cannot  maintain  an  action  for  damages 
caused  by  placing  an  obstruction  in  the  street, 
and  for  an  abatement  of  the  nuisance:  George 
v.  N.  P.  T.  Co.,  Id.  589.  But  this  is  other- 
wise where  the  street  is  in  a  condition  to  be 
used  as  such.  It  is  not  material  by  whom  the 
street  waa  improved:  Shulte  v.  N.  P.  T.  Co., 
Id.  592. 

The  facts  that  the  parties  who  bring  an  ac- 
tion to  abate  a  nuisance  caused  by  obstructing 
a  public  road  own  land  fronting  on  the  road, 
and  have  no  other  means  of  access,  do  not 
show  such  special  damage  to  the  plaintiffs  in 
addition  to  that  sustained  by  the  public  as  en- 
ables them  to  maintain  the  action:  Aram  v. 
Schallenberger,  41  Cal.  449.  The  special  dam- 
age must  be  such  as  might  legitimately  flow 
from  the  nuisance,  and  must  of  course  be 
specially  pleaded:  L.  T.  Co.  v.  .S'.  W.  W.  R. 
Co. ,  Id.  5(j4.  A  party  may  sue  to  abate  a  nui- 
sance and  recover  damages:  Will  v.  Sinkwitz, 
Id.  594.  In  an  action  to  abate  a  nuisance, 
damages  are  only  an  incident  to  the  action,  and 
the  failure  to  recover  tiiem  does  not  affect  the 
question  of  cost:  Hudson  v.  Doyle,  6  Cal.  101; 
CouHwrhjht  v,  B.  R.  d:  A.  Co.,  3D  Id.  57G.  As 
to  the  right  of  one  owner  of  mining  rights  to 
tap  a  stream  above  another,  sec  Correa  v.  FriC' 
taS  42  Id  342. 

Private  action  for  public  nuisance. — To 
entitle  an  individual  to  maintain  a  private  ac- 
tion for  public  nuisance,  it  is  necessary  that 
such  nuisance  should  have  resulted  in  special 
injury  to  him:  Payne  v.  McKiidey,  51  Cal. 
5:52;  Bifjlei/  v.  Nnnan,  .53  Id.  403;  Jarvis  v. 
S.  C.  V.  Co.,  .52  Id.  438;  Sever?/  v.  C.  P.  R.  R., 
51  1.1.  194;  Srhidte  v.  iV.  P.  f.  Co.,  50  Id.  592; 
that  is,  tlie  p'aint  iff  must  suffer  damages  differ- 
ent in  kind  from  those  sustained  by  the  publio 


G14 


TiTLK  III.]  PRIVATE  NUISANCES.  §§  3494-3509 

at  large:  Biijley  v,   Kunan,  supra;  Payne  v.  Same  citations;  see,  however,  note  to  Stft^ony. 

McKiitley,  stijira;  Aram  v.  Schatlcnberger,  41  Faxon,  31  Am.  Dec.   123,  134,  where  this  doc- 

Cal.  449;  Gruf^hy  v.  Clear  Lake   W.  Co.,  40  Id.  trine  ia  said  to  be  opposed  to  the  wei^jht  of  au- 

390.     Mere  difference  in  degree  is  not  sufficient:  thority. 

3494.  Abatement,  by  whom. 

Sec.  3494.  A  public  nuisance  may  be  abated  by  any  pnblicr  body  or  officer 
authorized  thereto  by  law. 

3495.  How  abated. 

Sec.  3495.  Any  person  may  abate  a  public  nuisance  which  is  specially  inju- 
rious to  him  by  removing,  or  if  necessary  destroying,  the  thing  which  consti- 
tutes the  same,  without  committing  a  breach  of  the  peace,  or  doing  unnecessary 
injuiy. 

Abatement  of   public    nuisance. — Very  nuisance,    without    regard    to    the    que8tio^ 

early  in  the  history  of  tliis  state,  in  Cunter  v.  whetlier  it  was  immediately  injurious   to  hitn 

Oeary,  1  C'al.  402,  a  distinction  was  drawn  as  or  not;  wliereas  a  private  nuisance  cnuid  b« 

follows:  any  individual  could  abate  a  public  abated  only  by  him  who  was  the  sufferer. 


TITLE  III. 

PEIVATE  NUISANCES, 

8501.    Rem-edieR  for  private  nuisance. 

Sec  3501.     The  remedies  against  a  private  nuisance  are: 

1.  A  civil  action;  or, 

2.  Abatement. 

Civil  action  for  nuisance:  See,  generally,  sec.  3493. 

'3502.    Abatement,  tvhen  allowed. 

Sec  3502.     A  person  injured  by  a  pinvate  nuisance  may  abate  it  by  removing, 

or  if  necessary  destroying,  the  thing  which  constitutes  the  nuisance,  without 

committing  a  breach  of  the  peace,  or  doing  unnecessary  injury 

Abatement  of  private  nuisance  v/ithout        Abating  public  nuisance:  See  sees.  3494. 
action:  See  tlie  note  to  Gates  v.  Bliucoe,  20     3495, 
Ani.  Dec.  443-443. 

3503.    When  notice  is  required. 

Sec  3503.     "Where  a  private  nuisance  results  from  a  mere  omission  of  the 

wrong-doer,  and  cannot  be  abated  without  entering  upon  his  land,  reasonable 

notice  must  be  given  to  him  before  entering  to  abate  it. 

Notice  to  one  who  merely  continues  a    v.  Harper,  14  Am.  Dec.  33S-340,  and  see  note 
nuisance,  to  remove  it:  See  the  note  to  f  lamer    to  the  next  section. 


PART  lY. 
MAXIMS  OF  JURISPRUDENCE. 

The  notes  of  the  commissioners  have  been  ims  can  be  found  in  Broom's  Legal  Maxims,  and^ 
preserved  in  tliis  part.  Further  illustration  volumes  of  the  United  States  Digest  tor  18S3, 
of  the  application  and  meaning  of  these  max-     1SS4,  title  "Maxims." 

3509.  Sec  3509.  The  maxims  of  jurisprudence  hereinafter  set  forth  are 
intended  not  to  qualify  any  of  tho  foregoing  provisions  of  this  code,  but  to  aid 
in  their  just  ajipli cation. 

615 


i§  3510-3515 


MAXtMS  OF  JURISPRUDENCE. 


[Div.  IV, 


The  iTiaxinis  givien  in  the  text  <ire  not  nieavit 
to  be  mere  triilislatitins  of  tlie  Latin  originals 
mentioned  in  tlie  notes,  Imt  siieli  an  exj. luna- 
tion of  tlieiii  as  is  supposed  to  l)e  ^no:^t  just  and 
consonant  with  our  lej^'ul  system.  It  Avill  be 
observed  tliat  tiiose  maxims  only  are  presented 
■which  ha\e  a  general  api)lieution.  Siieh  max- 
ims as   Cuveai  emptor,    Qui  J'acU  /*«;*  alium, 


etc.,  which  apply  to  sales  and  agency  more 
particularly,  and  otl\ers  of  a  like  ciiariicter,  ar6 
omitted.  In  resjiect  to  such,  it  is  thought  bet- 
ter to  state  the  proiier  rules  completely  in  the 
chapter  of  the  code  relating  to  the  particular 
topic,  than  to  refer  to  this  part  for  any  adui* 
tioaai  principles. 


Sec.  3510.     "Wlieu  the  reason  of  a  rule  ceases,  so  sliould  the  rule 


3510. 

itself. 

Cc3£5ante  rations legis  cessat  ipsa  lex:  Co. 
Lit.  70  b;  branch's  Maxims,  GS;  liirhards  v. 
J/'Uthi'r,  1  1  >arn.  &  Aid.  .3,3.  The  rule  of  the  Eng- 
lish l:nv  tiiat  a  legacy  from  a  paj'ent  to  a  child  is 
presumed  to  be  satisfied  by  a  subsequent  gift 
from  the  parent,  says  Judge  Duer,  is  one  which 
sprang  from  and  was  sustained  by  the  peculiar 
policy  of  the  English  law  of  real  jjroperty  and 
Ruccession,  and  is  plainly  inconsistent  with  the 
Bpirit  of  the  American  law  upon  those  subjects. 
"The  reasons  of  the  doctrine  with  lis  have 
ceased  to  exist,  and  if  there  is  any  truth  or  ob- 
ligatory force  in  the  maxim,  CfMante  rations 
ees.int  i])sa  lex,  the  doctrine  has  perished  with 
them:"  Lain/ilon  v.  Aator's  Ex'rn,  3  Ducr,  557. 
Again,  the  rule  that  the  opinion  of  witness  is 
not  admissible  is  "based  w\>on  the  presumption 
tliat  the  tribunal  before  which  evidence  is  given 
is  as  capable  of  forming  a  judgmenton  the  facts 
fls  the  witness.  When  circumstances  rebut 
this  presumption,  tiie  rule  itself  naturally 
ceases,     t'esnantc  ratione,  etc.     Hence  it  is  that 


on  questions  of  science,  skill,  ttade,  or  others 
of  the  like  kind,  persons  of  skill,  or  ex])ert3, 
are  permitted  to  give  thtir  opinions:"  Lew'Ut 
V.  Barley,  9  N.  Y.  375.  The  practice  of  grant- 
ing injunctions  to  stay  legal  pro.eedings  was 
founded  upon  the  inability  of  the  courts  (jf  law 
to  do  full  justice.  The  union  of  law  and  equity, 
uiuler  the  Code  of  Civil  Procedure,  has  removed 
the  ground  of  the  rule,  and  such  injunctions 
are  not  now  to  be  allowed:  Grunt  v.  Quick,  5 
8a!ulf.  Gl'2.  For  further  iilustrat'ons,  see  Parks 
V.  Jackso)!,  11  Wend.  442,  436;  Vcut,  Rensselaer 
V.  S^nllh,  '27  Barb.  104,  148;  Berley  v.  Rum- 
pai'her,  5  Duer,  183,  186;  Tate  v.  Jordan,  3 
Abb.  Pr.  .392,  394.  See  also,  as  to  application 
of  the  maxim,  Pickett  v.  Johnson,  8  Cal.  34; 
Bay/ey  v.  Eaton,  10  Iil.  143;  Bubcock  v.  Middle- 
ton,  20  Id.  653;  Connolly  v.  Goodwin  et  ah,  5 
Id.  221;  Cranilall  X.Woods,  8  Id.  143;  Bosicell 
V.  Laird,  Id.  476;  Bog(/s  v.  Merced  MiniiKj  Co., 
14  Id.  340;  United  States  v.  McCarthy,  18  Fed. 
Rep.  89;  Bovard  v.  Kettring,  101  Pa.  iit.  185. 

3511.     Sec.  3511.     "Where  the  reason  is   the  same,  the  rule  should  be  the 
same. 


Ubi  eadeni  ratio,  ibi  idem  jus:  Co.  Lit.  10 
a;  Branch's  Maxims,  64.  Thus  il;  is  was  long  tiie 
settled  rule  respecting  a  writing  under  seal, 
that  a  material  alteration  of  it  ijy  the  obligee 
rendered  the  instrument  %'oid:  Piijot's  Case,  11 
Co.  Rep.  27;  David.son  v.  Cooper,  11  Jlee.  & 
W.  799.  The  obvious  reason  of  the  rule  ex- 
isted as  well  in  the  case  of  an  instrument  not 
eealed,  and  the  rule  was  therefore  appl'ed  to 
bills  of  exchange  and  promissory  notes:  Master 
V.  Miller,  4  T.  R.  320;  2  II.  Black.  140,  and 


other  mercantile  contracts,  not  negotiable: 
Powell  V.  Divett,  13  East,  29;  Davidson  v. 
Cooper,  12  Mee.  &  \V.  778.  So  in  Hood  v. 
Manhattan  Fire  Ins.  Co.,  11  N.  Y.  532,  543, 
the  law  of  fixtures  was  referred  to,  upon  the 
strengtii  of  this  maxim,  for  the  purpose  of  de- 
termining whether  certain  timljer  intended  to 
form  part  of  a  vessel  was  covered  by  an  insur- 
ance upon  the  vessel:  See  also  Graves  v.  Ber^ 
dan,  26  Id.  498-500. 


3512.    Sec.  3515.    One  raust  not  change  his  purpose  to  the  injury  of  another. 


Nemo  potest  mutare  consilium  suum  in 
alterius  injuriam:  Dig.  50,  17,  75.  The  spirit 
and  app'ication  of  this  maxim  are  examined  by 
Chancellor  Kent,  in  Bush  v.  Van  Kleeck,  7 
■Johns.  54,  with  special  reference  to  retroactive 
statutes.     In  Bonati  v.  Welsch,  24  N.  Y.  157- 


162,  it  was  held,  partly  upon  the  authority  of 
this  maxim,  that  a  husbanil's  change  of  domi- 
cile did  not  affsct  the  rights  of  property  which 
his  wife  acquired  at  her  marriage  by  the  law 
of  the  place  where  they  were  married 


3513.  Sec.  3513.  Any  one  may  waive  the  advantage  of  a  law  intended  solely 
for  his  benefit.  But  a  law  established  for  a  public  reason  cannot  be  contravened 
by  a  private  agreement. 


Quilibet  potest  renunclare  juri  pro  se 
Introducto:  Branch's  Maxims,  309.  Compare 
modus  et  couventio  vincent  kijem.  Upon  this 
principle,  one  may  omit  to  plead  his  infancy  or 
other  (lisaltility,  or  the  statute  of  limitations, 
■or  time  of  prescription,  in  avoidance  of  his  ob- 
ligations, or  may  waive  notice  of  the  dishonor 
by  a  prior  party  of  a  bill  or  note:  Conkllng  v. 
King,  10  N.  V.  446;  and  see  Back  v.  Bark,  IS 
Id.  341.  {^ne  may  also,  upon  the  same  prin- 
ciple, waive  a  statutory  right:  Tornhs  v.  UocJies- 
terdiS.  R.  R.  Co.,  5  Barb.  83;  Budw.  Trustees 


etc.,  3  X.  Y.  197;  or  a  constitutional  provision 
made  for  his  benefit,  as  for  example,  the  right 
of  trial  by  jury:  Lee  v.  Tillotson,  24  Wend. 
3.37;  People  v,  Ahirray,  5  Hdl,  468;  Baker  v. 
Braman,  6  Id.  48;  anil  see  Pioplew  Van  Rens- 
selan;  9  N.  Y.  333;  People  v.  Rnthlnui,  21 
Wend.  542;  Atkins  v.  Ki. man,  20  Id.  241-248; 
United  States  v.  WywiaU,^^  Id.  16-20;  Stephens 
V.  People,  19  N.  Y.  549;  Welhy.  N.  Y.  Cent, 
n.  R.  Co.,  24  Id.  181,  194;  Aden  v.  Jaqnish,  21 
Vv'end.  628-631 ;  Baker  v.  Iloag  7  Barb.  1 13-1 17; 
Allen  V.  Merchants'  Bank,  22  Wend.  215,  233. 


616 


>ABT  IV.3 


MAXIMS  OF  JURISPr.UDENCE. 


§§  3514-3516 


Privatorum  conventio  juri  publico  non 
derogat:  l^ir.  10,  17,  4.5. 

Jus  publicuna  privatorum  pactu  mutari 
non  potest:  Papiuiau.  Though  individuals 
may  g(juerul!y  v.aive  provisiou3  which  the  law 
prescribes  for  tljeir  advantage  or  protection, 
yet  their  private  compacts  cannot  be  permitted 
either  to  render  that  just  or  sufficient  between 
themselves  vvhich  the  law  declares  csscniially 
unjust  or  insufficient;  or  to  injure  the  lc;_'al 
rights  of  otiiers,  or  to  impair  the  integrity  of  a 
rule,  the  strigt  maintenance  of  which  is  neces- 
sary to  tlie  couuiion  welfare.  The  princii)le  of 
this  maxim  has  forbidden,  in  our  law,  marriage- 
brocage  bonds;  undue  restraint  of  trade:  See 

8514.     Skc.  3514.     One  must  so  use 
the  rights  of  another. 
Sic  ut-re  tuo  ut  alienum  non  laedas:  9  Co. 

Rcp.GO;  I5rani.h's  Maxims,  IGO;  see  also  Plattw 
Jo/titsoii,  1.5  Johns.  213,  215;  Baptist  Church  of 
Schenectady  v.  S'-hfuectady d:  Troy  It.  R.  Co.,  5 
Barb.  8.1;  Lasala  v.  llolbrook,  4  Paige,  71; 
Van  Iloetidi  v.  Coventry,  10  Barb.  521;  E'Hs  v. 
Duncan,  21  Id.  20.'];  Ferrand  v.  Marshall,  Id. 
420,  422;  Carhart  v.  Auburn  Gas-lvjht  Co.,  22 
Id.  307,  310;  Ailda  v.  Western  li.  U.  Co.,  20 
N.  Y.  382;  Roiiers  v.  Parlcer,  31  Barb.  454. 
"Tlie  jirinciiile  of  this  maxim  is  a  sound  and 
benclicial  one.  It  implies  what  the  law  as- 
serts, that  all  men  have  equal  rights  before  the 
law:"  Carhart  v.  Auburn  Ois  Co.,  22  Id. 
307.  Though  the  proprietor  of  land  bordering 
upon  a  stream  may  use  the  water  for  his  own 
purposes,  he  may  not  in  any  way  infringe  upon 
the  light.^  of  those  above  him,  as  for  example, 
by  checking  the  Ilow  of  the  stream;  nor  the 
rights  of  those  behiw  him  by  diminishing  the 
volume  or  injuring  tlie  quality  of  the  water. 
The  maxim  is  very  frequently  invoked  and  ap- 
plied in  cases  of  nuisance;  for  thougli  a  man 
may  generally  use  his  own  land  as  he  pleases, 
he  may  not  erect  uj>on  it  a  nuisance  to  the  an- 
noyance of  his  neighbor:  J  Jay  v.  Cohoe.'<C'>.,'2'^. 
Y.  101 ;  llnncii  v.  Cn/ufja  tfr  .S'.  IL  Co.,  12  Id.  401. 
"Acts  may  be  haimless  in  themselves  so  long 
as  they  iiijuie  no  one;  but  the  conseciuences  of 
acts  often  give  character  to  the  acts  them- 
selves:" Van  /'lit  v.  McGraw,  4  Id.  43. 
The  rule  is  not,  however,  to  be  applied  with- 

3515.     Sec.  3515. 

Volenti  non  Gt  injuria:  Bracton,  fc«l.  18; 
Branch's  Maxims,  127;  Ilartfield  v.  liO/ier,  21 
Wend.  020;  Conrin  v.  N.  Y.  cfc  A'.  7.'.  Co.,  U] 
N.  Y.  49;  LyooH  v.  Tallmadije,  I  Johns.  C  1. 
187;  Palmer  v.  Lord,  6  Iil.  101;  Lemino:i  v. 
Peop'e.  20  N.  Y.  028;  Robinaon  v.  Mu<xi-r,  78 
Mo.  1.53. 

Nulla  injuria  est  quae  in  volsntem  Gat: 
Dig.,  pp.  47,  10,1,5.  See  application  in  Cilifor- 
niadeeisions;  McMillan  v.  Visher,  14  0^1.210; 
Brown  V,  .iyri's,  33  Id.  529.  A  husband  who 
couniv'-s  at  the  adultery  of  his  wile  has  no  ri  .lit 
to  a  divorce  <>!i  the  ground  of  her  inlidelity: 
Forster  v.  Fortler,  I  Hagg.  Con.  144.     A  fatiier 


sec.  833;  or  of  m(\rriage:  See  sec.  836;  a  sea- 
man's insurance  of  his  wages;  an  agreement  to 
waive  a  claim  arising  from  tlie  fraud  of  one  or 
two  contracting  parties:  See  sec.  828;  a  mort- 
gagor's covenant  with  a  mortgagee  not  to  en- 
force his  equitable  right  of  rcdeuiption;  an 
agreement  to  waive  the  benefit  of  tiie  exeniJD- 
tion  laws,  etc. :  See  Kneetle  v.  Sewco/nb,  22  N. 
Y.  219;  Mann  v.  Herkimer  County  Ins.  Co.,  4 
Hill,  192.  So  in  a  capital  case  a  prisoner  can- 
not waive  trial  by  a  jury  of  twehc  men:  Can- 
cemi  V.  People,  18  N.  Y.  128;  7  Abb.  Pr.  271. 
The  following  are  other  illustrations:  A  party 
may  waive  written  notice  of  overruling  of  a 
demuiTer:  Barron  v.  Ueleval,  53  Cal.  95,  98. 

his  own  rights  as  not  to  iufriugo  upon 

out  limitation.  It  extends  to  all  damages  for 
which  the  law  gives  redress,  but  no  further. 
If  applied  literally,  it  would  deprive  us,  to  a 
great  extent,  of  the  legitimate  u  e  of  our  prop- 
erty, and  impair,  if  not  destroy,  its  value: 
Ileidz  V.  Lou'j  Island  R.  R.  Co.,  13  Barb.  658; 
Pixhy  V.  C'urke,  2  Id.  272.  In  general  a  man 
may  use  his  property  as  he  pleases  for  all  pur- 
poses to  which  such  property  is  usually  ap- 
plied, Avidiout  being  answerable  for  conse- 
quences, if  he  exercises  proper  cure  and  skill  to 
prevent  any  unnecessary  injury  to  others: 
fisher  V.  Clark,  41  Id.  329.  No  one  is  liable 
in  damages  for  the  reasonable  exercise  of  a 
right,  when  it  is  accompanied  by  a  cautious 
regard  for  the  rights  of  others,  if  the  act  is  not 
done  naliciously,  and  when  there  is  no  just 
ground  for  the  charge  of  negligence  or  nnskill- 
fulness:  Paidon  v.  Holland,  17  Johns.  02;  see 
also  application  of  maxim  in  Ten.'y  v.  Miners' 
Ditch  Co.,  7  Cal.  337;  Boswcll  v.  Laird,  8  Id. 
47G;  O'-rke  V.  Cal.  -Steam  Nav.  Co.,  Old.  254; 
JJarvey  v.  Chiton,  11  Id.  116;  Loijan  v.  Dris- 
col/,  19  Id.  626;  Phrznix  W.  Co.  v.  Fletcher,  23 
Id.  483;  Uill  V.  Smith,  27  Id.  482;  Carpentier 
v.  Webster,  27  Iil.  534;  Frria  v.  Knijtc,  28  Id. 
314;  Fanjiy  v.  Scales,  29  Id.  244;  Gibson  v. 
Perthta,  23  Id.  316;  Richardson  v.  A'/er,  34  Id. 
73:  Xer.  Water  Co.  v.  Pou-ell,  Id.  121;  Wood- 
riijfv.  North  Bhomjield  Gravel  Mlnin'f  Co.,  13 
Fed.  Hep.  599;  Laicton  v.  GiV.",  90  N.  C.  381; 
Donnelly  v.  Deckti-,  58  Wis.  469. 

He  who  consents  to  an  act  is  not  wi'onged  by  it. 

who  connives  at  hia  daughter's  seduction  can- 
not recover  dam-iges  therefor:  Seaj'ir  v.  Sliger- 
land,  2  Cai.  219.  One  who  consents  to  the 
stowage  of  his  goods  upon  the  deck  of  a  ship 
can  maintain  no  action  for  a  wrongful  stowage 
of  tiiem:  Gonl I  v.  Oliver,  2  Seott  N.  R.  257. 
One  who  voluntarily  pays  a  just  <Ieljt  contracted 
during  his  infancy,  or  barrcil  by  the  statute  of 
liinitatii)!i3,  has  no  right  tt  rc[)aymcnt  of  the 
money:  See  /Jates  v.  A^.  Y.  Ins.  f 'o.,  3  Johns. 
Cas.  210.  This  rule  is  only  ap  tiled  wJiere  t!ie 
party  had  freedom  in  exercising  his  wiil:  Har- 
mony V.  Bin'jham,  12  N.  Y.  109;  see  also 
Moulton  V.  Bennett,  18  Wend.  588. 

3516.     Sec.  351G.     Acquiescence  in  error  takes  away  the  right  of  objecting 
to  it. 

Consensus  tollit  errorum,  is  a  maxim  of 

the  c()mm<;n  law  ;;i)il  the  dictate  of  eomnion 
Esiise:  Roijcrs  v.  Cru<jer,  7  Johns.  611.  Upon 
the  principle  of  this  a)axim  rests  au  iuiportant 


branch  of  the  doctrine  of  waiver.  An  irregn- 
Lirity  in  the  service  of  a  paper  in  a  cause  is 
generally  waived  by  retaining  i:nd  acting  upon 
it:  Georijia  Lumber  Co.  v.  Slromj,  3  llow.  Pr. 


C17 


5§  3517-3524 


MAXIMS  OF  JURISPRUDENCE. 


[Div.  IV, 


246.  A  voluntary  and  general  appearance  in 
an  action  is  a  waiver  of  all  defects  in  tlie  sum- 
mons or  other  ])rocess:  Webb  v.  Mott,  G  Id.  440, 
and  Yates  v.  Rassell,  17  Johns.  4G1;  see  further 


illustrations  of  the  rule  in  WatTdnit  v.  Weaver; 
10  Id.  107,  108;  Farriwjton  v.  UamUin,  12 
Wend.  212,  213. 


3517.     Sec.  3517. 
Kullus    conunodiim 
Injuria  sua  propria:     See  application  in  Cali- 


No  one  can  take  advantage  of  his  own  wrong, 
capere    potest    de     avoid  the  deed  as  between  himself  and  his  ac- 


complice: Jackson  v.  Garnsey,  10  Johns.  189; 
Safford  v.  Wyckoff,  4  Hill,  457;  see  Moore  v. 
Livimjdon,  28  Barb.  54.3;  14  How.  Pr.  11; 
Ford  V.  Harrington,  10  N.  Y.  285.  So  when 
performance  of  a  condition  is  rendered  impos- 
sible by  the  act  of  the  obligee  the  obligor  incurs 
no  penalty:  Com.  Dig.,  Condition,  D,  1;  see 
sec.  727. 


fornia  decisions:  McMillan  \.  Richards,  9  Cul. 
301;  Carppntier  v.  Williamson,  25  Id.  158. 
This  is  a  rule  of  such  binding  force  as  to  be 
held  obligatory  against  the  wrong-doer,  even 
as  between  himself  and  one  cognizant  or  par- 
ticipant of  the  wrong.  If  one,  for  the  purpose 
of  defrauding  his  creditors,  conveys  his  prop- 
erty to  anotlier,  he  cannot  set  up  the  fraud  to 

3518.  Sec.  3518.  He  who  has  fraudulently  dispossessed  himself  of  a  thing 
may  be  treated  as  if  he  still  had  possession. 

Qui  dolo  desierit  possidere,  pro  possi-  maintained  against  a  defendant  who  wrongfully 
dente  damuatur. — On  this  principle  an  action  parted  with  their  possession  before  the  action 
for  the  possession  of  speciflc  chattels  may  be    was  brought:  Nichols  v.  Michael,  23  N.  Y.  267. 

3519.  Sec.  3519.  He  who  can  and  does  not  forbid  that  which  is  done  on  his 
behalf  is  deemed  to  have  bidden  it. 

Semper  qui  uon  prohibet  pro  se  iutervenire  mandare  creditur. 

3520.  Sec.  3520.    No  one  should  suffer  by  the  act  of  another. 


bound  by  acts  or  conduct  of  others  to  which, 
neither  in  fact  nor  in  law,  he  was  party  or  privy. 
It  is  illustrated  by  the  rules  respecting  decla- 
rations and  private  memoranda  of  third  persons, 
and  respecting  the  effect  of  jud^jments  to  whictt 
one  is  altogether  a  stranger:  Broom's  JMaxima, 
432. 


Res  inter  alios  acta  alter!  nocere  non 
debet:  See  GeLston  v.  Jloyt,  13  Johus.  301,  381; 
Sivect  V.  Barney,  ~3  N.  Y.  335,  341;  Langdon 
v.  A.-tor,  10  Id.  9,  31.  The  principle  of '  this 
perhaps  most  inijiortant  and  useful  of  the  max- 
ims relating  to  the  law  of  evidence,  forbids  in 
general  (for  necessity  has  introduced  some  ex- 
ceptions to  the  rule)   that  any  one   shall   be 

3521.  Sec  3521.    He  who  takes  the 
Qui  sentit  commodum,  sentire  debet  et 

onus:  I'aine  v.  Lonney,  0  Abb.  Pr.  100;  /Vosf 
V.  Saralo't  I  Ins.  Co.,  5  Denio,  158;  BartlHl  v. 
Crozier,  17  Johns.  453;  Ileiidrirks  v.  Judah,  2 
Cai.  25,  28;  United  Ins.  Co.  v.  Piobinson,  Id. 
280,  288;  Matter  of  Mayor  etc.  of  New  York,  1 1 
Johns.  771.  One  who  takes  an  estate  in  land, 
and  enjoys  the  benefits  resulting  from  his  title, 
must  bear  the  burdens  of  the  incumbrances 
upon  the  land  and  of  the  covenants  that  run 

3522.  Sec.  3522.    One  who  grants  a  thing  is  presumed  to  grant  also  what- 
ever is  essential  to  its  use. 

Cuicunqus  aliqui3  quid   ooncedit,   cen 


benefit  must  bear  the  burden. 
witii  it:  Denman  v.  Prince,  40  Barb.  213;  Vet' 
planck  v.  Wright,  23  Wend.  500;  PrieMly  v. 
Foidds,  2  Scott  N.  R.  225.  The  right  of  a  part- 
ner to  share  the  profit  of  the  partnership 
business  is  justly  coupled  with  a  correspond- 
ing liability  for  its  debts:  See  application  of 
mixini:  lloUaiulv.  City  of  San  Francisco,  7  Cal. 
3J7;  Simpson  v.  Eckstein,  22  Id.  5t>5;  People  v. 
McCreary,  34  Id.  457. 


cedsre  vidatur  et  id  sine  quo  res  ipsa  esse 
non  potssl;:  .See  Slerrl-ker  v.  Dlc/:iii-oii,  9 
Barb.  518;  Troup  v.  J/urlbitt,  10  Id.  359;  A's- 
mond  v.  Chen;  15  Cal.  141;  People  v.  Ilirks,  15 
Barb.  100;  Seymour  v.  Canandaigna  etc.  R.  IL 
Co.,  25  Id.  310.     Tlie  grant  of  a  piece  of  land, 


surrounded  by  other  land  of  the  grantor,  grants 
also  by  implication  tlie  right  ol  a  convenient 
way  over  such  other  land.  The  grant  of  a  cor- 
porate franchise  implies  a  jiiant  to  make  by- 
laws, and  to  exercise  all  other  powers  which 
are  necessary  for  effectuating  the  object  of  tha 
charter. 


3523.     Sec.  3523.    For  every  wrong  there  is  a  remedy. 


Ubi  jus,  ibi  remedium:  Johnstone  v.  Sut- 
ton, 1  T.  ii.  312;  L'oberts  v.  Landecker,  9  Cal. 
203;  Ph(enlx  W.  Co.  v.  Fletcher,  23  Id.  483; 
mil  V.  Smith,  27  Id.  483.  Every  wrongful  in- 
vasion of  a  right  imports  injury  and  damage, 
though  there  lie  no  pecuniary  loss,  and  entitles 
the  person  injured  to  redress:  Ashby  v.  White, 


2  Ld.  Raym.  953;  and  see  Green  v.  Thidson 
River  R.  R.  Co.,  28  Barb.  9.  10.  By  reference 
to  tliis  principle  an  action  for  slander  to  title 
of  personal  property  has  recently  lieen  sus- 
tained: Like  V.  McKinstry,  41  Barb.  ISO;  /'yan 
v.  Ryan,  01  Tex.  475;  and  see  Ponieroy's  discus- 
sion of  this  maxim  in  1  Eq.,  sees.  4'2'.i  et  seq. 


3524.     Sec.  3524.   Beween  those  who  are  equally  in  the  right,  or  equally  ia 
the  wrong,  the  law  does  not  interpose. 

CIS 


Part  IV.] 


MAXIMS  OF  JURISPRUDENCE. 


^§  3525-3528 


In  aequall  jure  melior  est  conflitio  possi- 
dentis: Ontario  Bnn/c  v.  IVvrthiinj.'oii,  12  Weud. 
601;  McLaiujIdin  v.  W'aile,  9  Cow.  674;  Oraons 
T.  Veliiplaiiii',  14  Johns.  lo9. 

In  pari  delicto,  poUor  est  conditio  de- 
fendentis:  See  Peck  v.  Btcrr,  10  N.  Y.  204; 
Trary  v.  Tnhnaqe,  14  Id.  102,  181,  21G;  Can- 
dee  V.  Lonl,  2  Id.  2G9,  27G;  Meceh  v.  Stoner, 
19  Id.  28;  Dennett  v.  American  Art  Union,  5 
Sandf.  Gol ;  Srftroeppel  v.  Corning,  5  Denio,  '241 ; 
IfelUs  V.  Clark,  20  Wend,  28-  4  Hill,  43G: 
Perkins  v.  Sncarie,  15  Id.  415;  Wes'fall  v.  Jonen, 
2.1  Bail).  12;  Vischrr  v.  Yaten,  11  Johns.  2G. 
In  case  of  illegal  contracts,  says  Story,  or  in 
those  in  which  cine  party  has  placed  property 
in  the  hands  of  another  for  illegal  purposes,  as 

3525.  Seo.  3525.  Between  rights  o 
Qui  prior  est  in  tempore,  potior  est  in  jure: 
See  Miur  v.  Schnick,  3  Hill,  228;  Poillon  v. 
Martin,  1  Sandf.  Ch.  578;  Watson  v.  Le  Roto,  6 
Barb.  485;  McCVudork  v.  Bryde.n,  5  Cal.  101; 
Irwin V.  Philip-'^,  Id.  147;  Cahoon  v.  Levy.  G  Id. 
297;  //ow  V.  Baker,  Id.  493;  Tenny  v.  Miners' 
Ditch  Co.,  7  Id.  340;  Craiidall  v.Woods,  8  Id. 
143;  /mac  v.  Swi/l,  10  Id.  72;  Wolfe  v.  St. 
Louis  Ind.  W,  Co.,  Id.  542;  Esmond  v.  Chew, 
15  Id.  140;  Logan. y.  DrixcoU,  19  Id.  025; 
Phaiiix  X.  Co.  V.  Fletcher,  23  Id.  483;  Lick  v. 
Madden,  25  Id.  209;  IliU  v.  Smith,  27  Id.  483; 
Weav<r\-.  Toof/ood,  1  Barb.  241;  Lynch  v.  fnji. 
Co.,  IS  Wend.  253,  210;  Berry  v.  AJut.  Ins.  Co., 


for  smngudiiig,  if  the  latter  refuses  to  account 
fur  the;  proceeds,  and  frauduleiuly  or  unjustly 
w'itldiohls  them,  the  former  must  bear  his  loss, 
for  in  pari  delicto,  etc.:  E(\.  Jur.,  sees.  G1,29S; 
Stiiry  on  Agency,  sec.  198.  So  when  there  is 
equal  equity,  the  defendant  lias  as  strong  a 
claim  to  the  protection  of  a  court  of  eciuity  for 
his  title  as  the  plaintiff  has  to  its  assistance  in 
order  to  assert  his  title,  and  the  couit  will  not' 
interpose  on  either  side.  But  where  there  is  a 
great  preponderance  of  wrong  u[)()n  one  side, 
as  in  case  of  usury,  or  where  one  party  violates 
a  confidence  as  well  as  a  provision  of  law,  the 
injured  party,  althougi>  not  free  from  blame, 
may  liave  redress:  I'ord  v.  llarrinyton,  16 
N.  Y.  285. 

tberwise  equal,  the  earliest  is  preferred. 

2  Johns.  Ch.  GOS;  Truscott  v.  Kinfj,  6  Barb.  351; 
Sri/mour  v.  Wilson,  IG  Barb.  291);  Warner  v. 
Biakewan,  36  Id.  520;  llertell  v.  Bo<jert,  10 
Paige,  GO;  Embree  v.  Jlanua,  5  Johns.  103; 
Wilkes  V.  Harper,  2  Barb.  Ch.  354;  Cherry  v. 
Monroe,  Id.  618.  This  principle  makes  the 
foundation  of  all  original  titles  to  land,  both 
by  private  and  by  public  law;  the  first  occu- 
p  int  acquires  the  first  riglit.  The  tna.xim  ap- 
plies also  in  cases  of  mortgages,  attachments, 
executions,  and  other  liens  attaciiing  upon  prop- 
erty, either  by  the  agreement  of  parties,  or  by 
the  operation  of  law.  See  1  Pomeroy'a  Eq., 
sees.  413  et  seq. 


3526.     Sec.  352G.     No  man  is  responsible  for  that  which  no  man  can  control. 


Actus  Dei  facit  zieminl  injuriam. — This  is 
a  maxim  of  the  common  law  with  regard  to  ob- 
ligations created  merely  by  operation  of  law; 
but  it  has  not  been  considered  applicable  to 
contracts:  Tompkins  v.  Dudley,  25  N.  Y.  170; 
Harmony  v.  Banjham,  12  Id.  99;  Brown  v. 
Eoyal  Ins  Co.,  1  El.  &  El.  853.     The  commis- 


sioners have  proposed,  however,  to  extend  this 
principles  to  contracts:  See  sec.  727.  But  when 
human  agency  is  combined  with  tlie  act  of  God, 
and  neglect  occurs  in  the  employment  of  the 
agency,  liability  for  damage  results.  This  was 
said  in  Chidester  v.  Consol.  Ditch  Co.,  59  Cal. 
197. 


3527.     Seo.  3527.     The  law  helps  the  vigilant,  before  those  who  sleep  on 
their  risfhts. 


Vigilantibus  non  dormientibus  leges  sub- 
veniunt:  Toole  v.  Cook,  IG  How.  Pr.  1.34;  El- 
litj  v.  Naijlee,  9  Cal.  G93;  Peabody  v.  Phelps,  Id. 
218;  McMillan  v.  Richards,  Id.  400;  English  v, 


nite  periods,  after  the  expiration  of  which  the 
law  will  refuse  its  aid,  however  clear  may  be 
the  right  of  tlie  party  claiming  it,  or  tlie  wrong 
of  his  opponent:   See,  for  other  illustrations, 


Supervisors  of  Sncramento  County,  19  Id.  178;     Smcdburg  v.  More,  26  Wend.  2;)8,  247;  JIazul 


Pimenlal  v.  City  of  San  Francisco,  21  Id.  354; 
Davis  v.  Davis,  26  Id.  42.  Thus  the  law  may 
deny  relief  to  one  who  has  long  and  negligently 
delayed  to  Jilc  a  bill  for  specific  performance: 
Milirood  v  Earl  of  Thanet,  5  Ves.  720;  Alley  v. 
Duc/iamps.  13  Id.  228.  So  in  the  spirit  of  this 
maxim  the  statute  of  limitations  prescribes  dcQ- 


V.  Dunham,  1  Hall,  055,  658;  Bnien  v.  Home, 
2  Barb.  58G,  595;  Ta>ilor  v.  Fleet,  4  I.l.  95,  103; 
B'lich  V.  Sheldon,  14  Id.  66,  71;  Mnnn  v.  Wor- 
rail,  16  Id.  221,  232;  Voorhea  v.  Seymour,  26 
Id.  569,  583;  Fanninq  v.  Dunham,  5  Johns.  Ch. 
122,  145;  Story's  Eq.  Jur.,  sec.  529.  See  1 
Pomeroy's  Eq.,  sees.  418,  419. 


3523.     Sec.  3528.     The  law  respects  form  less  than  substance. 

Francis's  Maxims,  No.  13.  On  this  princii)le  ages  which,  by  a  strict  interpretation  of  a  con- 
the  law  grants  iclief  to  one  wlio  has  omitted  tract,  a  party  thereto  might  recover,  if  it  op- 
to  perforin  an  obligation  at  a  time  specilied  by  erates  oppressively:  Skinner  v.  White,  17  Johns, 
the  contract,  when  it  is  evident  that  punctmd     357 


performance  was  not  an  essential  element  of 
the  agreement:  Adams's  Eq.  88.  So  it  declares 
Bufficient  certain  defective  executions  of  pow- 
ers, ar.J  the  want  of  a  seal,  or  of  witm  sses,  or 
of  a  signature,  or  defects  in  the  limitations  of 
the  estate,  or  interest,  may  sometimes  be  aided. 
In  the  same  spirit  the  law  upholds,  in  certain 
cases  the  <lefcctive  performance  of  conditions; 
Story's  Eq.  Jur.,  sec.  97;  Spaukling  v.  J/allen- 
beck,  39  Barb.  78;  Clide  v.  Ilnblson,  2  Johns.  595, 
614;  Popham  v.  Bampjield,  1  Vcrn.  79;  I^ran- 
cis's  Maxims,  CO.     So  it  will  mitigate  the  dam- 


Qui  haeret  in  litera  haeret  in  cortioe,  is  a 

maxim  to  the  same  effect,  often  citeil  with  ap- 
proval: Wadsworth  v.  Tliomas,  7  l'>art).  449; 
Ai/le.ticorth  v.  Brown,  10  Id.  107;  Wa/ervliet 
Turnpike  Co.  v.  McKcan,  G  Hill,  t)20;  Leuvitt 
V.  Fi-'-her,  4  Dner,  23;  Langdoii  v.  A^lor,  3  Id. 
601;  J'lekxon  v.  Hoiisel,  17  Johns.  284;  Pillow 
v.  Bnshnell,  4  How.  I'r.  12. 

So  where  a  party  was  in  court  and  had  ac- 
tual notice  of  overruling  of  his  demurrer,  and 
ashed  time  to  answer,  written  notice  was  held 
unnecessary:  Barron  v.  Delevul,  58  Cal.  95,  98. 


619 


§§  3529-3534 


MAXIMS  OF  JURISPRUDENCE. 


[Dnr.  IV, 


8529.  Sec.  3529.  That  wbich  ought  to  have  been  done  is  to  be  regarded 
as  done,  in  favor  of  him  to  whom,  and  against  him  from  whom,  performance  is 
due. 


Tlius  an  agreement  for  a  valuable  consider- 
ation will  bo  treutPtl  as  actually  execiiteil  from 
the  perioil  when  it  ought  to  have  been  per- 
formed in  favor  of  a  person  entitled  to  insist  on 
its  performance.  On  tliis  principle,  money 
agreed  or  Jtvisod  to  be  laid  out  in  land  vill  be 
treateil  as  real  estate;  and  land  contracted  or 


devised  to  be  sold  will  be  treated  as  money: 
Story's  Eq.  Jur.,  sec.  G4  g;  Adams's  Eq.  74. 
See,  for  other  illustrations  of  the  maxim,  Biirch 
V.  Newbury,  1  Barb.  C48,  G64;  //ashronck  v. 
Paddock,  1  Id.  G35;  Crahj  v.  Li-die,  3  Wiieat. 
5G3;  liosevelt  v.  Bank  of  Niagara,  Hopk.  5S3. 


3530.     Sec.  3530. 

if  it  did  not  exist. 

De  nou  apparentibus  et  de  non  existen- 
tibus  eadeni  est  ratio;  Johnson  v.  Slai/<j,  2 
Jolins.  .")I9.  Thus  upon  a  special  verdict  a 
couit  will  not  assume  a  fact  not  stated  in  it, 
nor  draw  inferences  of  facta  necessary  for  the 
deterniination  of  the  case,  from  otiier  state- 
ments tlierein:  Tmterd  v.  ChrLs/y,  12  Mee.  & 
W.  31G;  Jenks  v.  JJallet,  1  Cai.  GO.     If  a  notice 


That  which  does  not  appear  to  exist  is  to  be  regarded  as 


of  dishonor  is  good  upon  its  face,  the  court  will 
not  entertain  an  objection  founded  upon  the 
possible  existence  of  another  note,  not  shown 
to  exist:  Votings  v.  Lee,  12  N.  Y.  554;  Cook  v. 
Litrhfiefd,  5  Sandf.  3.30,  340, 

Quod  uoa  apparet  non  est:  Yates  v.  Peo 
pie,  U  Johns.  505. 


3531.     Sec.  3531.     The  law  never  requires  impossibilities. 


Les  uon  cogit  ad  imposslbilia:  Co.  Lit. 
231  b;  Schroeder  v.  Hudson  liiv.  R.  R.  Co.,  5 
Duer,  G2;  Aloseley  v.  Vt.  Mat.  F.  Ins.  Co.,  55 
Vt.  1.12. 

Impotsntia  escusat  legem:  Jarhon  v. 
Selllcu,  S  Johns.  271;  Jackson  v.  Joliwon,  5 
Cow.  103.  If  an  estate  is  granted  upon  a  con- 
dition subsequent  which  is  essentially  impossi- 


ble, the  condition  is  void,  and  the  estate  is  ab- 
solute: 2  Bla.  Coin.  186.  If  [lerformunce  of 
the  condition  of  a  bond  ia  rendered  impossibla 
by  the  act  of  the  obligee,  the  olfligor  is  excused: 
J/olmes  v.  Guppy,  3  Mee.  &  \V.  :SSO.  But,  ex- 
cept in  certain  special  cases,  the  law  docs  not 
excuse  the  non-performance  of  impossibilities 
which  one  has  expressly  undertaken  to  perform. 


3532.     Sec.  3532.     The  law  neither  does  nor  requires  idle  acts. 


Lex  noa  cogit  ad  vana  seu  inutilia:  Bool 
V.  Ffdnklhi,  .S  .lohns.  210. 

Lex  nil  frustra  facit— It  is  a  settled  princi- 
ple, says  C  iiancellor  Kent,  that  a  court  will 
not  imdertake  to  exercise  a  power  unless  it  can 
exercise  it  to  some  purpose:  JIuntoti/ton  v. 
NicoH,  3  Johns.  5'.)8.  It  will,  for  exauiide,  re- 
fuse a  writ  of  mandamus,  if  it  is  manifest  tliat 
it  must  be  vain  and  fruitless,  or  canuot  have  a 
benehcial effect :  P'O/ile v. Supervisors o/'in-ene, 
12  Barb.  '212;  People  v.  Tremain,  2J  Id.  9U;  17 
How.  Pr.  142.     Nor,  on  the  principle  of  this 


maxim,  will  the  law  require  individuals  to 
bring  suits  or  do  other  acts  which  will  be  fruit- 
less: Loomls  V.  Tift,  16  Barb.  544.  A  demand 
is  excused  when  compliance  therewith  is  im- 
possible: Schroeder  v.  Hudson  R'lv.  R.  R.  Co., 
5  Duer,  62. 

See  application  of  rule  to  a  case  where  a 
party  was  present  in  court  when  his  demurrer 
was  overruled  and  asked  time  to  answer — thia 
dispensed  with  the  written  notice:  Barron  v. 
Ddtvat,  58  Cal.  95,  98. 


3533.     Sec.  3533.     The  law  disregards  trifles. 


De  minr'mis  non  curat  lex  Nimia  su'o- 
tiltas  in  jure  reprobatur.  Bonse  fid3i  non 
convenit  de  apioibua  juris  disputare:  Ul- 
pian,  D.g.  17,  I,  20;  see  Shipman  v.  Sh'i/i'r,  14 
Abb.  Tr.  4.jG;  Jlaflrr  of  Empire  City  Bank,  18 
N.  Y.  218.  The  law  will  not  deprive  one  of 
all  compensation  on  account  of  unintentional 
and  unimportant  variations  from  the  terms  of 
his  agi'eenient:  Smith  v.  Gugerty,  4  Barb.  021. 
Nor  will  a  court  restrain  by  iujiinction  the 
publication  of  a  solitary  letter,  having  neither 
actual  value  nor  literary  merit,  the  pul)'.ication 
of  which  wuuhl  not  be  productiveof  injury  nor 
offend  tlie  most  delicate  sensibility:  Woolsinj  v. 
Judd,  4  Duer,  .")9'.);  nor  a  trespass  of  a  trifluig 
character:  Murshidt  v.  Peters,  12  How.  l*r. 
223.     Where  a  redeeming  creditor  had  paid  a 


fi!W  cents  too  little  to  the  sheriff  the  redemp- 
tion was  sustained  upon  the  authority  of  thia 
maxim:  Ex  parte  Becker,  4  Hill,  G15;  Jlrdl  v. 
Fish'-r,  1)  Barb.  29.  So  the  court  of  appeals 
refused  to  reverse  a  judgment  for  the  defend- 
ant which  shouLl  have  been  in  favor  of  tha 
plaintiff  for  si.x  cents  tlimages,  but  with 
costs  to  the  defendant:  McUoni-he  v.  N.  V.  Js 
Erie  R.  R.  Co.,  20  N.  Y.  40S.  But  tliis  maxira 
never  applies  to  the  case  of  a  positive  and 
wrongful  invasion  of  a  right:  Smifda  Rond  Co. 
V.  AJ>nrn  etc.  R.  R.  Co.,  5  H  Ji,  170;  Ellrott- 
vitle  etc.  Plank-road  Co.  v.  B  'll'do  rtc.  R.  R. 
Co.,  20  Barb.  G51;  IVison  v.  McEmy,  2'.  CaL 
174;  People  v.  Ilolladay,  Id.  312;  Troy  V. 
Clarke,  30  Id.  425. 


3534.     Sec.  3534. 


In  toto  jure  generi  per  speciem  deroga- 
tur  et  illud  politissinxura  liabetur  quod  ad 


Particular  expressions  qualify  those  which  are  general. 

See  Plait  v.  Lett,  17 


speciem  directum  est: 
N.  Y.  478. 


i;20 


Part  IV.] 


MAXIMS  OF  JURISPRUDEXCE. 


§§  3535-3539 


3535.     Sec.  3535.     Contemporaueous  exposition  is  in  general  the  best. 


Contempcraasa  espositio  est  optima  et 
fortlssima  in  1-gs. — lu  construing  a  statute, 
great  regard  shuuKl  be  paid  to  the  opinion  in 
respect  to  it  entertained  by  persons  learned  in 
the  law  at  the  time  of  its  passage:  Sedgwick's 
Stat.  &  C'o.iSt.  Law,  2ol;  Dwariis,  oGJ.  "A 
conteni|)oraneous  is  generally  the  best  con- 
structioa  of  a  statute.  It  gives  the  sense  of  a 
community  of  tlie  terms  made  use  of  by  a 
legislature.  If  there  is  ambiguity  in  the  lan- 
guage, the  understandmg  and  application  of  it 
when   the   statute   first  came  into  operation, 


sanctioned  by  long  acquiescence  un  the  part  of 
the  legislature  and  judicial  tribunals,  is  the 
strongest  evidence  that  it  has  been  rightly  ex- 
plained in  practice.  A  construction  under 
such  circumstances  becomes  established  law:" 
Packard  V.  llichanlson,  17  ^ia^s.  14,3;  Curtis  v. 
Leav'ctt,  15  N.  Y.  217.  "A  contemporaneous 
exposidon,  even  of  the  constitution  of  the 
United  States,  practiced  and  actjuiesccd  in  for 
a  period  of  years,  fixes  the  construction:"  4 
Kent's  Com.  4G5;  People  v.  Filch,  1  C'al.  523; 
Knowle-f  v.  Yeates,  30  Id.  89. 


3536.     Sec.  353G.     The  greater  contains  the  less. 


Omne  majus  coutinet  in  se  minus.  la 
eo  quod  pluj  est  semper  inest  et  minus: 
Dig.  50,  17,  110. 

Non  d3bGt  cui  plus  licet,  quod  minus 
est  uon  lioere;  Ulpian  Gothofredi,  Keg.  Juris. 
Compare  Dig.  50,  17,  2(i-37. 

Omus  majus  in  se  m^inus  complectitur: 
Kip  V.  Urhjiuun,  G  Johns.  157.  One  makes  a 
good  tender  of  a  debt  due  when  he  tencLrs  in 


mission  to  do  several  things  for  his  ovra  bene- 
fit, a  party  does  some  of  them:  Isherivood  v. 
VLdbiow,  3  Man.  &  Sel.  302;  or  if,  as  the  agent 
of  another,  he  <loes  less  than  his  power  author- 
izes him  to  do:  Story  on  Agency,  sec.  172.  A 
power  to  sell  an  estate  includes  a  power  to 
transfer  a  limited  interest:  Williams  v.  Wood- 
ward, 2  Wend.  492.  But  where  a  statute,  au- 
thorizing special  proceedings,  directs  eighteen 


due  form  more  than  he  is  bound  to  pay:  Wadena  jurora  to  be  summoned,  this  maxim  does  not 

CoA-",  5  Co.    Rep.    115;  Hubbard  v.  V/ienaiigo  justify  the  summoning  of  twenty:  Farrington 

Bai'k,  8  Cow.  101;  Dean  v.  Javie^,  4  Barn.  &  v.  Morijan,  20  Id.   207;  Carpeniitr  wWtbuter, 

Adol.  540;  and  so  acts  are  valid  if,  having  per-  27  Cal.  553. 


3537.  Sec.  3537.  Superfluity  does 
Utile  per  inutile  non  viatur:  Pickets  v. 
Xuv«_'/.s«o;i,  2  Johns.  Cas.  101;  Yates'.s  Ca-e,  4 
Johns.  3G7;  O'jden  v.  Barker,  IS  Id.  9.!;  Atjles- 
tcorth  V.  Brown,  10  Barb.  174.  This  maxim 
has  lung  been  lamiliar  to  the  common  law.  It 
has  had  frequent  application  in  the  law  of  con- 
veyancing, of  iileading,  and  of  evidence.  Thus, 
a  deed  uhicli  grants  an  estate  by  language  ex- 
plicit ;ind  certain  is  not  defeated  or  atl'ected  l)y 
the  presence  of  words  that  are  repugnant  to  the 
general  sense.  So,  in  pleading,  surplusage,  or 
the  allegation  of  purely  irrelevant  matter,  iloes 
not  alTcct  tliat  which  is  pertinent  and  in  other 
respects  valid:  Fdijirlon  v.  N.  Y.  d:  llarlnn  II. 
i?.  (;o.,  35  Id.  330;  Fowler  v.  Matt,  19  Id.  221; 
PoUll  v.  Sarato'ja  iL-  Wwsk.  li.  li.  Co. ,  9  Id.  404; 

35:8.  Sec.  3538.  That  is  certain  w 
Id  ccrtum  est  quod  certum  reddi 
potest:  Olimted  v.  Looinls,  9  N.  Y.  4:54;  Ihj- 
lanl  V.  Stafjrd,  10  Barb.  505;  Ostrander  v. 
Walter,  2  Hill,  3:12.  Thus  when  a  testator 
gives  his  "back  lands"  to  certain  devisees,  the 
description  is  rendered  definite  and  certain 
when  it  is  shown  .!»y  evidence  that  j)articular 
parcel?  of  Ian  I  were  called  and  known  by  that 
name  by  the  testator  and  his  family:  Pi/rr-ss  v. 
Whiclcr,  22  Wend.  J  48.  So  where  a  deed  iden- 
tifier the  p  irties  in  whose  favor  it  is  made,  it  is 
BuliJcicnt,  though  it  does  not  name  them:  Gates 
V.  (Jrahau),  12  Id.  5.3,  50.  So  when  a  rule  for 
the  commitment  of  a  person  did  not  specify  the 
eum  for  non-iiaynuntof  which  the  commitment 
was  ordered,  but  directed  a  referee  therein 
named  to  estimate  it,  it  was  declared  on  the 


not  vitiate. 

People  v.  Adams,  17  Wend.  475;  Chapman  v. 
Smith,  13  Johns.  80;  Mason  v.  Franklin,  3  Id. 
200;  Domjlass  v.  Satierlee,  11  Id.  19.  Nor 
need  any  evidence  be  given  of  an  averment 
which  is  wholly  immaterial:  Fairchild  v.  0.7- 
deni/nir;]  P.  P.,  15  N.  Y.  337.  A  verdict 
which  finds  the  whole  issue  is  not  vitiated  by 
finding  more:  Patterson  v.  United  Slates,  2 
Wheat.  225.  Application  of  maxim  in  Cali- 
fornia decisions:  Truebody  v.  Jacohson,  2  Cal. 
2S3;  (Jlleudorf  v.  Sxoartz,  5  Id.  41;  Van  Elton 
et  al.  V.  Jil^on,  G  Id  19;  Chapin  v.  Thompson^ 
20  LI.  087;  Wratten  v.  Wilson,  22  Id.  400; 
Stoddard  v.  Treadwell,  20  Id.  303;  Wallace  v. 
Fldrllqe.  27  Id.  497;  Love  v.  S.  N.  L.  W.  db  M. 
Co.,  32  Id.  050. 

liieli  can  be  made  certain. 

principle,  id  certum  est,  etc.,  that  the  rule  was 
sulnciently  definite  in  respect  to  tlie  amount, 
for  the  referee's  report,  when  filed  and  con- 
firmed, became  part  of  the  rule  and  the  act  of 
the  court:  People  w  Nevins,  1  Hill,  158;  People 
V.  Cavanau'jli,  2  Abb.  Pr.  88.  Upon  the  au- 
thority of  this  maxim,  it  has  been  hel.l  that 
rent,  payable  in  wheat,  is  to  be  treated  as  a 
liquidated  demand:  Van  PensseJarr  v.  Jones,  2 
Barb.  00 -i;  and  so  where  rent,  thougli  payable 
in  cash,  was  subject  to  a  deduction  for  repairs: 
Smith  V.  Filler,  2  Hill,  048;  Morris^>ii  v.  Possig- 
nol,  5  Cal.  GO;  Mesick  v.  Sander  an  I,  0  Id  304; 
JfaiirocL-  V.  ll'alson,  IS  Id.  140;  S.  haik  v.  L'vot/, 
24  Id.  101.  This  maxim  was  applied  to  render- 
ing a  verdict  certain  by  ref«M'once  to  the  ]ilead- 
ings:  J/ulchin-son  v.  Sup.  Ct.  Inyo  Co.,  01  Id.  119. 


3539.     Sec  3539,     Time  does  not  confirm  a  void  act. 

Quod  ab  initio  non  valet  In  tractu  tem- 
poris  non  convalesoit  Quod  initio  vitio- 
Bum  est  non  jootest  tractu  temporis  conval- 
esoere.— "The  general  rule  is,  that  whenever 
any  contract  or  conveyance  is  void,  cither  by 
a  positive  law  or  upon  principles  of  public  pol- 


icy, it  is  deemed  incapable  of  confirm.ation  upon 
the  nia.\iin.  Quod  ab  initio,"  etc.:  Story  Eq. 
Jur.,  sec.  300;  I'ernon'n  Case,  4  Co.  llcp.  2  b. 
"No  length  of  time,"  said  [..ord  Talbot,  "'will 
bar  a  frauch"  Cas.  temp.  Tali)ot,  73.  "It  is 
certainly  true,"  says  Mr.  Justice  Story,  "  that 


021 


§§  3540-3543 


MAXIMS  OP  JURISPRUDENCE. 


[Div.  IV. 


length  of  time  is  no  bar  to  a  trust  clearly  estab- 
lished; and  in  a  case  wliere  fraud  is  iini)Utud 
and  jirovcil,  lengtli  of  time  ought  not,  upon 
principles  of  eternal  justice,  to  be  admitted  to 
repel  relief.  On  the  contrary,  it  would  seiiu 
that  the  length  of  time  during  which  the  fraud 
has  been  suecessiully  concealed  and  practiced 
is  an  aggravation  of  the  offense,  and  calls  moi-e 
loudly  upon  a  court  of  equity  to  grant  ample 
and  decisive  relief.  But  length  of  time  neces- 
sarily oliscure.s  all  human  evidence;  and  as  it 
thus  removes  from  the  parties  all  immediate 
means  to  verily  the  nature  of  the  original  trans- 


actions, it  operates  by  way  of  presumption  in 
favor  of  innocence  and  against  imputation  of 
fraud:  Prevost  y.  Gratz,  6  \\ heat.  4dS.  In  cer- 
tain cases  also,  though  tiie  original  agreement 
was  void,  the  law  presumes  a  new  and  valid 
contract  fromadtlitional  circumstances.  Thus, 
in  the  Roman  law,  if  a  debtor  pledged  the 
property  of  another,  and  it  afterward  became 
his  own,  his  creditor  had  his  action:  Dig.  13,  7, 
41.  And  though,  if  a  husbaml  sold  his  wife's 
dowry,  the  sale  was  invalid;  yet  if  at  her  death 
the  land  became  his,  the  sale  was  established: 
Dig.  41,  3,  42. 


3540.     The  incident  follows  the  principal,  and  not  the  principal 


3540.     Sec. 
the  incident. 

Batflp  V.  CoU,  26  N.  Y.  404. 

Acce^sorium  non  ducit  sed  aequitur 
Buum  priiuipale. — By  a  general  grant  of  the 
reversion  the  rent  will  pass  with  it  as  an  inci- 
dent, though  by  the  grant  of  the  rent  generally 
the  rever&ioii  wiil  not  pass:  Vari  Wirklpti  v. 
Paulson,  14  Baib.  C54;  Demarcst  v.WUlaril,  8 
Cow.  20U;  JIars/in/l  v.  Mosdei/,  21  N.  Y.  282. 
So  the  grantee  of  land,  or  the  assignee  of  a 
lease,  assumes  the  burden  of  the  covenants  that 


3541.     Sec.  3541. 
•which  /nakes  void. 

Ut  re3  magis  valeat  quam  pereat:  Lnvg- 
don  V.  Ax.'or,  IG  N.  Y.  47;  Nichols  v.  McEw-n, 
17  Id.  23;  Lanh  v.  Buc/cmiller,  Id.  627.  This 
is  a  general  principle  which  governs  the  con- 
Btruction  of  all  agreements,  oral  or  written, 
and  of  all  unilateral  instruments,  like  deeds  or 
wills,  which  are  designed  to  embody  the  inten- 
tion of  a  party:  Finh  v.  Uuhbard,  21  Wend.  632; 
Mason  \.  While,  H  Barb.  \1Z;  Aiken  \.  Alhan>i 
N.  tfc  a.  It.  li.  Co.,  26  Id.  289;  Warhm  v. 
Bowery  Savliirjn  Bank,  4  Duer,  59;  JJall  v. 
Newcomb,  3  Hill,  233;  Jackson  v.  Rowland,  G 
"Wend.  971;  People  v.  Van  Eenasalaer,  9  N.  Y. 


nin  with  the  land  or  are  reserved  by  the  lease. 
So,  too,  the  assignment  of  a  bond  or  other  prin- 
cipal debt  carries  with  it  a  mortgage  or  other 
collateral  security  given  to  secure  it:  Jackson 
V.  Blodijet,  5  Cow.  202;  Lan'jdon  v.  Buel,  9 
Wend.  80;  Green  v.  JJart,  1  Joluis.  580;  J.ose  v. 
Jlaker,  13  Barb.  230;  Parmahe  v.  Banit,  23  Id. 
401;  Jackfon  v.  WiUard,A  Johns.  41;  Cooper  v. 
Xdvland,  17  Abb.  Pr.  342}  Jiiddle  v.  Baker, 
13  Cal.  301. 

An  interpretation  which  gives  effect  is  preferred  to  one 


3.33;  Shermerhorn  v.  Talman,  14  Id.  1.3.J;  Nich- 
oU  V.  McEwen,  17  Id.  25;  Uichard.i  v.  Edick, 
Barb.  269;  H'arhus  v.  aaviinj.'i  Unvk,  5  Duer, 
71;  Watirhnry  v.  Sinclair,  Hi  How.  Pr.  342, 
343;  shermanx.  Elder,  24  N.  Y.  384;  Spear  v. 
Downinq,  34  Barb.  527.  It  may  apply  to  a 
judgment:  Woo'lfjate  v.  Fl'-et,  9  Abb.  Pr.  239. 
Or  a  record:  Hatcher  v.  Bochetean,  18  N.  Y.  92. 
Especially  is  it  applied  when  the  efi'ect  will  be 
to  prevent  a  forfeiture:  Uiird  v.  Hunt,  14  Barb. 
575;  People  \.  Wells,2(iA\.2'l\;  Tuolumne  v. 
Stanislaus,  6  Id.  442;  Boswortk  v.  Danzien,  25 
Id.  299;  People  v.  Maripom  Co.,  31  Id.  200. 


3542.     Sec.  3542.     Interpretation  must  be  reasonable. 

Everything  is  to  have  a  reasonable  construe-     reasonable  is  implied:  Jirtiesv  Gihhonx,  8  Exch. 
tion,  and  everything  necessary  to  make  a  rule    922;  see  Buck  v.  Burk,  18  N.  Y.  339,  341. 

8543.     Sec.  3543.     Where  one  of  two  innocent  persons  must  suffer  by  the 

act  of  a  third,  he,  by  whose  negligence  it  happened,  must  be  the  sufferer. 

In   Orisioold  v.   Haven,  25  N.  Y.  595,  tliis  the  acts  of  another.     The  maxim  is  also  cited 

maxim  is  asserted  and  enforced  as  a  principle  and  applied  in  Exchamje  Bank  v.  Mont<ath,  26 

upon  wl)ieh,  independently  of  the  law  of  agency.  Id.   505,  513;  Sanford  v.    Handy,  23  Wend, 

an  innocent  party  may  be  held  responsible  for  268;  Boot  v.  French,  13  Id.  572. 

622 


INDEX. 

pRafewnces  are  to  the  flections,  "fl."  standing  for  "  statute"  under  the  section,  and  "n."  for  "not*."] 


Abandonment,  of  husband,  relieves  from 

duty  of  siipi)crt 175 

of  cliild,  eviaeuce  of  relinquishment  of 

control 1^7 

of  homestead 1243,   V2U 

of  sliip  by  ship-master 2040 

of  ship,  duties  of  ship-master  on 2941 

See  Insurance. 

Abatement.    See  Nctisancb. 

of  legacies     13G2 

of  nuisances,  claim  for  damages 3484 

of  public  nuisance,  by  whom 3494 

of  public  nuisance,  how 3495 

of  private  nuisance,  when 3502 

Abduction,  foiliidden  . 49 

Abio  and  willing.    See  Performance. 

party  offering  performance,  to  be 1495 

need  not  offer  j)aymeiit,  when 3130 

Absence,  effect  r.n  marriage 61,  97,  98 

temporary,  when  desertion 1 00 

Abuse  of  parental  authority 203 

of  authority,  renders  contract  voidable, 
15G7,  1575 

Acceptance  of  accord,  satisfaction 1523 

of  benefit  of  transaction,  effect 1589 

of  partial  performance 1741 

of  rent,  renews  lease,  when 1945 

of  guaranty,  notice  when  necessary  . . .  2795 
of  priiicipd,  waives  interest,  when. . ..  3290 
of  abandoinnent.     See  Insurance. 
of  bi  .1  of  exchange.    See  Bill  of  Ex- 

CHANOE. 

of  i>roposal  to  contract.   See  Contract. 

Accession,  property  acquired  by 1000 

To  real  property,  by  fixtures 1013 

alluvion 1014 

removal  of  bank 1015 

accumulation  of  earth 1016 

To  ppr-'Oind  property,  by  union  of  sev- 

eral  thiugs 1025 

admixture  of  materials 1028 

formation  of  new  things 1029 

workmanship 1030 

willful  trespass lO'il 

Accident,  error  in  contract  disregardetl  I G40 

depos  t  by.  must  be  accepted ISIG 

tliiui^  gained  by,  trust 2224 

Accord  detiucd 1 521 

effect 1522 

acceptauce  of.  satisfaction  .    1523 

of  li(|uidated  debt 1524 

Account,  employee  must  render 1986 

of  voluntary  iuterferer  with  property  .  2078 

ofti-uat 2237 


Account,  partners  to ,  ....  2412 

partner  to,  for  certain  profits 2438 

Accretion,  ownership  of  deposits 1014 

Accumulations,  disposition  of 722 

void,  when 723 

certain,  allowed 724 

directions  concerning,  void  when 725 

surplus  in  trust,  when  liable  to  cred- 
itors      859 

allowances  made  out  of 726 

Acloiowledgment,  declaration  of  mar- 
riage       77 

inventory  of  separate  property  of  wife.     165 

marriage-settlement  contracts 178 

contract    of    apprenticeship    of    alien 

minors 275 

articles  of  incorporation 292 

execution  of  power  by  married  woman.     SaS 

consent  to  execution  of  power 907 

instruments  for  record 1158 

instruments  evidencing  judgment  title 

for  record 1 159 

letters  patent  recorded  without 1160 

who  may  take,  in  state 1180,  1181 

who  may  take,  in  other  states 1182 

.  who  may  take,  out  of  United  States. . .   1183 

deputy  may  take 1 1 84 

requisites 1 185 

certificate,  conclusiveness  of 1 185  n. 

sufficiency  of , 1 185  n. 

by  married  women 1 186 

officer  to  indorse  certificate 1 1S3 

certificate  of,  by  corporation 1 190 

certificate  of,  by  married  women   1191 

form  of  certificate 1189-1192 

certificate  of,  by  attorney  in  fact 1192 

seals  and  signatures 1 193 

certificate  of  officer  on 1193,  1200 

certificate  of  county  clerk,  where  taken 

by  justice  of  the  peace 1 194 

subscribing  witness  to  be   personally 

known 1 1  ^6 

witness  to  prove  what 1 197 

handwriting  proved,  when 1193 

evidence  must  prove  what 1 199 

interpreter  may  be  employed 1201 

officers  may  punish  for  contempt 1201 

action  to  correct  error  in  certifying. .  .   1202 

action  to  obtain 1203 

instruments  heretofore  made 1205 

instruments  affecting  homesteads 1242 

homestead  declaration 1262 

certificate  of  change  of  name  in  part- 
nership   •••;•-  2169 


623 


624 


INDEX. 


BEO. 

Ackno'vrleagment,  certificate  of  special 

Jiartnershij) 2480 

mortga^res 29'y2 

persoual  tmrtgages 290."] 

assiLjniiient  for  heiieilt  of  creditors  ....   ."4.")8 

Acquiescence  reinovL'S  ohjection!. 3316 

Act  of  God.     See  Sdpkuuuman  Cacse. 
Ademptiou.     Si^e  Wills. 

of  legacy,   advancement  or  gift  when 

deemed 13."1 

Adoption  of  cliild 2J I 

by  \vli(im 222 

consent  i>f  wife,  when  necessary 22,3 

consent  f)f  child's  parents  necessary. ..     224 

consent  of  cliild,  wliea  necessary 22,') 

proceedings 228 

judge's  order 227 

effect 228 

effect  on  former  relations  of  cliild 229 

of  illegitimate  chiM 2.30 

act  autliorizing  orphan  asylums  to  con- 
sent to 205,  s. 

Adultery,  divorce  granted  for 92 

defined 93 

legitimacy  of  issue  of  marriage  divorced 

on  account  of 144,     145 

disposition  of  community  property  on 

divorce  for 147 

Advancement,  effect ]  309 

when  dccioed  ademption 1331 

constitutes  part  of  distributive  share. .    1395 
when  in  excess  or  insufficient,  effect. ..   1306 

what  deemed 1  :>;)7 

value,  how  determined 1398 

effect  when  person  advanced  to  dies  be- 
fore testator 1309 

Advantags,  unfair,  when  fraudulent 1375 

unfair,  when  evidence  of  undue  influ- 
ence   1575 

trustee  not  to  use  influence  to  obtain  . 

2228,  2231 

partner  must  not  obtain,  over  copart- 

.  ners.... 1411 

Adverse  cl:iiin,  depositary  to  give  no- 
tice to  depositor  of 1S25 

trustee  to  give  notice  to  beneficiary  of 

his  acnuisitioii  of 2233 

Adverse  p'ojseasion,  owner  of  property 

in,  m:iy  transfer  Ids  rigiit 1207 

property  in,  may  be  mortg.aged 2041 

Agidavit,  of  officers  on  filing  articles  of 

incorporation   295 

of  publication  of  notice  of  sale  of  delin- 
quent stock 343 

of  pulilication  of  notice  of  change  of 

partnership  name ? 2471 

of  publication  of  notice  of  special  part- 
nership)    24S4 

of  tnitli  of  iiiventory  by  assignor  for 

benefit  of  creditors 3402 

Age  of  imjority.    See  Majoiiitv,  Age 

OF;    Ml  NOUS. 
Agency.    See  Attorney  ix  Fact;  Sub- 

AG  EST. 

agent  1 1  conform  to  his  authority 2010 

must  kce;)  his  principal  informed 2020 

collecting  agent 2021 

responsibility  of  subagent 2022 

who  may  appoint,  and  who  may  bean, 

defined 2295 

parties  to,  defined 2295 

agent 2203 

agents,  general  or  special 2207 

agency,  actual  or  ostensible 2203 


RO, 

Agency,  actual 2299 

ostensible 2.300 

what  authority  may  be  conferred 2304 

agent  may   perform  acta   required    of 

principal  by  code 2305 

agent  cannot  have  authority  to  defraud 

principal 2.306 

creation  of 2307 

consideration  unnecessary 2.30S 

form  of  ar.thority 2309 

ratili';ation  of  agent's  act 2310 

ratification  of  part  of  transaction 231 1 

M'hcn  ratification  void 2312 

rescission  of  ratificaLion   2314 

measure  of  agent's  authority 2;5l.> 

actual  antl. 01  ity,  what ;''-(' <^ 

ostensible  authority,  what 2317 

agent's  authority  as  to  persons  i:aving 

notice  of  restrictions  upon  it 231S 

agent's  necessary  authority 23!  0 

declarations  of,  when  admissible 2310 

declarations  as  to  terms  of  authoiity. .  2319 
agent's  power  to  disobey  instiuctions. . .  2320 
authority  construed  by   specific  lather 

than  general  terms 2.321 

exceptions  to  general  authority 2322 

what  included  in  authority  to  sell  per- 
sonal propert}'' 2323 

what  included  in  authority  to  sell  real 

property 2324 

authority  of  general  agent  to  receive 

price  of  property 2325 

authority  of  special  agent   to  receive 

price 2326 

principal,  how  affected  by  acts  of  agent 

within  scope  of  authority   23C(I 

princip;^l,  when  bound  by  incomplete 

execution  of  authority 233). 

notice  to  agent,  when  notice  to  princi- 
pal   '. 233iJ 

obligation  of  principal  when  agent  ex- 
ceeds a-Uhurity 2333 

for  acts  done  imder  merely  ostensible 

authority 2334 

when  exclusive  credit  is  given  to  agent  2335 
rights  of  person  who  deals  with  agent 

without  knowledge  of  agency 23.36 

instrument  intended  to  I)ind  pi-ineipal.   2337 
principal's  responsibility  for  agent's  neg- 
ligence or  omission 2338 

principal's    responsibility    for    wrongs 

willfully  committed  by  agent 2339 

warranty  of  authority 2312 

agent's  i'esponsiI)ility  to  third  persons.   234.3 
obligation  of  agent  to  surrender  prop- 
erty to  thii'd  jicrson 2344 

agent  not  liaving  capacity  to  contract.   2345 

agent's  delegation  of  powers 2349 

agent's    unauthorized    employment   of 

subagent 2330 

Bubagent  rightfully   appointed,  repre- 
sents principal 2351 

termination  of 2335 

terminati(jn  where  agent  has  no  inter- 
est    2.336 

of  auctioneer 2302 

of  factor 2.307 

of  ship-master 2.i73 

of  shi  p's  manager   23S3 

ship's  m.nager  cannot  boriuw  inoiioy 

without  special  authority 2389 

of  general  partner 2429 

of  partner  in  mines,  authority 2ril9 

agent's  acts  for  insurer  on  abandonment  2726 


INDEX. 


62» 


8S0. 

Agency,  indemnity  extends  to  acts  of . ..  2775 
notice  of  dishonor,  hoW  given  under. . .  3149 
damages  for  breach  of  warranty  of  au- 
thority of 3318 

Agreemen'-.     See  Contract. 

AgrJoulcural    fair    corporation.      See 

COKPORATIONS. 

Agriculiural  laacl,  limitation  on  leases  of.  717 
Alienation,  restraints  on,  when  void,. . 

711,  716 

how  long  power  of,  may  be  suspended  715 
disposition  of   income   during  suspen- 
sion of  power  of 733 

of   intermediate  interest   does   not  de- 
feat future  interest 742 

suspension  of  power  of 770 

suspension  of  power  of,  by  trust 77 1 

Aliens,  minor,  apprenticeship  of 274 

may  liold  property 671, 

inheriting,    wlien   must    claim    or    be 

barred 672 

resident,  may  talce  by  succession MOl 

Alteration.     iSce  Revision. 

of  interests  disposed  of  by  will,  when 

revocation  of  will 1303,  1,304 

of  contrr.ct  by  consent 1G07 

of  contract  in  writing 1  COS 

contiT.ct  cxtinguislied  by 1G90 

unauthorized,  of  contract,  effect 1770 

of  contract  in  duplicate,  effect 1701 

of  thing  covered  by  fire  insurance,  in- 
creasing risli,  effect 2753 

of  thing  insured,  not  increasing  risk, 

effect .•••:••. 2754 

of  representation  in  insurance 2576 

of  obli.iration  exonerates  guarantor  . . ..  2S21 

Altema'avo,  future  interest  may  be  in. .  G9Cl 

obligation,  right  of  selection  under. . . .  1448 
obligation,    right  of    selection    under, 

how  lose '449 

obligation,  selection  under,  how  made  1450 
obligation,    effect    of    nullity    of    one 

branch  of 1451 

negotir.ble  instrument  may  l)e  in 3390 

Ambiguity,  in  wills,  how  construed. . . .  1323 

in  contracts,  lutw  construed 1349 

Am2ndniont.3  to  codss,  to  Civil  Code, 

effect  of  those  of  1874 3480,  s. 

Animals,  corporations  for  insuring  domes- 
tic   286 

corporations  for  improving  breed 28G 

douKiStic,  subject  of  ownership C55 

wild,  how  far  subject  of  ownership. . . .  650 

depositary  of,  must  use  what  care 1834 

coni[)ensatioii  of  depositary  of   1853 

borrower  for  use,  must  use  great  kind- 
ness   1SS7 

protection  of  sheep  against  dogs 33 1 1 

Annuity,  delined ]  357 

when  <liio 13G8 

Annulment  of  indentures  of  apprentice- 
ship, causes  for 276 

of  marriage.     See  Divorce. 
Appeals  from  order  distributing  property 

on  divoi'ce. 143 

Apportionment  of  burden  of  servitude 

on  partition  of  dominant  tenenn'nt  .  807 
of  losses  occasioned  by  collision  of  ves- 
sels    973 

of  covenan'^s 1467 

of  consideration  in  case  of  prevention 

of  performance 1514 

of  liire 1 035 

of  freightage,  by  contract 2140,  2141^ 

Civ.  Code— 40 


BEti* 

Apportionment  of  freightage,  according 

to  distance 2142 

of  lien 2912 

Appraisers,  petition  for  appointment  of, 

to  appraise  homestead. 1245 

such  to  contain  what 1246 

appointment  of,  to  assess  value  of  home- 
stead    1249 

oath 1230 

duties 1-51 

return 1252 

fees - 1  -53 

Apprenticeship,  wlio  may  enter  into   . .     204 
whose  consent   necessary  to,  and  huw 

given 265 

consent  to,  to  be  in  writing 2G6 

executors  may  bind  to 207 

supervisors  may  bind  to 263 

town  officers  may  Innd  paupers  to 2G9 

what  must  be  stated  in  indentures. . . .     270 

conditions  in  indentures 27 1,  272 

deposit  of  indentures 273 

of  alien  minors,  how  affected 274,  275^ 

causes  for  annul.ing  iiulcutures 270,  s^ 

act  of  April  3,  1S7G,  as  to 276,  3.. 

apprenticeship  to   mechanical  arts  or 

farming 276,. s. 

obligation  of  masters 276,  s. 

liabilities  and  actions 27G,  3. 

treatment  of 27G,  s. 

complaints 27G,  s. 

discharge  of 276,  s. 

actions  against 2,6,  s. 

removal  of  master  out  of  state 276,  a. 

Appropriation,  rights  to  water  may  be 

acquired  l)y 1410 

such  to  be  for  useful  purpose 1411 

priority  of  such  establishes  priority  of 

right 1414 

notice  of  such 1415 

diligence  in  prosecuting  such 1416 

of  payments,  I)y  debtor 1479 

of  payments,  by  creditor 1479 

of  payments,  by  law 1479 

Appurtenances  pass  by  transfer  of  land 

476,  1084,  3540 

defined 662 

certain,  deemed  iixtures 661 

to  land,  what 662 

to  ship,  what 961 

Arbitration,  partner  cannot  submit  firm 

claim  to 2430 

agrejmeut  for,  cannot  be   specifically 

enforced 3390 

Art,  married  women  may  be  corporators, 

etc. ,  of  such LS5  n. 

Articles  of  incorporation,  defined ....     239 

what  to  contain 2'.!0.  291 

prerequisites  to  filing   294,  295 

must  bo  subscribed  by  whom 296 

certificate  to  issue  afLer  fi  ing. 296 

certified  copy  of,  /iriina  facie  cvidcnco 

of  facts  therein 297 

to  be  (lie  1  in  county  where  corporation 

holds  property   ... 299 

misnomer  in,  tlocs  not  invalidate 387 

Assessment.     See  t'oni-oRATioss. 
Assignment,    by     lessor,    liability     of 

assignee   822' 

non  negotiable    contract    in  writing 
may  pass  by 1459 

of  partnership  property,  partner  can- 
not make 2430 

of  mortgage  may  be  recorded 2934 


m 


moEX. 


BEO. 

Asslgnmsnt  of  mortgage,  effect  of  re- 
cording   2935 

of  debt  secured  by  i;iortgage  carries 

the  security  with  it 2936 

general,  by  maker  of  negotiable  in- 
strumeut  to  indorser,  excuses  no- 
tice of  dishonor 3157 

in  iusolvency.     fSee  In'solvents. 
For  benefit  of  creditors,  partner  has  no 

authority  to  make 2430 

must  be  recorded  where 24G3,  2401 

void  if  not  recorded 24G5 

who  may  make 3449 

certain  transfers  not  affected  by  pro- 
visions concerning 3451 

what  debts  may  be  secured  by  . . .    . .   3452 

void  against  creditor,  when 3457,  3459 

Duist  be  in  writing 3453 

must  be  subscribed 3453 

must  bo  acknowledged  or  pro\-ed ....  3453 
gives  no  rights  greater  than  debtor 

had 3460 

inventory  to  accompany 34G1 

£,fiidavit  of  truth  of  inventory  to  be 

annexed  to 3462 

inventory    accompanying,    must    be 

filed  where 34G3 

■  of  real  property,  subject  to  certain 

provisions 3466 

.  assignee  under,  must  give  bond 34C7 

^when   power  devolves    on    assignee 

under 3463 

assignee  under,  may  be  required  to 

account 34G9 

property    exempt    from     execution 

does  not  pass  by 3470 

life  insurances  do  not  pass  by 3470 

compensation  of  assignee  under 8471 

assiTOee  not  liable  for  acts  in  good 

faith,  though  void 3172 

how  canceled  or  modified 3473 

.Associations.     See  Corporation.s. 

co-operative 2S3,  s. 

protective 280,  s. 

Attorney-general  may  inquire  into  af- 
fairs of  corporations 382 

.duty  of,  when  alien  heir  does  not  claim 

inheritance 1405 

.3S.ttome7  in  fact.    See  Agency. 

how  must  execute  certain  iustrnmenta  1095 
form  of  certificate  of  acknowledgment 

by 1191 

power  of,  how  revoked 1210 

Attornment,  by  tenant  to  landlord,  un- 

uocessary.    11 1 1 

by  tenant  to  stranger,  void 1943 

Ruction,  sale  of  delinquent  stock  by .341 

sale  by,  defined 1792 

sale  by,  when  complete 1 793 

withilrawal  of  bid  at  sale  by 1794 

Written  conditions  of  sale  by,  not  to  be 

modified 1795 

rights  of  bidder  at 1793 

by-biddin'^  prohibited. , 1797 

memorandum  of  sale,  by  whom  made  1793 

Bale  of  pledged  property  to  be  by   3005 

.Author,  of  product  of  the  mind,  exclu- 
sive owner  thereof 980 

rights  of  subsequent 984 

. Authority,  construction  of  words  giving 

joint 12 

abuse  of,  renders  contract  voidable... »  15C8 

«f  agent.     See  AoENCT. 

of  auctioneer.    See  Auctioxkeb^ 


■BO. 

Authority  of  executor.  See  ExECUTons. 
of  factors.     See  Factors. 
of  parent.     See  Parent. 
of  ship-master.     See  SmPPr^rfK 
of  ship's  manager.     See  Suippino, 
of  triistee.     See  Trust.s. 

Average,  general,  defined , . .   2148 

general,  how  adjusted 2152 

general,  value,  howascertaineil  for  pur- 
pose of 2153 

general,  owner  of  goods  stowed  on  deck, 

whefl  entitled  to  benefit  of 2154 

ship-master  has  power  to  adjust 2288 

insurance  free  from,  effect  of 27 1 1 

general,  marine  insurer  liable  for  2712,  2744 
Avulsion,  owner  may  reclaim  laud  car- 
ried away  by 1015 

Award.     See  Arbitration. 

Baa  defined 2780 

how  regulated 2781 

Bailment.     See  Deposit;   Depositartj 

Pledge. 
Banking,  book  and  notice  of  directors 

a.id  stcxjkholders 321 

change  of  principal  place  of  business  of 

corporation 321 

banks  to  publish  and  record  semi-annual 

statement 321 

assets  and  liabilities  to  be  described. . .     321 
liability  for  making  false  statement. . .     321 

recorder  to  keep  certain  records 321 

fees  of  recorder 321 

business  corporation  not  to  carry  on. . .     356 
special  partnership  cannot  carry  on., . .  2477 

lien  of  banker  3054 

pass-book  not  negotiable 3262 

Bank  notes,  negotiable  after  payment. .  3201 
Beneficiary  of  real  estate.     See  Pitop- 
erty. 
of  trust.     See  Trusts. 
Benevolence.     See  Charitable  Use."?. 
corporations  for  purposes  of.     See  Cor- 
porations. 
Bigamy,  ground  for  nullifying  marriage,       82 
Bill  of  exchange,  presumptive  dishonor 

of,  payable  after  sight 313.^ 

apparent  maturity  of 3134 

defined 3171 

may  give  name  of  second  drawee  in 

case  of  need 3172 

may  be  in  set 3173 

when  must  be  in  set 3174 

presentment  of  one  of  set  sufficient.   3175 

where  payable   3176 

drawer  of,  has  same  obligations,  etc., 

as  indorser 3177 

days  of  grace  not  allowed  on 3181 

bill  drawn  on  drawer  and  accepted 

is  promissory  note 3255 

Acceptance,  agent  for  collection  must 

present  for 2021 

how  made 3193 

must  be  writing 3194 

how  made,  by  consent  of  holder 3195 

by  refusal  to  return 3195 

by  separate  instrument 3196 

promise  to  accept,  when  equivalent  to  3197 

may  be  canceled,  when 3198 

what  is  admitted  by 3199 

for  honor,  when  allowed 3203 

for  honor,  holder  not  bound  to  re> 

ceive 3204 

for  honor,  how  made 3205 

for  honor,  how  enforced ^.^ .  3206 


INDEX. 


627 


8E0. 

Bill  of  exchange,  Aeceptanrp,  for  honor, 

notice  forilibliouor  notexcased  l)y. . .   3207 
Paymeiil,  for  liuuor,  must  be  received 

by  liuldcr 3-204 

for  lionnr,  liow  made 3J0o 

PreiKiUmcnt,  for  acceptance.wlien  matle. 

31S5,  31S9 

for  acceptance,  by  whom  made 3!SG 

foraoceiitaiice  to  joint  tliawees 3187 

for  acceptance  to  drawee  in  cose  of 

need 31S8 

for  i)ayiiieut,  where  made S2\  1,  3J1'2 

for  payment,  effect  of  del.iy  in. 3213,  3214 
for  acceptance,  wiien  excused.   3218,  3219 
drawi-r  acting  frauduleully  not  enti- 
tled to  notice 3220 

Forfih/ii,  defined 3224 

notice  of  dishonor,  how  given 3225 

protest,  by  whom  made 3226 

protest,  how  made 3227 

protest,  where  made 3223 

protest,  when  made 3229 

protest,  when  excused 3230 

notice  <if  protest,  how  given 32;}l 

notice  of  protest  may  be  waived. . . .   3232 

how  paid  for  honor 32;>3 

damages  for  dishonor .T234,  3235 

interest  as  damages  for  dishonor. . . .  3236 
damages  for  dishonor,  how  estimiited 

in  fetleral  money 3237 

dama^'es  for  dishonor,  how  estimated 

ill  foreign  money .3238 

Bill  of  lading  defined 2I2G 

negotiable 2127,  2128 

effect  of,  on  carrier 2129 

consignor  entitled  to 21.30 

effect  of  refusal  to  gi%-e 2130 

delivery  to  holder  of,  sufficient 2131 

carrier  may  require  surrender  on  deliv- 
ery     ..  21.32 

effect  of  accepting,  from  carrier 2176 

Boarding-house  keepers,  lien  on  bag- 
gage    1861 

Bale  of  unclaimed  baggage  for  storage, 

etc 1862 

posting  of  statement  of  charges  by . . . .    1863 
Boards  of  trade,  act  providing  for  forma- 
tion of 286,  8. 

Bona  fide  ptirchasers.  wlio  are 1214  n. 

take  laud  freed  from  tiiist,  when 836  n. 

who  deemed  to  have  notice 1217  n. 

Bonds,  incorporations  for  giving 288,  8. 

restricting  issue  of  by  corporations 359 

Borrower.     See  Loan'. 

Bottomry,  extent  of  insurable  interest  of 

sliip  iiypothecated  by 2660 

defined 3017 

owner  may  hypothecate  upon  in  any 

case 3018 

ship-master    may    hypothecate    upon, 

wlien   3019-.3021 

rate  of  interest  upon 3022 

rights  of  lender  upon,  when  not  neces- 
sary    3023 

stipiihition  for  personal  liability  under, 

void 3024 

loan  nj)(>n,  when  due 3025,  3026 

lien,  how  lost 3027 

lien,    takes  priority  over  other  liens, 

when 3023 

priority  of  several  liens  of 3029 

Boundaries,  by  water 8."«) 

by  way 831 

coterminous  owoers  bound  to  maintain . ,  841 


BEC. 

Bridjja   corporaiioas.    See    Corpora- 

I  IONS. 

Broilers,  commissions  of    real  estate.  .2367  n. 

antiionty  to  I'C  in  wrlLing 1024 

Building  corporations.    See  Corpoii.\- 

TIO.NS. 

Burden  of  proof,  on  wliom  to  prove  want 

of  coni^ideration  in  writing 1015 

Burial,  lot  inalienable  after  burial  therein     613 

riglit  of,  as  easement 801 

right  of,  as  servitude   802 

Business  days,  what  are   9 

right  of  Iransactiug,  on  laud,  an  case- 
ment      SOI 

good-will  of,  subject  of  ownership (>05 

good-w;ll  of,  transferable OO.'i 

good-will  of,  defined 092 

contract  not  to  pursue,  how  far  void  . .    1073 
general    partner   must   not   engage    in 

separate 2436,  24.37 

liability  of  partner  engaging  in  sepa- 
rate  2433 

Buyer.     See  Salk. 

By  bidding  at  auction,  a  fraud 1797 

Bylaws.     See  Cor.fuuAJioNs. 

Canal    corporations.      See    Corpora- 

TION.S. 

Cancellation  of  grant  of  real  property 

does  not  revest  title 1033 

of  will,  when  operates  as  revocation. . .   1292 

of  will,  proof,  liow  made 1293 

of  written  contract 1699 

of  acceptance   by  acceptor,  when  al- 
lowed.    3193 

of  written  instrument,  adjudged  when.  3412 
of  written  instrument,  void  on  face  not 

allowed 3413 

of  written  instrument,  partial,  may  be 

adjudged 3414 

Care.    See  Neolioencr;  Skill. 
Slight,  gratuitous  depositary  to  use  ...   1848 

gratuitous  employee 1975 

gratuitous  carrier  of  property 2114 

Ordinary,  depositary  for  hire  to  use. . .   1852 

hirer 1923 

employee  for  reward 1073 

voluntary  agent 2073 

gratuitous  carrier  of  persons 20'.)6 

carrier  of  propei  ty  for  reward 2114 

trustee 2259 

Orfot,  borrower  to  use 1 SS6 

employee  for  his  own  benefit 1979 

ship-master 2043 

carrier  of  messages  for  reward 2162 

Utmost,  carrier  of  persons  for  reward  to 

use 2100 

carrier  of  messages  by  telegraph  ....  2162 
Carelessness.     See  Neolioe.nck. 
Carriage.     See  Cakkiek;  FKEiunT  a.vd 
Fkeiuiitaoe. 

contract  of,  defined ,. ......  2035 

different  kinds  of , 2086 

marine  and  inland  carriers  defined  . .   20S7 

duties  of  carriers  liy  sea 2088 

gratuitous,  obligations  of 20S9,  2090 

has  insuralde  interest 2548 

Freii/hfaije,  »letined 2110 

when  payable 2136 

consignor,  wlien  liable  for 2137 

consignee,  when  liable  for 2133 

on  what  chargeable 2139 

when  apportioned 2140  2142 

in  case  of  extra  performance 2143 

lienfor.... ...«,  2144 


628 


INDEX. 


■EO. 

Carriage,  O/wts^/Jogrw,  must  delixer,  how.  2101 
deyiee  of  care  and  diligence  required 

of 21G2 

Of  persons,  gratuitous,  obligations  of. .   2096 
for  reward,  must  use  utmost  care.  . .    2100 
for  reward,  must  provide  safe  vehicles  2101 
for  reward,  must  not  overload  vehi- 
cles  2102,  21S5 

for  reward,  must  afford   reasonable 

accommodation 2103 

for  revvaril,  must  travel  witliout  delay  2104 
0/ property,  for  reward,  must  use  ordi- 
nary care 2114 

gratuitous,  must  use  slight  care 2114 

must  obey  directions 21 15 

duties  of,  in  case  of  conflicting  orders  2116 

mu.st  not  stow  freight  on  deck 2117 

must  not  deviate 2117 

mu.st  not  vitiate  insurance  on  freig'it  21 17 
must  deliver  freight  where  .  .  .  ,21  IS,  2119 
must  give  notice  of  arrival  when. . . .   2120 

may  termiiuite  liability  how 2121 

may  place  in  vvareliouse  wiien 2122 

must  give  bills  of  lading 2126 

may  deliver  freight  to  liolder  of  bill 

of  lading 2130 

"when  may  demand  surrender  of   bill 

ladng 2i;U 

may  throw  freight  overboard  when..  2143 
notice  must  bo  given  to,  to  effect  stop- 

pa'^e  ill  transit 3079 

Carrier,  commou.     8ee  Railroad.-^. 

defined 21 G3 

must  accept  what  is  offered   2 1 09 

when  must  not  give  preference 2170 

may  give  preference  to  government .   2171 

must  slart  when 2172 

comjieusation  of 2173 

obligations  of,  how  modilicd  by  agree- 
ment or  notice 2174 

cannot  bo  relieved  from  certain  lia- 
bilities   2175 

effect  of  written  contract  of 2170 

mortgage  of  property  of,  where  to  be 

recorded 2961 

Of  vifssn-jes,  by  telegrapli,  must  trans- 
mit ia  wliat  order 2207 

in  other  cases,  uiust  transmit  in  wiiat 

order 2203 

liability  for  improper  <lelay 2207 

Of  pfrsons  must  carry  luggage 2180 

liability  of,  for  luggage 21SI 

nnist  (ielivi  r  liigg  ige  wlicu 2183 

must  provide  sulliciciit  acconunoda- 

tion 2IS5 

must  |)i-ovidc  veliic!e3 • 2184 

regulations  for  conducting  business. .  2180 
rules   and   regulations,    carrier   may 

make 2180  n. 

liability,  as  alTecled  by  contract.  ..2180  n. 

p;is.se.s,  elfeet  >>n,  liability  of 2180  n. 

injuries  received  froai  collision. .  .  .2180  n. 
contributory  neg.igunce  of  passenger 

2186  n. 

mav  d^mau  1  fare  win-n 2187 

may  ijeci,  p.isseiiger  for  iion-i)aytncnt 

of  f.m; 2188,  2189 

cannot  demand  payment  after  ejec- 
tion  2190 

lias  lieu  on  luggage 2191 

Of/>roprr.';/,  liability  of,  for  loss.. 2194,  2200 

liab/ity  of,  for  delay 2196 

liability  of,  for  negligence 2195 

marine,  liability  of ..2197,  2193 


SKO. 

Carrier,  ccmmon,  Of  property,  duties  of, 
in  respect  to  freight  going  beyond 

its  route 2201 

must  give  evidence  of  cause  of  loss. .   2^:02 

obligaiions  of,  in  other  respects 220.3 

Carriers,  not  to  give  preference 2170 

Cemetery  corporations,     fcjee  Corpo- 

IIATION.S. 

Certifioate  of  indentures  of  apprentice- 
ship       275 

false,  by  olficer  of  corporation 316 

for  continuing  corporate  existence  of 
corporation 405 

of  ship-master  as  to  exertion  of  seamen 
to  save  ship 2059 

of  names  of  partners 2408 

of  proof  of  loss  under  insurance,  when 
dispensed  with 2637 

of  discharge  of  mortgage  to  be  liled  with 
recorder 29;;9,  2940 

of    acknowledgment.     See    AcKNo\VL- 

EtKi.Mt.NT. 

of  incorporation.     See  Corporations. 
of  marriage.     See  Makria(;e. 
of  partnership.     See  Partnership. 
of  stock.     See  Corporation's. 
CertiGoates  of  deposit,  negotiability  of 

3262  n. 

Cliambers  of  cormnerce,  act  to  provide 

for 286,  8. 

Cliaritable  uses,  permitted  by  the  codes 

847  n. 

restriction  on  power  to  devise  to 1313 

municipal  boards  may  take  for 1313,  s. 

Charter-party  detiued  an  1  regulated.  ..   1959 
slup-master  may  enter  into,  in  foreign 

port..    2376 

ship's  manager  may  enter  into 2388 

certain  insurable  interest  exists  under.   2.;G  5 

insurable  interest  of  chai'terer 2Gj.$ 

Cbastity,  want  of  personal,  avoids  prom- 
ise to    marry  made  iu  ignorance   of 

fact 62 

Chattel  interest  defined 765 

Chattel  mort^ase.     See  Mortgage. 

Chalitel  r jal  delinjd 67» 

when  estate  for  life  of  third  person  be- 
comes       76i> 

limitation  of 770 

Check,  a  negotiable  instniment 3095 

defined o2ol 

effect  of  delay  iu  presentment  of S2oii 

title  of  indorsee  to,  without  notice  of 

dislionor   325.( 

Child.     See  Parent  and  Child. 

en  ventre  sa  mere,  rights  of 29  n, 

Ch033S  i.i  action  deiiaed 95;{ 

transfer  of  and  survivorship  in 954 

value  of,  how  tletermineil  in  assessing 

damages    356 

Church,  right  to  se.it  in,  as  easement.  . .     801 

riglit  to  seat  in,  as  servitude 802 

corporations  for  maintenance  of 286 

CitlDS,  grant  of  lands  of  state  in,  for  rail- 
road purposes 475 

lease  of  lots,  void  when 718 

Clerk   of    county,    duty   of,   regarding 

marriage  licenses 09 

articles   of    incorporation   to    be    filed 

with 298 

of  court  of  record  may  take  acknowl- 
edgment     1181 

duty  of,  where  acknowledgment  is 
taken  by  justice  of  peace 1194 


INDEX. 


629 


SEO. 

derk  of  county,  petition  for  appraise- 
ment of  hoaiesteaJ  to  be  lileil  with. .    1247 
must     keep     register     of     partuership 

names 2470 

cerliticate  of  formation  of  special  part- 
nership to  be  filed  with 24S0 

notice  of  tllssolutiou  of  special  partuer- 

ship  to  be  tiled  with 2509 

Codo,  C-vJ,  title  of 1 

V  lien  takes  effect 2 

not  retroactive  unless  so  declared 3 

construction  of 4,  5 

affects  no  action  commenced  or   right 

accrued  before  its  taking  effect 6 

effect  on  existing  statutes 20 

bow  cited 21 

effect  of  amen<lments  of  1S74  to 34S0,  s. 

Codicil,  included  in  term  "  will  " 14 

execution  of,  republishes  will 12S7 

revocation  nf  will  revokes 1305 

Cohabitation,  when  prevents  nullifying 

niarnage 82 

Collat3ral  warranties  abolished 1115 

Collection,  a;^feut  for,  duties  of 2021 

partner  acting  in  liij nidation  may  make  24ol 

effect  of  warranty  of 2S00 

C0II33S3,  corporations  fur  maintenauceof.     2S0 

formation  ot  corporation 049 

powers  of  trustees G")0 

transfer  of  property  to 651 

Collision,  rules  for  avoiding 970 

from  lircach  of  rules  of  navigation  ....     971 
from  breach  of  rules  of  navigation  im- 
plies wdlful  default 972 

loss  by,  how  apportioned 973 

Colius  on,   divorce  nmst   be  denied   on 

showing Ill 

defined 114 

prcsuiiii)tion  of,  established  by  lapse  of 

ti:iie 125 

Comme.cial  paper.     See   Nkootiable 

In.^tucments. 
Common  carriers.     See  Carriers. 
Cominon  law,  rule  of,  construction  of 
statutes  in  derogation  of,  not  appli- 
cable to  Code ^. , .         4 

rttle  of  decision 

Civil  Code  considered  continuation  of  .         5 

Communication,  privileged 47 

pri\ ate,  in  wriiing,  ownership  of 9S5 

of  consent,  essential  to  contract 15G5 

of  consent  to  contract,  how  made.  15S1,  15S2 
of  consent  to  contract,  when  complete.  15S3 
upou  insurance,  what  must  lie  uiade  . .  2503 
upon  i.isurance,  wliatneeil  not  be  made  2504 
uiion  insurance,  of  nature,  etc.,  of  in- 
terest not  required,  when 25GS 

upon    insurance,    on    matters  of   judg- 
ment, unnecessary 2570 

upon  i-einsurance,  what  required 2347 

upon  marine  insurance,  what  required.  2009 
of   acceptance   of    offer   to  guarantee, 

m-cessary 2795 

Community  property.     See  Hdsbamd 

AM>  WiFK. 

Compensation  of  appraisers  of  home- 
stead   12"S 

of  dei)03itary  for  hire 1S53 

of  liiider 18G7 

borrower  entitled  to  certain   1892,  1394 

f>)r  l.>an  called  interest 1915 

duties  of  employee  for 1978 

in  case  contract  of  service  is  continued 

beyond  two  years 1980 


BEC. 

Compersation  of  employee  continuing 

services  axLcr  deai.j  of  employer 1998 

of  employee  dismissed  for  fault 2002 

of  employee  quitting  for  cause 2003 

managing  owner  of  ship  not  entitled  to   2072 

of  voluntary  depositary 2078 

of  common  carrier 2173 

of  trustees 2273,  2274 

partner  not  entitled  to 2413 

lienor  rot  entitled  to 2392 

gcnerr.Ly  given  by  law 3275 

lor  mistake,  when  allowed 3391 

for  partial  failure  to  perform 3392 

may  bo  required  on  rescission,  when...   340S 

of  assignee  for  bcncllt  of  creditors 3471 

Conceaixnent     See  Fraud. 

avoiding  condonation 120 

by  trustee  when  fraudulent 2223,  2234 

partner  not  to  obtain  advantage  by ... .  2411 
in  insurance.     See  In.sura.nce. 
Condition  in  indentures  of  apprentice- 
ship  271,  272 

of  ownership 707 

kinds  of,  ot  ownership 708 

of  ownership,  when  void 709 

restraining  marriage,  when  void....     710 
restraining  alienation,  when  void. ...     711 
delivery  of  grant  to  grantee  on,  void    1056 
grant  may  bo  deposited   with  third 
person,  to  be  delivered  on  perform- 
ance of 1057 

tenant  without  notice  not  liable  for 

bleach  of,  of  lease 1111 

kinds  of,  in  obligations 1 4;}4 

performance  of,  when  excused 1 140 

impossible  or  unlawful,  void 1441 

offer  of   peiformance   must    be   free 

from  what 1494 

of  proposal,  must  be  fulfilled  by  ac- 
ceptance     1582 

of  proposal,  performance  of,  is  accept- 
ance      1584 

failure  to  perform  revokes  projiosal. .    1587 
•written,  governing  auction  sale,  not 

to  be  mo  lilie  1  orally 1705 

Conciirr'- III,  in  obligations,  what 1137 

what  may  depenij  on  performance  of  1493 
Precedent,  grant  on,  only  an  executory 

contract 1110 

in  will,  what 1346 

in  will,  effect  of 1347 

in  wi  1,  when  deemed  performed....    1348 

in  obligations,  what 1436 

when  must  ba  performed 1439 

what  may  depend  on  performance  of  1403 
Subsequent,  condonation  implies  certain.    1117 
right  of  re-entry  for  breach  of,  trans- 
ferable     1046 

property  to   be  reconvcycd   on  non- 

perfonnancc  of 1 1 09 

in  will,  what 1349 

in  obligations,  what    1433 

Conditional,  delivery  cannot  be  made..    1056 

will,  when  may  be  ilcnied  probate 1281 

devise  or  bequest,  what 1345 

devise  or  bequest,  when  vests 13 17 

obligation 1434 

obligation,  prerequisites  to  enforcing. .    1439 
obligition,   performance   of,   when    ex- 
cused  1440 

obligation,    involving    forfeiture,    how 

construed 1412 

offer  of  perforniance,  wiien  vali<l 1494 

obligation,  liability  of  guarantor  on. . .   2303 


C30 


INDEX. 


SEC. 

Condon^ition.     S(>c  Divorce. 

Conf  asioa  of  goods.    Sue  Accession. 

ounurship  of  things  foriiud  by.  .  .  1025-1032 
Consent,  of  juirtios  noc(;ssary  to  iiiarriage  55 
ulone  does  not  constitute  niarriago. ...  65 
who  ai'e  capable  of  giving,  to  marriage  56 
to  uiarria;^e,  how  manifesteil  and  proved  57 
incai)acity  to,  vvheu  ground  for  annul- 
ling marriage   82 

separation  by,  not  desertion 99 

to  si*paration,  a  revocable  act 101 

corrupt 112 

corrupt,  how  manifested 113 

mutual,    sufBcient     consideration     for 

agreement  to  separate   160 

of  husband,  not  required  for  transfer  of 

wife's  separate  property 162 

\VTitten,  of  mother,  necessary  to  trans- 
fer custody  of  child 197 

of  wife,  necessary  for  married  man  to 

adopt  child ." 223 

of  child's  parents  necessary  to  adopt 

cliild 224 

of  child,  wiien  necessary  for  its  adop- 
tion       225 

for  apprenticeship  of  child 265,  2G6 

of  party  entitled  to  benefit  necessary  to 

transfer  of  burden 1457 

contract  may  be  rescinded  by  mutual..  1689 
thing  obtained  without,  of  owner,  to 

be  restored 1712 

of  depositor  necessary  to  use  of  deposit 

by  depositary 1835 

of  landlord  necessary  to  attornment  to 

stranger 1948 

of    principal,    necessary   to   release   of 

factor 2030 

voluntary  interference   with   property 

without 2078 

of  beneficiary,  necessary  to  allow  trus- 
tee to  hold  adverse  interest 2233 

mutual,  necessary  to  create  trust 2251 

not  necessary  to  rescission  of  ratifica- 
tion  2314 

of  all,  necessary  to  creation  of  partner- 
ship   2397 

unanimous,  necessary  to  admission  of 

new  partner 2397 

not  necessary  to  create  guaranty 2788 

to  contract.     See  Contract. 

Consideration,  valuable,  delined 14 

miuor  nmst  restore,  on  disaifirmance  of 

contract 35 

mutual  consent  to  separation  suliicient.  100 
effect  of  transfer  where  paid  by  third 

party 853 

not  necessary  to  validity  of  voluntary 

transfer. 1040,   1146 

old  obligation  extinguished  by  new...  1541 
written  instrument  prima  facie  imports.  1014 
on  whom  falls  burden  of  proof  to  show 

want  of  suliicient 1615 

good,  defined 1605 

how  far  moral  obligation  is  good 1606 

must  be  lawful 1607 

effect  of  illegality  of 1G03 

may  be  executed  or  executory 1609 

executory,  need  not  be  specilied IGIO 

executory,  how  ascertained 1611 

effect  of  impossibility  of  ascertaining 

1612,  1613 

contract  may  be  altered  without  new. .  1G97. 
failure  of,  when  ground  for  rescission. .  10S9 
not  necessary  to  create  agency 2308 


■EO. 

Consideration,  necessary  to    guaranty, 

when 2792 

need  not  be  expressed  in  written  guar- 
anty   2793 

presumption  of,   in   negotiable  instru- 
ments   3104 

effect  of  want  of,  in  negotiable  instru- 
ments    3122 

of  contract.     See  Conitiact. 

Consignment,  dt-fined 21 10 

carrier  must  obey  consignee,  when ....   2116 

when  carrier  must  obey  consignor 21 10 

storage  of  freight  on  deck   2117 

freight  to  be  delivered  to  consignee. . . 

2118,  2119 

notice  of  arrival  of  freight  to  be  given 

to  consignee 2120 

when  consignee  refuses  to  accept,  freight 

may  be  stored 2121 

consignee  liable  for  freightage,  when . . 

Cl;{7,  2138 

efi'ect  of  acceptance  of  part  perform- 
ance   2141 

assent  of  consignee  to  special  contract, 

how  proved 2176 

consignor  may  stop  goods  in  transit  on 

insolvency  of  consignee 3076 

what  is  insolvency  of  consignee 3077 

Construction.      See   Contuact — luter- 
pri  tation. 

Constructive  notice  defined 18,   19 

delivery 1059 

fraud  defined 1573 

Consul  of  United  States  may  take  ac- 
knowledgments      1 183 

Contempt^    officer    taking  acknowledg- 
ment may  punish  for 1201 

Contingent  interest,  defined 095 

not  void  because  imjjrobable 697 

Contingent  remainder  on  prior  remain- 
der in  fee 772 

how  credited 773 

on  terra  of  years 776 

Continuance  of  existence  of    corpora- 
tions  287,  401 

Continuing  guaranty.    See  Gdakanty. 
Contract,   minor  may  make,  subject  to 

disafiirmance 34 

of  minor,  when  and  how  disaffirmed. . .       33 
minor  or  insane  person  cannot  disaffirm 

for  necessaries 36 

person  entirely  without  understanding 

cannot  make 38 

when   person   of    unsound  mind  may 

make 39 

when  person  of  unsound  mind  cannot 

make 40 

marriage  a  personal  relation  arising  out 

of  ci  vil 55 

to  marry,  how  parties  may  be  released 

from 62 

husband  and  wife  may  make 158 

of  separation  by  husband  and  M'ife. . ..     159 
husband  and  wife  cannot  alter  their  le- 
gal relation  by,  except 159 

consideration  of  such  contract 160 

for  payment  of  money  l)y  wife 167 

marriage  settlement,  how  executed ....     178 
marriage  settlement  must  be  acknowl- 
edged and  reconled 179 

effect   of   recording  or  non-recording 

marriage  settlement 180 

minor  may  make  marriage  settlement     181 
in  indentures  of  apprenticeship 272 


IKDfiX, 


631 


Contract    of    apprenticeship    of    alien 

minor 274 

to  relieve  directors  from  liability 3*27 

executed,  voluntary  transfer  is 1040 

executory,   grant  on   condition   prece- 
dent is 1110 

to  sell  personal  property 1140,   1739 

of  sale  nut  revocation  of  will 1301 

non-negotiable  written,  transferable. . .   1459 

novation,  a 1532 

definition  of 1549 

essential  elements  of 1550 

for  benefit  of  third  person  may  be  en- 
forced by  bim 1 559 

what  must  be  in  writing 1G"24 

time,  when  of  essence  of 1658 

when  presumed   to  be  joint  and  sev- 
eral  1659,  1660 

executed  and  executory 1601 

contract  in  writing  may  be  altered  by  1698 

for  sale,  wliat 17"26 

to  sell,  defined 1 7'27 

to  buy,  defined   17"28 

to  sell  or  buy,  defined 1729 

to  sell,  what  may  be  subject  of 1730 

to  sell  real  jiroperty 1731,  1741 

to  sell  real  projjerty  binds  seller  to  in- 
sert ceitain  covenants 1 733 

for:n  of  such  covenants 1734 

to    manufacture    from    materials    fur- 
nished by  manufacturer 1740 

of  sale  with   warranty  entitles  buyer 

to  inspect  goods 17S5 

of  sulii  may  be  rescinded  for  breach  of 

warranty 1786 

seamen  not  to  be  deprived  of  wages  or 

lien  by 2052 

witli  seamen,  restrictions  on 2053 

obligations  of  common  carrier  can  be 

aUered  only  by 2174 

certain,  with  common  carrier,  void.. ..   2175 
effect  of  written,  with  common  carrier  2176 
express,  not   necessary  to  create  min- 
ing partnership 2512 

not  to  transfer  insured  interest,  when 

void   2599 

of  indeiimity 2772 

certain,  alfecting  liens  void 2889 

wliat  not  allowL'd  in  negotiable  instru- 
ment     3093 

to  conviy  real  property,  damages  for 

breach  of 3306 

to  purchase  real  property,  damages  for 

bre;ich  of 3307 

to  Rt'll  ]tersonal  property,  damages  for 

breach  of 3.308,  3309 

to  buy  personal  property,  damages  for 

breach  of 3311 

Consent,  essential  elements  of 1565 

wlieii  not  free,  not  void  but  voidable.   1566 

apparent,  wlien  not  free 1567 

when  deemed  oljtained  through  fraud  1568 

duress  ia  ob'.aining,  defined 1509 

mt-'iiace  in  obtaining,  defined 1570 

fraud  in  obtaining,  defined 1571 

actual  fraud  in  obtaining:,  defined. . .   1572 
constructive  fraud  in  obtaining,  de- 
fined    1573 

undue  influence  ill  obtaining,  defined.    1575 

mistake  in  obtaining,  defined 1576 

mistake  of  fact  in  obtaining,  defined.    1.577 
mistake  of  liw  in  obtaining,  defined.    1578 
piistake  of  foreign  law  in  obtaining, 
defined 1579 


BEO. 

Contract,  Consent-,  when  deemed  mutual  158() 
when  deemed  communicated. .  .1581,   1582 

when  deemed  complete 1583 

proposal  of,  when  deemed  accepted. .   1584 
acceptance  of  proposal  must  be  abso- 
lute    1585 

revocation  of  proposal 1D89 

revocation,  how  made 1587 

voidable,  may  be  ratified 1 583 

acceptance  of  l>enefit,  when  deemed.    1589 

may  be  rescinded 1689 

Covsideralion,  good,  defined 160.i 

how  far  moral  obligation  is  good. . . .    1605 

nmst  be  lawful 1607 

effect  of  illegality  of 160$ 

may  be  executed  or  executory 1609 

executory  need  not  lie  specified 1610 

executory,  how  ascertained 1611 

effect  of  impossibility  of  ascertaining 

1612,  1613 

contract  may  be  altered  without  new  1697 

Creation,  by  express  words 1620 

by  implication 1621 

oially 1622 

by  writing 1623,  1624 

by  writing  supersedes  oral  negotia- 
tions    162S 

by  writing,  when  takes  effect 162S 

by  writing,  delivery  necessary  to. . . .   1627 

provisions  abolishing  seals 1629 

Extinction,  in  general 1 682 

by  rescission 1688 

by  rescission,  in  what  cases 1689 

certain  stipulations  do  not  prevent 

rescission 1690 

by  rescission,  how  effected 1691 

by  alte.-ation 1697 

sealed,  how  modified 1693 

by  cancellation  and  destruction 1699 

by  unauthorized  alteration 1700 

alteration  of  duplicate  not  prejudice  1701 

Interprrlation  to  bo  uniform 1635 

to  effectuate  mutual  intention 16.^6 

to  ascertain  intention 1637 

to  be  governed  by  language  used. . . .    1633 
to  be  governe<l  by  written  words. . . .    1639 

exception  in  cases  of  fraud 1640 

entire  contract  to  bo  considered  in. .   1641 
several  contracts  to  be  taken  together 

in 1642 

to  be  favorable  to  validity 1643 

according  to  ordiuary  sense  of  words  1614 

technical  words 1615 

what  law  gi  iverns 1 646 

by  surrounding  circumstances 1647 

subject-matter  to  be  considered  in..    1647 

to  be  restrained  by  its  object 1643 

uncertainty  in,  to  be  construed  against, 

when 1649,  1654 

geni;i-al  intent  to  prevail  in 1650 

originaland  written  parts  in,  to  prevail  1 651 

repugnances  in 1652 

inconsistent  words  to  be  rejected  in  .    1653 

wiiat  stipulations  implied  in 1655 

incidents  to  cimtract  implied  in 165(1 

in  respect  to  time  of  performance.  . .    1657 

Ohjert,  defined 1395 

must  bo  lawful,  possible,  and  ascer- 
tainable    1596 

when  deemed  possible 1597' 

wlien  illegality  of,  renders  contract 

wliolly  void   1598  • 

when  illegality  of,   renders  contract 

partly  void 1599 » 


632 


DTBEX. 


BEO. 

Contract,  Parties^  who  may  Vm lo.'jfl 

MliL-n  minors,  etc.,  may  l)e l-w7 

must  lie  capable  of  iik-ntitication. . . .    15o8 
for    l)ciiertt  of   thii'il  i>ers()U  may  be 

en 'orced  by  him 1559 

Unla>rj)d,  defined 1GG7 

'       certain  contracts  declared 1 GG8 

fixin>4  damages 1G70 

exception 1G71 

restraining  trade,  when 1G73 

restraining  trade,  when  not. . ,  .1674,    1G75 

I'f^training  marriage    1G76 

Contribution,  joint  debtor  may  require, 

when 1432 

,  release  of  joint  debtors  does  not  afTect 

rigiits  of  others  to 1543 

to  general-average  loss. 215'2 

between  insurers,  in  case  of  over-insur- 
ance    2621 

,  between  insurers,  iu  case  of  double  in- 

.       surance 2242 

in  ca.se  of  loss  under  marine  insurance. .   2745 

between  eo-sureties 2848 

Contributory  negligence.    See  Negli- 

GKNCi:. 

carrier  excused  for  passenger's 21SG  n. 

Contro  ler  of  state,  corporation  to  trans- 
mit selection  of  right  of  way  to 478 

duty  where  property  escheats  to  state.  1406 
Controversy  iietweeu  ship-owuers,  how 

dcrer:nined 694 

Conversion,    directed     by    will,    when 

taliea  eil'ect 1 338 

extiiiction  of  lien  by 2010 

of     personal     property,    damages     for 

.      wiongful 3336,  3338 

Conveyances.     See  Conditions;   Cov- 
KNANrs;  Transfer. 
minor  may  make,  subject  to  disafBrm- 

ance 34 

when    person  of    un.sound   mind   may 

make 39 

when  person  of  unsound  mind  cannot 

make 40 

of     lents   and     reversions,    rights     of 

grantee 821 

grantor  of  trust  may  grant  reversion. .  SG4 

interest  in  grantor  of  express  trust. . . .  8GG 

deed,  ownership  of  title 994 

a  transfer  in  writing 1053 

when  takes  effect 1054 

date 1055 

delivery  of,  must  be  absolute 1056 

.  subject  to  condition,  and  iu  possession 

of  third  person 1057 

..  surrendering    or    canceling    does    not 

operate  as  retransfer 1058 

•word.^  <»f  iuheritance  not  necessary  to 

pa.ss  a  fee 1 072 

•  •wh'.'.t  title  passes  by 1083 

;,  by    married    woman    void,    unless    ac- 
knowledged, how 1093 

'iliy  p'r.sons  whose  names  are  changed.  1095,  s. 
-  rec  ird  of,  made  by  public  officers. ,  .  1095,  s. 

.  iadexiug  of  such 1095.  s. 

'  fee-si  in;  lie  titie  presumed  to  pass 1105 

in    fi-'C-simpIe    canies   with    it    subse- 
quently acf;uired  title 1  lOG 

i  how  far  conchisivc  against  grantor. ...  1 107 

,  how  far  conclusive  on  purcljaser 1 107 

by  owner  for  life  or  years 1 103 

on  con  lition  subsetjuent 1 109 

on  condition iprecedent 1110 

'  .yalid  without.iittornnient  of  tenant.  . ,  1111 


eio. 

Conveyances  of  title  to  highway 1112 

wiiat  covenants  included  in 1113 

by  married  woman 1 1 87 

by  heirs  where  will  not  probated 13G4 

defined 1 2 1 .5 

JJeliveri/,  necessary 1 054 

date,  presumption  f)f  time  of 1055 

to  grantee  is  necessarily  absolute.  .  .  10';6 

in  escrow 1057 

surrendering  or  canceling  grant  docs 

not  reconvey 1058 

constructive 10^9 

grr  iuitous  grants  take  effect  immedi- 
ately ;  exception 1 OGO 

/b/-w,  simple..    1092 

by  mariied  woman 1093 

by  attorney  in  fact 1094,  1095 

acknowledgment.      See  Ack^jowlkug- 

ME.NT. 

recording.     See  Recording. 
tax  deeils.     See  Taxes. 

IiUcr/indation,  how  made 1068 

of  limitations 1067 

bjc  aid  of  i-ecitals 1068 

against  grantor 1069 

of  irreconcilable  provisions 1070 

of  "heirs,"  "issue,"  etc 1071 

Conviction  of  felony  ground  for  divorce.       92 
when  divorce  for,  must  be  commenced.      124 
Co-operative  business   corporations, 

act  (letining 283,  s. 

Co-opsrativG  societies.  See  CoRroRA- 
TioNs,  Kinds  of — Relhjioas,  Social, 
aii'l  Jji'iu'volent. 

not  in.suranco  companies 451 

Copartnership.     See  Partnership. 
Corporation  3.    See  also  CoKPOiiATiONS, 
Kin  us  of. 

may  acquire  real  estate 265,  595 

defined 283 

what  are  public  and  private 284 

liow  formed 285 

for  what  purposes  formed 286 

how  may  continue  their  existence 287 

certain,  not  affected  by  the  code 288 

act  defining  co-operative  business 283 

naine  of  instrument  creating 289 

articles  of  incorporation,  what  to  con- 
tain      290 

certain,  to  state  what  additional  facts 

in  articles 291 

corporators,  qualifications  and  acknowl- 
edgment by 292 

prerequisite  to  filing  articles  of  incor- 
poration of  certain 293,  294 

oath  and  payment  of  subscription,  when  295 
articles  of  incorporation  of,  where  filed 

and  certificate 296,  299 

term  of  existence 296 

certified  copy  of  certificate  prima  facis 

evidence  of  contents 297 

who  members  and  who  stockholders. . .  29S 
change  of  principal  place  of  business  of  321 
banks  to  publish  and  record  semi-annual 

statements 321,  s. 

falsj  prospectus  or  statement  of  value. 321,  a. 
to  file  certified  copy  of  articles  iu  county 

where  it  holds  property    299 

misnomer  not  to  invalidate  instrument  357 
dealers  with,  cannot  (piestion  existence  35S 
may  acquire  property  under  "eminent 

ilonuiiu  " 360 

may  own  and  im[)rove  lot  and  house  to 
carry  on  business  in 360 


INDEX. 


633 


8E0. 

Corporations,  consolitlation  of  mining. . .  3G1 

ameiiiinieiit  to  articles  or  certificate  of  3G2 

francliise  may  l>e  sold  under  execution  3SS 
duties  of  [lurchaser  of  francliise..  .389,  390 
sale  of  franchise  not  to  affect  powers 

or  liuijilities 391 

may  redeem  franchise 392 

where   proceedings   under  execution 

may  lie  had  against 393 

how  may  extend  corporate  existence.  401 

proceedings  for  removal  of  officers..  567 

examination  of  books  of 587 

aclaiowledgment  of  instrument  by  . .  1  IGl 

requisites  of  such 1 185 

ccrtiticate  of  such  acknowledgment. .  1 190 

cannot  take  by  will 1275 

other  than  for  profit,  how  formed. . .  593 

Asst\^-smeid  of  Mock,  directors  may  levy  331 

limit  of 332,  3:;3 

order  for  levying 334 

notice  of,  and  form 335 

l)ublication  and  service  of  notice. . . .  336 
deliniiuent  notice,  its  form  and  con- 
tents  337,  3.33 

publication  of  delinquent  notice 339 

Bale  of  stock  to  pay 341 

not  to  be  invalidated 346 

action  to  recover  stock  sold  for  delin- 
quent   347 

By-laws,  adoption  of,  when,  how,  and 

by  whom  ina<le 301 

may  provide  for  annual  election  of 

directors 302 

may  be  made  for  certain  purposes. . .  303 

to  be  recorded 304 

how  amended 304 

to  1)6  adopted  at  first  meeting 306 

Civil   jirori'edrnijs   by  and   cujahint,   for 

removal  of  officers 587 

Debta,  not  to  be  created  beyond  actual 

subsci  ibetl  stock 309 

when  officer  becomes  liable  for 318 

liabdity  of  stockholder  for 322 

J)irector-<,    how   many,    and    qualitica- 

t  ons  of 305 

vacancy  in  f)ffice,  how  filled 30.5 

election  of,  after  incorpoi-ation 306 

election,    how   made,  when,  and  by 

whom 306,  .307 

organization  of  board 303 

nmst  maivc  dividends,  how 309 

liability  of,  in  certain  cases  to  credi- 
tors    309 

removal  of 310 

may  postjione  election,  when 314 

lioi)k  and  notice  of,  by  banks 321 

may  levy  a-^sessments 331 

on    dissolution,    to    be   trustees   for 

creditors 400 

contracts   ti»  relieve   directors   from 

liability 327 

Dlvkli'iiih,    how   made,    and    how   not 

made 309 

on  shares   of   married  women,   how 

p:dd 325 

DUsoliilion,  by  forfeiture  for  non-user..  353 

wliere  provi  led  for 399 

directors  to  be  trustees  for  creditors 

u  pon 400 

Elerliont  of  directors .302 

how  conducted 307 

majority  of  stock  to  be  represented.  312 

wiio  may  vitte .313 

may  be  postponed 314 


Corporations,  Electionn,  complaints  and 

quo  warrantos,  etc.,  regarding...,  315 

Examination,  how  and  by  whom  made..  382 

made  by  legislature 383 

Fortiijn,  to  designate  person  upon  whom 

process  to  be  served 40.3 

penalty  for  failure 403 

Franrhi'^e,  levy  upon  and  sale  of 388 

rights  and  duties  of  purchaser  of,  at 

sale 388,  389 

corporate  powers  after  sale  of 391 

redemption 392 

place  of  sale  of,  under  execution. . . .  393 

Mcctinijs,  when  first  to  be  called 301 

time,  manner,  and  place  to  be  speci- 
fied in  by-laws 303 

by-laws  only  to  be  amemled  at  special  304 

officers  to  be  removed  only  at  general.  310 

justice  of  peace  may  order 311 

majority  must  be  present 312 

who  may  vote 313 

by  consent  to  be  valid 317 

proceedings  at,  to  be  binding 318 

where  held 319 

special,  how  called  in  certain  cases. .  320 
for   extension    and    continuation    of 

corpoiate  existence 401 

Name  to  be  stated  in  articles  of  incor- 
poration    290 

error  of,  in  articles  of  incorporation, 

not  to  invalidate   357 

OJfict'rs,   married  women  may  become.  285 
oatii  of,  on  filing  articles  of  incor- 
poration    295 

by-laws    to    regulate    compensation 

and  duties 303 

directors   to   elect   jiresident,    treas- 
urer, and  secretary 303 

proceedings  for  removal  of 310 

liability  of,  making  false  certificate, 

etc 316 

proceedings  for  removal  of 587 

Orijanization,  dissolution  for  want  of. .  360 

within  what  time  to  be  eirected 300 

Power!*,  defined  and  prescribed 354 

limitation  of 355 

banking  expressly  prohibited 356 

when  forfeited  for  non-user 358 

to  increase  or  dimiiusli  capital  stock.  359 

to  acquire  real  pro])erty 360 

not  alFected  by  sale  of  franchise 391 

of  corporations  not  formed  for  profit.  599 

liecord.-i,  iiow  kept  and  what  to  contain.  377 

"stock and  transfer  "  book 378 

Stock,  amount  to  be  subscribed  before 

incorporating 293 

oath  of  oificer  to  subsciiptiou 295 

capital  stock  of  banking   300 

m.ijority  of  subscribed    necessary  to 

a>loptiou  of  by-laws 301 

two  thinls  of  subscribed,  necessary  to 

amend  by-laws 304 

majority  of  subscribed,  necessary  to 

election 307 

dividend.^  not  to  be  made  from  capital.  309 
debts  not  to  be  incurred  beyond  sub- 

si^ribed 309 

capital    nmst    not   be     increased   or 

diminished  except .309,  359 

on  dissolution,  may  be  divideil 309 

two  thirds  of  subscribed,  necessary  to 

removal  of  ofiicei-s 310 

majority   of   subscribed,    constitutes 

quorum 312 


634 


INDEX. 


8EO. 

Corporations,  Stock,  book  and  notice  of, 

by  banks 321 

certificates  of,  how  issued 323 

transfer  of  shares  of 324 

conipellii)g  transfer  of 324  n. 

enjfiiniug  transfer  of 324  n. 

transfer  of  shares  of  married  women.  325 
transfer  of  shares  of  non-resiilents. . .  326 
act  itn  posting  tax  on  issneof  certiticate.327,s. 
liypothricated  shares,  how  voted....  322 
when  acquires  jurisdiction  over  cer- 
tain    340 

sale  of  delinquent 341 

may  buy  its  own,  when 343 

disposition  of,   where  corporation   is 

purcliaser 344 

action  for  recovery  of,  sold  for  delin- 
quent assessments 347 

Storkholilerx,  defined 29S 

entitled  to  how  many  votes 301 

notice  to  be  given  to,  of  meetings. , .  310 

act  to  protect 321 

w^ho  has  hypothecated  stock 322 

liability  of,  for  debts  of  corporation.  322 
Corporations,    kinds  of,    Agricultural 
fair,   may   acquire  and   hold  how 

much  real  estate 620 

not   to  contract  debts  in  excess  of 

amount  on  hand,  except 621 

not  for  profit ....    622 

may  fix  fee,  etc.,  for  membership. . .  622 
Art,     married    women     may     become 

incorporators 285  n. 

BanJcing,  capital  stock  of 300 

semi-annual  statements 321,  s. 

Beneficial,  how  formed 593,  s. 

Benevolent,  married  women  may  become 

corporators 285  n. 

not  insurance  companies 451 

See  infra,  Relljious,  Social,  and  Ben- 
evident. 

Bonrd-i  of  trade  may  be  formed 285 

Bridije,  Jerri/,  ivharf,  chute,  and  jner, 
to  obtain    license  from   board   of 

supervisors 528 

in  what  coutingencies  corporate  ex- 
istence ceases 523 

annual  report  of 530 

damages,  for  failure  to  report 630 

this   title   applies    to    bridge,    etc., 

owned  Ijy  natural  persons 531 

Buildiuij.     See  Laud  and  Building. 
Canal.     See  Water  and  Canal. 
Cemetery,  how  much  laud  may  be  held, 

and  ho.v  much  disposed  of 608 

who   meml)crs   eligible  to  vote  and 

hold  ollice 609 

may  hold  what  personal  property. . .  610 

such  surplus,  how  disposed  of 610 

may  issue  bonds  to  pay  for  grounds  611 

proceeds,  liow  disposed  of 611 

may  take  and  hold  property  or  use 

income  tliereof,  how 612 

interments  in  lot  and  effect  thereof  013 

transfer  of  right  made  how 613 

lot-owners   previous   to  purchase  to 

be  members 614 

Chamb'-rs  ofcommerre  may  be  formed . .  286,  s. 
Colleijes,  incorporation,  and    power    of 

trustees  of 049-651 

Co-operatire  l)n--<in''sx,  defined 283,  s. 

Dock.     See  Bridije,  etc. 
Educational,  mairiiid  women  may  be- 
come corporators 285 


uo. 
Corporations,  kinds  of,  Educational,  in- 
corporation and  powers  of  trustees 

of 049-651 

Ferry.     See  Bridr/e,  Ferry,  etc. 
Foreign,  to  designate  person  upon  whom 

process  may  be  served 403 

Gas,  to  obtain  privilege  from  city  or 

town .•••:••  628 

to  supply  gas  on  written  application  629 

damages  for  refusal 629 

when  may  refuse  to  supply 630 

agent  of  may  inspect  meters 631 

when   persons   neglect    to   pay,    gas 

niay  be  shut  off 632 

wrongful  shutting  off  of  gas 632  n. 

Homesteadf  time  of  corporate  exist- 
ence.    557,  566, 8. 

by-laws  to  specify  what 658 

by-laws  to  be  furnished  members  on 

demand 558 

advertisement  and  sale  of  delinquent 

shares 559 

may  borrow  and  loan  funds,  and  for 

what  time 660 

minors  and  married  women  may  hold 

stock 561 

limitation  of  speculation  in  lands. .  .  562 
forfeiture    for     speculation     beyond 

certain  extent 562 

when  corporate  existence  terminates  563 

payment  of  premiums 504 

annual  report 565 

publication,  where  made 56S 

extension  of  time  for,  and  bow  exist- 
ence continued 566,  s. 

Insurance  in  general,  corporation  may 

be  formed 286 

subscription  to  capital  stock 414 

purchase  and  conveyance  of  real  es- 
tate   415 

policies,   how  issued  and  by  whom 

signed 416 

dividends,   of    what  and   when   de- 
clared   417 

directors  liable  for   loss  in   certain 

cases 418 

capital  stock 419 

mutual  protective  associations  not . .  451 

same 420 

Insurance,  fire  and   marine,  payment 

of  subscription 424 

certificate  of  paid-up  capital   stock 

to  be  filed 425 

property  which  may  be  insured  ....  426 

funds  may  be  invested,  how 427 

rate  of  risk 428 

amounts  to  be  reserved  before  mak- 
ing dividends    429,  430 

power  to  equip  aud  employ  men  as 

fire  patrol 430 

privileges  of  fire-patrol  corps , .  430 

costs  and   expenses   of    maintaining 

organization,  how  assessed 430 

dividends 429,  431 

Insurance,  mutual  life,  health,  and 
accident,  capital  stock  may  be  in- 
vested, how 427 

dividends  of,  companies 429 

capital  stock 419,  437 

guan.ntee  fund 437 

of  what  guarantee  fund  to  consist. . .  438 

what  constitutes 439 

deficiency  in  capital  stock    419 

declaration  of  fixed  capital  to  be  filed.  440 


INDEX. 


639 


Corporationg,  kinds  of,  Imnranre,  mu-' 
tiled  life,  heall/i,  and  urculi'nl,  guar- 
antee notes  and  interest,  how  dis- 
posed of   441 

insiued  to  Ijc  entitled  to  vote 442 

may  invest  in  wliat  securities 443 

number  of  directors  may  be  altered, 

liow 444 

limitation  to  holding  of  stock 445 

premiums,  liow  payable 446 

to   furnish    insurance    commissioner 

certain  facts 447 

no   stamp   recjuiied    on   contract   of 

accident  insurance 448 

valuation  of  jiolicies 449 

policy  to  contain  wliat  evidence. . . ,  450 

payment  and  cancellation 401 

act  for  incorporation  of  mutual  insur- 
ance companies 452,  s. 

Land  and  buildimj,  liow  organized  . . .  G39 

may  botrow  money 040 

powers  and  object  of 641 

may  insure  the  lives  of  members  and 

debtors 642 

may  own  what  real  estate 643 

by-laws  may  provide,  what G44 

annual  rejjort 645 

consolidation  and  transfer  of   busi- 
ness    647 

Literary,  married  women  may  become 

cor,>orators     285  n. 

Mechanics  insldnte  may  be  formed.. .  .280,  s. 
Milling,  penalty  for  issuing  false  pros- 
pectus   321,  s. 

consolidation  of 301 

removal  of  principal  office  provided 

for C84 

directors  to  file  certificate  of  what, 

whore 585 

transfer  agencies 586 

stock  issued  at  transfer  agencies ....  587 
proceedings  for  removal  of  officers     587,  s. 

protection  of  stock liolders  in 587,  s. 

directors  not  to  sell  or  lease  mine.  .587,  a. 
Mutual,    beneficial,     and    relief,    how 

formed 593,  s. 

not  insurance  companies 451 

Pier.     See  Dndije,  ferry,  etc. 
Protective  association,  act  for  formation 

of  286,  s. 

Railroad,  articles  of  incorporation  must 

state  what 291 

prerequisites  to  filini^  articles 294,  295 

directors  to  be  elccteil,  when 454 

additional    provision   in    assessment 

and  transfer  of  stock 455 

may  borrow  money  and  issue  bonds.  450 

to  provide  sinking  fund  to  pay  bonds  4.')7 

capital  stock  to  lie  fi.xed 453 

certilicate  of  payment  of  fixed  capital 

stock 459 

enumeration  of  powers 405 

map  and  profile  to  be  filed 400 

may  cliange  line  of 407 

forfeiture  of  franchise 408 

crossings  and  intersections 465  n.,  409 

condemnation 409 

not  to  use  public  streets,  etc.,  except  470 
not  to  ciiarge  fare  to  and  from  points 

in  a  city 471 

when  crossing  liighways,  etc.,   how 

acquires  ri^ht  of  way 472 

may  consolidate 473 

proceedings  to  consolidate 473 


no. 

Corporations,  kinds  of,  Tiailroad,  state 

lands  granted  for  us'i  of 474 

such  grant  not  to  embrace  town  lots.     475 
certain  fixtures  may  be  taken  from 

realty 476 

lands  to  revert  to  state,  when 477 

requisites  on  selectiim  of  rigbtof  way     478 
check  to  be  affixed  to  all  b;igg;igo...     479 

damage  for  refusing  so  to  do 479 

annual  report  to  be  veriiied 480 

form  of  report 480 

duties  of .     481 

to  pay  damages  for  refusing  transpor- 
tation      482 

to  furnish  accommodations  for  pas- 
sengers       483 

to  post  regulations 484 

not  responsible  for  injuries  incurred 

by  violating  rules 484 

to  ])ay  damages 485 

not  liable  in  certain  cases ^.     485 

may  recover  damages,  when 485 

regulations  of  trains 486 

penalty  for  violating  such 486 

conductor    may     eject     passengers, 

when 487 

officers  to  wear  badge 483 

rates  of  charges 489 

passenger  tickets,   how   issued,  and 

good  for  six  months 490 

character  of  iron  to  i>e  used 491 

freights  and  fares  bill 491,  s. 

commissioners  and  their  duties 491,  s. 

extortion  and  discrimination 491,  s. 

stop-over  tickets 491 

may  complete  road 491,  s. 

equal  terms    for    all    railway    com- 
panies   491 ,  8. 

liability   for  fires 2168  n. 

act     compelling    the     operating    of 

roads 491,  3. 

Railroad,  xtreet,  may  be  formed 286 

articles  of  incorporation  to  state  what    291 

prerequisites  to  liling  articles 294 

authority  to  lay  track 497 

restrictions  as  to  granting  right  of 

•way 493 

two  maj'  use  same  street,  when 499 

rate  of  fare 501 ,  501,  s. 

construction  and  recjuisites  of    con- 
veyances       501 

rate  of  speed 501 

must  commence  construction  of  road 

when 502 

efTect  of  failing  to  do  so 502 

cities  and  towns  may  m.ke  rules  to 

govern 503 

penalty  for  overcharging 504 

to    provide    and    furuish    passenger 

tickets 505 

penalty 505 

trial,  proof,  and  limitation 506 

city  or  town  to  preserve  certain  rights     507 

license  to  be  paid 60S 

track  for  grading  purposes 509 

general  provisions  applicablei . . .  .510,  511 

liability  for  killing  chihl 2186  n. 

Relief,  how  formed 601 

not  insurance  companies 451 

Reli'jioiift,  Hoeial,  and  henei^olerii,  mar- 
ried women  may  become  corpora- 
tors     285 

not  insurance  companies 451 

how  formed 693 


636 


liTOEX. 


Corporations,  kinds  of,  BeVgiom,  social, 
ami  henorolfiit,  articles  of  incorpo- 
ration to  state  what 694 

may  liold  what  amount  of  j)roperty     6y5 
orpliaii  asyluma  may  hold  how  much 

liniperty 595 

Masons,  0(M  Fellows,  Pioneers,  etc., 

may  hold  liow  much 596 

annul!  report 597 

may,  by  order  of  court,  sell  or  mort- 
gage property 593 

proreediiiLjs  thereon 698 

may  pro\idc  wiiat  iu  by  daws 599 

mendiers  admitted    after    incorpora- 
tion      COO 

membership  not  transferable GOl 

religiinis,  re<|uiriug  administration  of 

temporalities 602 

act  relating  to  mutual,  beneficial,  and 

relief C02 

religious  societies  may  incorporate. .     003 
Road,    articles  of   incorporation    nmst 

state  what '. 291 

prere( pi i sites  to  filing  articles 294 

SaviiKjs  a  id   loan,  book  and   notice  of 

directors  and  stockholders 321 

Bemi-aniiual  statements 321,  s, 

may  loan  money,  on  what  terms....     571 
capital  stock  and  riglits  and    privi- 
leges thereof 572 

dividends  to  be  from  surplus 573 

to   contract    no  liability   except   for 

deposits 573 

property  which   may  be  owned  by, 

and  dispo^^ili  of  such 574 

restrictions  on  pui'chasers 57.4 

married  women  and  minors  may  own 

stock  in 575 

Bpecial  certificates 576 

may  issue  transferable  certificates  of 

<lepo3it 576 

to  provide  reserve  fund  for  payment 

of  losses 577 

prohibition  on  officer  of,  and  wliat 

vacates  oflice 573 

ccMistruction     of      phrase      **  create 

•lebts" 579 

surviving  husband  or  wife  or  next  of 
kin  may  collect  deposit,  when. .  ..579,  3 
Social.     See  JidiijioiDi,  Social,  and  Be- 

UPVO'fUf.. 

Stork- nil t'liKj,  may  be  formed 2SG 

Street  railrondi.     Sec  Railroad:^,  street. 
Stiriti/,  incorporations  forgiving  i)oiid3.2SG,  s. 
Te(eijm/ih,    articles     of     incorporation 

must  state  what 201 

prerei|iiisites  to  tiling  articles 294 

ri,-;lit  of  way  along  water,  roads,  and 

liitjhways 530 

lial)ility  for  injuring  telegraph   prop- 
erty       537 

liability  for  malicious  injury  to  prop- 
erty      533 

conclitions  on  which  damages  to  sub- 
aqueous  cable  niay  be  recovered. . .     639 

duty  to  .send  dispatch 540 

may  <U.spf)se  of  certain  riglits 641 

rates  of  charges  to  be  fixed  and  pub- 
lished      542 

Wayonrond,   articles  of   incorporation 

must  state  what 291 

prerecpiisites  to  filing  articles 294 

three  commissioners  to  a«t  with  sur- 
veyors       612 


no. 

Corporations,  kinds  of,  Wnrfon-roa(t, 
survey  and  map  to  be  filed  and  ap- 
proved      513 

tolls,  etc.,  to  be  collected 614 

penalty  for  taking  unlawful  tolls. . . .     514 
no  toll  to  be  charged  on  public  high- 
ways      515 

rates  of  toll  to  be  posted  over  gate. .     616 
toll  gatherer  may  detain  person  un- 
til t.ill  paid 517 

toll  gatherer  not  to  detain  person  un- 
necessarily       618 

penalty  for  avoiding  tolls 519 

penalty  for  tresjjass  on  property  of . .     520 
when  capital  repaid,  tolls  to  be  re- 
duced       521 

may  mortgage  and  hypothecate  prop- 
erty      522 

this  title  to  apply  to  roads  owned  by 

natual  persons 523 

Water  and  canal,  may  obtain  contract 

to  supply  city  or  town 543 

municipal  coi'porations  to  obtain  pub- 
lic water-works 543,3 

supervisors  fixing  rates  for  water  sup- 

jilied  to  towns 548,  s.,  543  n. 

duties 549 

i-atcs  to  be  fixed  by  commissioners  . .     549 

right  of  way 550 

to  builil  and  keep  bridges  in  repair. .     551 
right  to  water  to  irrigate  lands  sold 

by  water  or  irrigating  company.    .     552 
act   regulating   sale   and    control   of 
water  for  irrigating  purposes  . . .  .552,.  B. 
Wh"  rf.     See  /Iridi/e,  Ferry,  etc. 

Costs  of  action  for  divorce 137 

of  appraisement  of  lioniestead 1259 

of  transportation  of  personal  property 

to  place  of  delivery 1755 

depositor   must    indenmify   depositary 

for  certain 1833 

liorrowf^r  to  bear  certain 1892 

hirer  to  bear  certain 1956 

voluntary  depositary  may   deduct   for 

certain 2078 

trustee  entitled  to  repayment  for  cer- 
tain   2273 

partner  to  be  indemnified  fof  certain..    2412 

insurer  liable  for  certain 2708,  2743 

indemnity  against 2778 

Co-siire'JBS.     See  Spretv. 

CD-tenaii  :s.     See  Tena.nt.s  in  Common. 

Cotemiinous  owners,  rights  of,  to  lateral 

and  subjacent  support 832 

rights  of,  to  line  trees 834 

mutual  obligations  of 841 

County,  mairiage   settlement   to  be  re- 
corded in  what 179 

mortgage   of   personal   property   to  be 

recorded  in  wliat 2959 

mortgage  property   in   transit  deemed 

located  in  what 29G0 

property   of    common   carrier   deemed 

to  be  in  what 2961 

Coupons,  negotiability  of 3262  n. 

Courtesy,  estate  by,  abolished 173 

Courts,  siiperior,  action  to  affirm  unsol- 
emn izeil  marriage 78 

to  whom  to  award  custody  of  child  of 

annulled  marriage 85 

where   tli voice   denied,  may  grant  re- 
lief for  wife 136,  137 

may  award  custody  of  cliild 138 

may  allow  wife  alimony,  when 139 


INDEX. 


637 


BEO. 

Couits,  Btiperior,  may  require  security 

for  alimony    140 

shall  resort  to  what  property  in  provid- 
ing for  ^^  ife 141 

when  may  witiihold  allowance 142 

to  determine  legitim;icy  of  child,  when  145 
to  make  order  for  division  of  jn'operty 

on  divorce 146 

may  award  exclusive  control    of  child 

to  either  ]):irent,  on  proper  showing     109 
may  direct  allowance   for  support  of 

child 201 

appointment  of  guardian  by 243,  244 

jurisdiction  of,  appointing  guardian. . .     245 

rules,  in  appoiniing  guardian 24G 

guardian  under  direction  of 251 

consenting  to  apprenticeship  of  child   .     265 
judge  of,  may  hear  and  determine  com- 
plaints of  coritoration  elections 315 

action  in,  to  recover  possession  of  prop- 
erty      793 

to    settle    controversy   between    ship- 
owners       964 

atlorament  of   tenant   to   stranger   by 

jndgiiient  of,  valid 194S 

when  trustor 2252 

Low,  may  allow  satisfaction  of  trustee's 

adverse  trust 2263 

discretionary   power    of    trustee    con- 
trolled by 2269 

trustee  may  be  discharged  by 22S2,  2283 

wiien  may  appoint  trustee 2287 

when  l)ecome3  trustee 2289 

may  reduce  rate  of  interest  on  bottomry, 

wlieii •,•••.•••: ^'^■■~>  3039 

CovcUcUats,  none  implied  in  any  grant, 

except 1113 

■when  run  with  land 1 IGO 

wluxt  run  with  land 14G1-NG3 

what  run  with  land,  when  assigns  named  1 464 

who  bound  by 14G5 

who  not  bound  by 14G0 

apportionment  of , 1467 

what  i-cquired  by  executory  contract  of 

sale 1733 

for  quiet  possession  implied  in  hiring  of 

property    1927,   1955 

authority  to  agent  to  sell  and  convey 

includes 2324 

damage  j  for  breacli  of  certain 3.")0 1 

Credit,'  sales  by  factor 20J3 

to  agent  exo;iera;e3  principal,  when . , .   2335 
agent  accepting  personal,  liable  as  prin- 
cipal    2343 

auctioneer   not   to  give,  except   when 

usual 23G2 

factor  may  give,  except  wlien  unusual.  2.)6S 
of  ship-owner,  master  may  bori'ow  on.   2374 

ship's  numagcr  cannot  borrow  on 2389 

Creditor.     See  Asskjnmknt;  Debtor. 

trusts  for  benefit  of 857 

trust  fund,  how  far  liable  to 859 

trust,  when  absolute,  in  favor  of  sub- 

sc(piont 869 

gift  causa  mortis  treated  as  legacy,  wlien  1 1 53 
transfer  for  benefit  of,  to  be  recordctl. .  1164 
aj)praisenient  of  homestead  on  petition 

of  judgment 1245 

when  to  pay  expenses  of  appraisement 

of  homes' cad 1259 

competent  witness  to  will 12SI 

acceptance  by,  r.ccessary  to  satisfaction  1473 
performance  of  obligation  of  cue  of  sev- 
eral joint 1473 


SEO. 

Creditor,  performance  in  manner  directed 

by 1476 

application  of  performance  by 1479 

oti'er  of  jiei  foi'mance  to 14S8 

offer  of  performance  at  place  appointed 

by 1489 

offer  of  performance  so  as  to  benefit. . .    1493 

receipt  by 1499 

objections  to  offer  of  performance  ....  1501 
title  of  thing  offered  passes  to,  wlien. .    1502 

obligation  of,  as  to  tiling  ofiered 150.5 

performance  excused  ii  prevented  by..  1511 
effect  of  prevention  of  performance  Ijy.  1512 
efl'ect  of  refusal  to  accept  performance.    1515 

acceptance  of  accord 1 523 

acceptance  of  part  performance. ......    1524 

novai  ion,  liow 1531 

may  rescind  novation,  when 1534 

release  by   1 54 1 

release  by,  effect  of 1542 

partner   cannot  make  assignment   for 

benefit  of 2430 

lial)ility  of  partner  after  dissolution  to.  2453 

special  ]iartner  may  be 2491 

special  partner  postponed  to  otlier. . . .   2491 

preference  to,  iu  insolvency,  void 2496 

special,  when  liable  as  general  partner 

to 2502 

guarantor  liable  to,  when 2S07 

guarantor,  wlien  exonerated 2S19 

guarantor  not  exonerated  by  voidable 

promise  of 2890 

guarantor,  wlien  partially  exonerated.  2822 
gunraiitiir  not  exonerated  by  mere  delay 

of '.  2823 

guarantor  with  indemnity,   when  not 

exonerated 2824 

guarantor  not  exonerated  by  discharge 

of  debtor  without  act  of 2825 

surety,  how  far  liable 2833 

surety  exonerated  by  what  act  or  omis- 
sion of 2840 

surety  exonerated   by  refusal    to  sue, 

wlien 2845 

surety  may  enforce  remc<lies  of.  when.  2845 
surety  entitled   to  securities  held    by, 

wlien 2849 

entitleil  to  benefit  of  surety's  securities  2854 
must  resort  to  diil'erent  funds,  in  what 

order 2899 

lien  void  against,  when 2913 

mortgage  of  personal  puperty,  when 

void  against 2957 

of  mortgagor,  retnedy  of 2963 

of  mortgagee,  remedy  of 2903 

contracts  of  debtor  valid  against,  wlien  3431 

debtor  may  jirefcr,  wlicu 3432 

certain  transfers  of  debtor  void  against. 

3139,  .3440 

can  avoid  act  of  debtor,  wlien 3441 

transfer  wit-hont  value,  not  necessarily 

void  against 3142 

assignineiit  fur  benefit  of 3149 

failing  to  record  assignment 3465 

assignment  voiil  against,  wln-ii 3457 

may  rci|uirc  assignee  to  account 3469 

Crops,  tenant's  right  to  harvest 819 

growing,  subject  of  mortgage. ..  .2!)55,  2972 
Cruel-y,  extreme,  ground  for  divorce. . .       92 

defineil 94 

separation  on  account  of,  who  commits 

desertion 93 

disposition  of  common  property  iu  di- 
vorces granted  for 147 


638 


mD15X, 


BEO. 

Cruelty,  groiinrl  for  annulling  indentare 

of  ap|)!entices!iip 276 

Current  mo  ey.  Ijorrower  must  repay  in  1913 
Custody  of  child.      See   Parknt  and 

CnsLu. 
Damages.     See  Exemplary   Damages; 
Penal  Damacjes. 
minors  and   perilous  of  unsound  mind 

not  lialjle 41 

railroad  corporations  liable  for  certain.  485 
when  owner  of  ship  cannot  sue  for,  for 

collision 971 

willful  trespasser  liable  for 1033 

contract  lixin<^,  void 1G70 

may  be  liqunlated,  when 1G71 

depositors  must  indemnify  depositary 

for  certain ] S.33 

liability  of  depositary 1636 

liability  of  tinder  of  lost  property 1SG5 

liability  of  Under  for  certain 1893 

indemnity  against  2778 

for  refusal  to  satisfy  mortgage 2941 

on  dishonor  of  foreign  bill  3234,  3237 

defined 32S1 

may  cover  future  loss,  when 3283 

interest  by  way  of 32S7-3290 

exemplary   3J94 

must  be  clearly  ascertainable 330! 

for  payment  of  money 3.302 

for  biTach  of  covenant 3304 

for  breach  of  agreement  to  convey  real 

property 3306 

for  breach  of  agreement  to  purchase  real 

property 3307 

for  breach  of  agreement  to  sell  personal 

property 3308,  3309 

for  breacli  of  agreement  to  pay  for  per- 
sonal property 3310 

for  breach  of  agreement  to  buy  personal 

proper;;y 3311 

for  breach  of  warranty  of  title  to  per- 
sonal property 3312 

for  breach  of  warranty  of  quality  of 

personal  property   331 3 

for  breach  of  carrier  to  accept  freight.  .3315 
for  breach  of  carrier  to  deliver  freiglit.  3316 
for  breach  of  carrier  to  deliver  mes- 

sages  2209 

for  breach  of  warranty  of  agent's  au- 
thority   331 8 

for  breacli  of  i)romisc  of  marriage 3319 

for  wrongs  in  general 3:533 

for  wrongful  occupation  of  real  property  3334 

for  holding  over  real  property 33.!5 

for  conversion  of  personal  property 3336 

for  conversion  in  favor  of  lienor 3-338 

for  seduction 3.1.39 

for  injuries  to  animals 3340 

protection  of  sheep  against  dogs 3341 

for  tenant's  failure  to  <|uit  after  notice.  3344 

for  tenant  holding  over 334.") 

for  injuries  to  trees S346 

for  injuries  inflicted  in  duel 2347,  3;;4S 

value  of  property,  in  favor  of  seller. . . .   33.>3 
value  of  property,  in  favor  of  buyer. . .  3354 
value  of  property,  peculiar,   when  al- 
lowed     3355 

value  of  thing  in  action 33.">6 

to  be  reasonable 3358 

nominal 3300 

for  delay,  must  be  paid  on  redemption 

from  lien 2905 

difficulty  of  ascertaining,   ground  for 
8peci£c  relief 3380 


•BO. 

Dam?.ges,  inadequacy  of,  ground  of  spe- 
cific relief  3380,  3384 

Date,  of  delivery  of  grant,  presumption 

of 1055 

not    necessary,    in    negotiable    instru- 
ment   3091 

Daughter,    right  of    protection  against 

seduction  of 49 

Days,  what,  holidays 7,        8 

what,  business 9 

whitt,  counted  in  computing  time 10 

fractions  of,  when  disregarded 14 

of  t'raee,  not  allowed 181 

Death  of  m  Inor,  personal  representatives 

may  disaffirm  contract 35 

dissolves  marriage 90 

of    parent    leaving   child   unprovided, 

effect  of 205 

of  joint  guardian 252 

without  heirs,  etc..  defined 1071 

gift  in  view  of,  defined 1049 

g:ft,  when  presumed  in  view  of 1 150 

gift  in  view  of,  revocation 1 151 

gift  in  view  of,  effect  of  will  upon 1 1.52 

gift  in  view  of,  when  treated  as  legacy  1153 
of  husband  and  wife,  eflcct  on   home- 
stead     1265 

of   devisee  or  legatee   before   testator, 

effect  of 1310,  1343 

of  devisee  before  testator 1344 

of  heir  advanced  to,  before  devisor. . . .   1399 
distribution  of  common  property  on,  of 

wife 1401 

distribution  of  conmion  property  on,  of 

husband 1402 

of  seamen,  who  entitled  to  wages 2062 

of  maker  of  instrument  bearing  nomi- 
nal date 3094 

notice  of  dishonor  in  ignorance  of,  of 

indorser 3146 

Debtor.     See  Assignment;  Creditor. 

jjcrformance  must  be  made  by  or  for. .   1473 

performance  by  joint 1474 

effect  of   directions  to,  as  to  perform- 
ance, by  creditors 1476 

application  of  general  performance  by .    1479 

oiler  of  performance  by  or  for 1487 

may  require  receipt 1499 

rights  of,  upon  prevention  of  perform- 
ance   151 2-1514 

novation  by  substituting  new  for  old, 

how 1531 

release  of,  by  creditor 1541 

release  of,  by  creditor,  effect 1543 

joint,  release  of  several 1543 

fraudulent  misrepresentation  of,  as  to 

pledge 2999 

may  pay  or  secure  one  creditor  in  pref- 

eience  to  another 3432 

certain  transfers  void  against  creditors  3431 

when  creditor  can  avoid  aa,t  of 3441 

insolvent,    may   assign   for   benefit  of 

creditors,  wlicn 3449 

insolvent,  defined 3450 

Debts,  earnings  of  wife  not  liable  for,  of 

husljand , 168 

husband  not  liable  for  antenuptial,  of 

wife    170 

separate  property  of  wife  not  liable  for, 

of  husband 171 

Beparate  pioixjrty  pf  vriSu  \ta\Ae  for  her 

own 171 

corporations  not  to  crcatje,  beyond  act- 
ual subscribed  stock 309 


IKDEX. 


639 


Debts,  when  officer  of  corporation  liable 

for 316 

liability  of  Btockhokler  for,  ot  corpora- 
tion       322 

incliuleil  in  word  "  incnmbi-ances  "...    11 14 

honifstfail  liable  for  certain 1241 

property  of  intestate,  how  disposed  of 

in  payment  of 13jS 

property  of  testator,  how  disposed  of 

in  payment  of 1 359 

legacies,  liow  charged  with 1.S60,   13GI 

lial)ility  of  beneticiaries  for  testator's. .    1377 
how  extinguished  by  otfer  of  payment.   loOO 

accord  of  liquidated 1 524 

agrocmeiit  to  answer  for,  of  another. . .    1624 
partner  may  require  partnership  prop- 
erty to  be  applied  to  payment  of 2403 

partner  acting  in  liquidation  may  col- 
lect, compromise,  etc 2401 

liability  of  contribution  of  special  part- 
ner for 2501 

special   partner  not  personally  liable, 

when 2501 

pledgee  cannot  sell  certain  pledged  evi- 
dences of 3006 

Deceit  renders  contract  voidable 15(j7 

an  c>'sential  clement  of  fraud 1572 

when  actioniible 1709,   1710 

upon  tlic  public 1711 

Deck,  freight  not  to  be  stowed  on 2117 

things  stowed  on,  when  entitled  to  gen- 
eral average 21 54 

Declarations  of  marriage,  how  made.  .  .75,  76 
of  marriage,  to  be  acknowledged  and 

recorded 77 

of  marriage,  a'.-tion  to  compel 78 

of  trust,  eirect  of  omitting  in  grant. . . .     8G9 
of  trust,  act  in  contravention  to,  void.     870 

of  abandonment  of  homestead 1243 

of  abandonmentot  homestead,  from  what 

time  cirectual 1244 

of  iiomestead,  liow  acknowledged  1262,   1266 
of  homestead,  what  to  contain.. . .  1263,   1267 

of  homestead,  to  be  recorded 1264,  1263 

of   homestead,    effect  of   filing  for  rec- 
ord  ; 1265,  1209 

Buch  to  bu  recorded 1 268 

of  trust,  delined 2253 

of  trust,  trustee  must  obey 2258 

Deeds    as   conveyances.      See    Coxvey- 

ANCES. 

Defamation  right  of  protection  from..  43 

ho  V.'  effected 44 

Default,  divorce  not  to  be  granted  by..  130 
coUioion   from  breach  of  rules  impliea 

willful 972 

egreenient  to  answer  for,  of  another, 

must  be  in  writing 1624 

Defects  in  certificate  of  acknowledg- 
ment, action  to  remedy 1202 

in  dLScriptiuu  in  will,  effect 1340 

implied     warranty    of     manufacturer 

against  latent 1769 

depositor  nmst  indemnify  depositary 

for  dama^ies  arising  out  of 1833 

lender  must    indemnify  borrower  for 

damages  arising  out  of 1893 

in  notice  of  loss  under  insurance,  how 

waived 2635 

Defin'tiong,  abandonment 27 16 

acceptance  of  offer 1584 

accejjtance  of  bill 3 1 93 

accord 1521 

adult 27 


BEO. 

Definitions,  adultery 93 

advancement 397 

agency 2295 

actual 2299 

ostensible 2300 

agent 2295 

special 2297 

general 2297 

agreement  for  sale 1 726 

to  sell 1727 

to  buy 1723 

to  sell  and  buy 1729 

allonge 3110 

annuity 1.357 

appurtenances 662 

articles  of  incorporation 2S9 

auction 1792 

authority,  actual 2316 

ostensible 23 1 7 

average,  general 2148 

bail 2780 

beneficiary 2218 

bill  of  exchange 3171 

inland 3224 

foreign 3224 

bill  of  lading 2126 

bottonny 3017 

business  days 9 

care 15,  16  n. 

carrier,  marine 2085 

inland 2087 

common 2168 

charter-party 1 959 

chattel,  real 765 

interest  765 

check 3254 

collusion 114 

common  carrier 2168 

community  property 164,  6S7 

concealment 2561 

condition  precedent 1346 

subsequent 1349 

concurrent 1437 

conditional  devise  or  legacy 1345 

obligation 1434 

condonation 115 

connivance 112 

consiileration,  good 1605 

consignee 2110 

consignor 2110 

contract 1549 

executed 1661 

executory 1661 

express 1620 

implied 1621 

conveyance 1215 

corporation 2S3 

public 284 

private 2S4 

articles  of  incorporation 2S9 

creditor •  3430 

cruelty,  extreme 94 

damages 328 1 

debtor 14,  3429 

deceit 1710 

declaration  of  trust 22.53 

delivery,  constructive 1059 

deposit 1813 

voluntary 1814 

involuntary 1815 

for  keeping 1817 

for  exchange 1818 

gratuitous 1844 

for  hire 1851 


640 


INDEX. 


BEO. 

Definitions,  depositary 1814 

depositor 1814 

desertion 95,  96 

detriment 32S2 

deviation 2G04 

discrimination,  unjust  by  railroad. . .     491 

diligence 151 6  n. 

dishonor 3141 

divorce 491 

dominant  tenement 803 

drawee 3171 

drawer 3171 

duress 1 JG9 

easements 801 

employee 19G5 

employer 1 9G5 

employment 1965 

escrow 1057 

estates  in  real  property 761 

in  fee 762 

of  freehold 765 

exchange 1804 

extortion  by  railroad 491 

factor 2026,  23G7 

fixtures 060 

fraud,  actual 1572 

constructive 1573 

freeholds ■ 765 

freight 2110 

freightage 2110 

gift 1146 

in  view  of  death 1149 

good  faith   14  n. 

good-will 992 

grant 1053 

guaranty 2787 

continuing 2814 

guardiim 236 

general 239 

speci  il 240 

head  of  tlie  family 1261 

habitual  intemperance 106 

hiring 1925 

holidays 7 

homestead 1237 

impossibility 1597 

income 748 

incumbrances 1114 

indemnity 2772 

indorsee  in  due  course  3123 

indorsement   3 108 

general 3112 

special 31 '3 

indorscr 3 1 08 

insolvency 3150 

insurable  interest 2516 

insurance 2527 

double 2G41 

marine 2655 

insnrcil 2538 

insurer 2533 

intemperance,  habitual 106 

interest  <ff  money 1915 

compound 14 

interests,  joint 683 

partnoi-sliip 6S4 

in  common 685 

present 689 

future 690 

perpetual 691 

limited 692 

vested 094 

issue 1 07 1 

contiugeut ^ 095 


RO, 

Definitions,  jettison 214S 

laud 059 

lajise  of  time 125 

legacy,  specific 1357 

demonstrative 1357 

residuary 1 357 

general 1357 

letter  of  credit 2858 

gtneral 2861 

special 2861 

libel 45 

lieu 2872 

general 2874 

special 2375 

loan  for  use 1 884 

for  exciiange 1902 

of  moufy 1912 

loss,  total 2703 

partial 2702 

actual  total 2704 

constructive  total 2705 

lug-age 2181 

manager  of  ship 2 1 70 

managing  owner 2170 

marriage 55 

master 2009 

mate 2048 

maturity,  apparent 3 132 

menace 1570 

minor 25 

mistake 1 576 

of  fact 1577 

of  law 1 573 

of  foreign  law 1579 

month 14 

mortLiage 2920 

mutual  consent 1.5S0 

navigation,  loreign 9G2 

domestic 902 

neglect,  willful 105 

negotiable  instrument 3087 

notice,  actual 18 

constructi  ve 18 

novation 1 530 

nuisance 3479 

public 3  J80 

private .3481 

oath 14 

object  of  contract 1595 

obligation 1427 

conditional 1 134 

ownership 654 

absolute 079 

f)ualilied 080 

several 082 

joint GS3 

partnership 084 

in  common 685 

partnershi p 2395 

general 2424 

special 2478 

partnersliip  jiroperty 2401 

payiuent 1478 

perils  of  tlie  sea 2199 

poison 14 

peisonal  property 14,  063 

pledge 29S6 

pledgeholder 2f)93 

policy  of  insurance 2588 

open 259.5 

val lied 2596 

running 2597 

possibility   1597 

preveutivu  relief 33G3 


INDEX. 


641 


•EO. 

Definitions,  principal 2'29o 

price 1721 

privileged  communication 47 

privileged  piil)lication 47 

promissory  uote 3244 

property 14,  (i'A 

real 14 

personal 14,  663 

real 14 

recrimination 1 22 

reinsurance 264rj 

renuiindcr 769 

respondentia 3'}3(j 

reversion 703 

Bale 1721 

sale  by  auction '  7112 

eatisfaction 1523 

seal 14 

seamen 2049 

seaworthiness 2GS2 

servant 2000 

servient  tenement S03 

servitudes 802 

several 14 

ship's  manager 2170 

ship 960 

appurtenances  of 901 

domestic 9i33 

foreign 903 

signature 14 

slander 46 

specific  relief 3307 

storage 1 85 1 

succession 1 333 

surety 2S31 

thing  in  action 953 

trade-mark 991 

tr:;nsf  cr 1 039 

trust 2215 

voluntary 2215 

involuntary 2217 

trustee 2218 

trustor 2218 

undue  influence 1575 

unlawful 1GG7 

vessel 17 

ward 236 

M'arranty ^ 1 763 

■will,  olographic 1277 

writing 14 

De^ees  of  kindred,  how  established. ...  1389 
Delay,    reasonable   grounds    for,    rebuts 

presuni[)tion  from  lapse  of  time 126 

in  performance  compensated   for,  when  1492 

how  excusi^d 1511 

carrier  of  persons  to  travel  without  un- 

rua.so:i!i!i!e   2104 

notice  of   loss  under   insurance   to   be 

gi  veil  v/ithout 26.33 

in  giving  notice  of  loss,  how  waived. . .   2G3G 

deemed  deviation,  when 2094 

of  creditor  does  not  discharge  guarantor  2825 
in  presentment  of  notice  of  dishonor, 

how  excused 3158 

in  [)rescntmentof  bill  of  exchange,  eflect  31S9 
in    prcsenlinent   of    bill    of    exchange, 

how  excused 3219 

in    presentment    of    promi"'sory    note. 

efToct ;   .3248 

in  presentment  of  check,  effect 3J55 

in  piotest,  liow  excused 3230 

Delinquent  assessment,  sale  of  stock  for  3tl 
assessuieiit.  action  to  recover  stock  sold 

for 347 

Civ,  Code — 41 


Delivery,  deemed  time  of  creation  of  in- 
terest    749 

of  grant  necessary  to  vest  title 1054 

])resu!nption  of  time  of 1055 

to  grantee,  neccssaiily  absolute 105i'i 

in  escrow 1 057 

constructive 1 05!) 

of  gilt  iiecessary  to  validity 1147 

of  contract  in   writing,   provisions  ap- 
plicable to 1626 

of  goods  sold,  when 1 75.3 

of  gfiods  sold,  whoi'e 1754 

of  goods  sold,  expense  of 1755 

of  goods  sold,  notice  of  election  as   to 

mode  of  1 756 

of  goods  sold,  buyer's  directions 1757 

of  goods  sold,  when  to  be  made 1  753 

thing  bought,  to  be  j^aitl  for  on 17S4 

of  thing  deposited,  on  ilemand lS2i 

of  thing  deposited,  demand  necessary ..  IS23 

of  thing  deposited,  where 1824 

of  thing  deposited,  by  joint  owners. . . .  1S27 

of  freight,  to  wiiom 2118 

of  frciglit,  wlierc 2119 

of  freight,  to  holder  of  bill  of   lading 

sulficient 2131 

essential  in  rdedge 20S3 

Demand,    when    restoration     of     thing 

wrongfully  taken  to  bo  upon 1713 

gooils  sold  to  be  delivered  upon ! 753 

thing  deposited  to  be  delivered  on. . . .  1S22 
thing  deposited  need  not  be  delivered 

without 1S2.3. 

thiiig    lent   to   be    returned   without, 

when 1895- 

thing  lent  need  not  be  returned  unless 

on,  when 1895 

employee,  to  render  account  without. .  1985 
emploj'ce,  when  not  bound  to  deliver 

without 1987 

servant  to  deliver  without 2014 

agent  to   deliver   to  third  person  on, 

when 2344 

upon  guarantor,  unnecessary 2807 

of  performance  on  pledger  must  be  be- 
fore sale  of  pledge 3001 

of  performance,  how  waived 3004 

of  payment  of  negotiable  instrument, 

when  necessary 3130 

Daposit    See  Pledge;  Storage;  Ware- 

nuCSEMEX. 

in  savings  bank  may  be  collected   by 

surviving  husband  or  wife,  when, . . .  579 

of  money  in  payment  of  debt 1500 

kinds  of 1813 

voluntary 1814 

involuntary 1815 

defined 1817 

gratuitous 1 844 

gratuitous,  involuntary  is 1845 

gratuitous,  obligations  of  depositary  on.  1S4G 
gratuitous,    duties    of    depositary    on, 

when  cease 1847 

for  reward,  called  storage 1 851 

for  reward,  decree  of  care  required  . . .  1852 

for  reward,  rate  of  compensation 1853 

for  reward,  how  terminated....   1854,  1855- 

with  innkeeper 1859,  1 860 

of  thing  found 1864 

of  thing  tor  exchange   1873 

of  thing  pledged,  by  gratuitous  pledge- 

hol.ler 2995 

Depositary,  person  oflei  ing  thing  in  per- 

lormauce 1503 


642 


mDE^. 


aso. 
Depositary,  gratuitous,  when  creditor  ia  1605 

seller  of  [jersonal  property,  when 174S 

define.l 1814 

who  bound  to  become 1815 

duties  in  case  of  involuntary  deposit...   1816 

to  deliver  on  demand 1822 

not  bound  to  deliver  without  demand  1823 

to  deliver  where 1 S24 

'  to  give  notice  of  adverse  claim 1825 

niav  exonerate  himself  by  giving  notice, 

when 1826 

to  del  I  ver  to  joint  owners,  how 1 827 

depositor  must  indemnify,  when 1833 

of  animals  must  provide  for  them 18.34 

not  to  use  deposit 1835 

liability  for  wrongful  use 1836 

may  sell  deposit,  when 1837 

to  give  information  of  cause  of  loss. . . .  1833 
duties  and  liabilities  in  respect  to  service  1 839 
.'liability  for  negligence,  how  limited. . .    1840 

gratuitous,  must  use  what  care 1846 

:gratuitoas,  duties  of,  when  cease 1847 

'lor  hire,  defined   1851 

for  liire,  must  use  ordinary  care 1852 

■for  hire,  rights  of 1853 

.for  hire,  duties,  how  terminated.  .1854,   1855 

'.innkeeper  as,  liability 1859 

•  for  hire,  finder  of  lost  propert}' 1864 

i  for  exchange 1 873 

•voluntary,  obligations  of 2078 

has  insurable  interest 2543 

wlien  pledgee  for  reward 2998 

rUescents.     See  SrccEssio>f. 
Description,  error  of,  in  will,  how  reme- 
died    1340 

agreement  to  compensate  for  errors  of, 
when  does  not  prejudice  right  of  re- 
scission     1G90 

TDesertion,  as    ground  of  divorce.     See 

DlVl>RCE. 

of  seamen.     See  SE.4MEN-. 
of  ship.     See  Siiippino. 

"Destriicdon  of  will  ia  revocation 1292 

of  will,  how  proved 1293 

of  written  contract,  effect 1099,   1700 

Detention,  of  ))erson  or  property  avoids 

,    contract,  when 1509 

of  pi  o|)erty,  damages  for 3335 

. Detriment.     See  Damage.s. 

Deviation,  carrier  must  not  make 2104 

efl 'ct  of,  on  insurance.    See  Insurance. 
Devise.     See  Will. 

Diligence,  repealed  definitions 16  n. 

On  at,  by  employee  for  his  o\vn  benefit.   1979 

sliip-master 2043 

carrier  of  messages  for  reward 2102 

Ordinary,  by  agent 2020 

by  voluntary  agent 2073 

gratuitous  carrier  of  persons 2095 

carrier  of  property  for  reward 2114 

trustee    2259 

SUcjht,    by  gratuitous  employee 1975 

^jL-iu^i-ouj  earner  ot  property  must 

use 2114 

Utmotit,  by  carrier  of  persona  for  re- 
ward   2100 

"Directions,  of  buyer  as  to   delivery  of 

goods 1757 

employee  to  follow 1981 

factor  to  follow 2030 

carrier  to  follow  whose 2115,  2116 

trustee  must  follow » 2258 

Directors,  of  corporations.     See  Coupo- 

KATIOXS. 


■SO, 
Disaflirmance,  minor  miaj  contract  sub- 
ject to 34 

how  affected  by  minor 35 

when  minor  cannot  exercise 36,  37 

Discharge  of  employee 1996,  2000 

wrongful,  of  employee 3300  n. 

of  servant 2015 

of  trustee 223.3,  2282 

of   trustee,  duties  of,  before  accepting 

his ^  2260 

of  trustee,  who  succeeds  after 2287-2289 

of  principal  does  not  iU.icharge  guar- 
antor,  when 2825 

Disti-ibutioa  of  community  property  on 

divorce 147 

order   for,   subject  to   revision  on   ap- 
peal       149 

of  capital  stock,  on  dissolution  of  corpo- 

raMon 315 

of  property  of  intestates 1384,   1386 

effect  of  advancements  on 1390-1394 

Dividends.     See  Corpgration.s. 
Divorce,  judicial  determination  of  incest- 
uous or  void  marriage 80 

dissolves  marriage 90 

defined 91 

for  what  causes  granted 92 

pleading  in  actions  for 92  n. 

adultery  as  ground  for 93 

extreme  cruelty ' 94 

willful  desertion 95 

constructive  desertion 96 

in  case  of  stratagem  or  fraud 97 

in  case  of  cruelty 98 

separation  by  consent  not 99 

separation  and  intent  not  always  coin- 
cident      100 

refusal  of  reconciliation  after  separation    101 

refusal  of  condonation 102 

desertion,  how  cured 102 

if    wife  refuses  husband's    reasonable 

place  of  residence 103 

if  place  unlit,  and  she  refuses,  husband 

commits 104 

willful  neglect 105 

habitual  intemperance 106 

certain  causes  for,  must  exist  how  long     107 

when  to  be  denied Ill,  112,  124 

connivance  as  ground  for  denying  ....     112 

corrupt  consent,  how  manifested 1 1.3 

collusion  as  ground  for  denying 114 

condonation  as  ground  for  denying. ...     11.5 

requisites  of  condonation 116 

implies  condition  subsequent 117 

evidence  of  condonation 118 

when  operates  aa  bar 119 

when  made  void 120 

how  revoked 121 

recrimination  as  grouml  for  denying. . .     122 

bar  to  recriminator's  defense 123 

lapse  of  time  as  ground  for  denying. . .     125 

presumptions  may  be  rebutted 126 

limitations  in  action  for 127 

requisites  as  regards  residence 128 

presumption  of  domicile 129 

not  to  be  granted  by  default 130 

when  denied,  certain  rehef  allowed. ..     136 

expense  of  action  and  alimony 137 

disposition  of  children 138 

support  of  wife  and  child 139 

security  for  maintenance  and  alimony.     140 
what  property  resorted  to  for  alimony 

and  relief 141 

when  relief  not  granted  to  wife J42 


INDEX. 


643 


BEO, 

filvorce,  application  of  property  to  snp- 

j'Ort  of  oliiUlreii 143 

le^'itimacy  of  issue 144,  145 

tli'^l^usiiion  of  common  property 146 

disposition  of  commoii  property  in  case 

of  iululLery 147 

appeal  ill  a,etion  for 148 

Dominaat  tenement.     See  Easements 

AM<  Servitudes. 
Double  Insurance.     See  Inscrancb. 

Doubtful  words  in  will 1"23 

in  ccjii  tract 1G34 

Bower,  m<  >t  allowed 173 

Drawer  and  drawee.    See  Bill  of  Ex- 

(MIANCK. 

Drunlienness.     See  IxToxicATioy. 
Duel,  daniuges  for  injuries  inflicted   in 

3:U1,  334S 

Duplicate  of  will,  re-ocation  of 1-'J5 

alteration  of  copy  of  contract 1701 

Duress,    will     or    revocation     procured 

tlirougli,  denied  probate 1272 

defined 1509 

contract  under,  voidable 157G,  1GS5) 

Earnings  of  wife  not  liable  for  husband's 

del)U 1G3 

of  wife  living  separate,  separate  prop- 
erty   109 

of  minor  children 109 

of  legitimate  unmarried  minor 197 

of  illegitimate  unmarried  minor 200- 

Easements  and  servitudes,  to  water  to 
iriigate  lands,  sold  by  water  or  irri- 
gating company 552f 

what  are  easements 801 

when  held  apart  from  land 802 

"  dominant  tenement  "  defined 803 

"  servient  tenement "  defined 803 

by  whom  grantable 804 

by  whom  held 805 

extent,  how  determined 806 

partition  of  . . .  .^.  . .    807 

how  far  usable  by  expectant  owner. . .  808 

■who  may  enforce 809 

not  to  disqualify  owner  from  recover- 
ing possession 810 

extinguished,  how 811 

what  pass  by  transfer  of  property 1104 

Elections,  day  of,  a  holiday 7 

corporation  how  conducted 307 

Employment,  defined 1965 

conlidential  obligations,  where  regu- 
lated   1992 

termination  by  death  or  incapacity. .  1996 
when  services  to  be  continued  after 

notice 1998 

termination 1997 

termination  at  will 1 999 

termination  by  employer,  for  fault..  2000 

termination  by  emi)loyee,  for  fault. .  2001 
terminated   for  cause,  employee  not 

entitled  to  compensation 2002 

right  of  employee   to   compensation 

after  termination 2003 

Ber^ice  without 2078,  2079 

Employer,    when    to    indemnify    em- 
ployee  1909,  1971 

when  not  to  indemnify  employee. .    .  1970 
cannot  enforce  contract  beyond  two 

years I9S0 

employee  to  obey 19SI 

entitled  to  all  acquired  by  employee 

in  course  of  service 1935 

entitled  to  accouut  from  employee. .  1986 


Employmetlt,  J?»i7)7cn/*T,  preference  given 

to  Ijusiness  of 1983 

preference  given  to  business  of  sev- 
eral, in  order 1988 

employee  liable  for  substitute,  how 

far 1989 

employee  liable  for  negligence 1990 

Enqtloyfe  entitled  to  indemnification, 

when ..I'.iOit,    1971 

when  not  entitled  to  indemnification   1070 

negligence  of  fellow-employee 1970  n. 

gratuitous  obligations  ol 1975,   rJ76 

with  power  of  attorney 11)77 

for  reward,  obligations 197S 

for  his  own  beneiit,  obligations 1979 

not  Ijonnd  for  more  than  two  years. .    1980 

to  obey  employer 1 98 1 

to  servo  according  to  usage 1 982 

to  use  reasonable  sl;i!l 1983 

to  use  whatever  skill  he  has 198't 

everything  acquired  by  virtue  of  em- 
ployment belongs  to  employer....    1985 

to  give  account 1986 

not  bound  to  deliver  without  demand  1987 
to  give  preference  to  employer's  busi- 
ness     1988 

to   give    preference    to   several    em- 
ployers in  order. .    19S3 

how  far  liable  for  substitute 1989 

surviving,  when  to  act 1991 

discharged  by  notice  of  death  or  in- 
capacity of  employer 1996 

when  to  continue  service  after  em- 
ployer's ileath,  etc 1998 

entitled   to   comi)ensation  from  em- 
ployer's successor 1993 

discharged  for  fault 2000 

may  <piit  service,  when 2001 

compensation    when    dismissed    for 

fault 2002 

comi)ensation  when  quits  for  cause. .   2003 
damages,     where     wrongfully      dis- 

chaVged »...  3300  a. 

Enclosurea.     See  IvcLosrRES. 
Enemy,  public.    See  War. 

performance  prevented  by 1511 

innkeeper  not  liable  foi  damages  caused 

by 1859 

carrier  not  liable  for  damages  caused 

by   2194 

cannot  l)e  insured 2540 

Evidence.     See    Orax:  Presumption; 
Witnesses. 

of  witness,  privileged 47 

of  condonation 118,  119 

divoice   not  to   be  granted   on  uncor- 
roborated       1 30 

record  of  inventory  of  wife's  property     106 
certified   copy   of  articles   of   incorpo- 
ration       297 

handwriting  to  instrument 1199 

certificate  of  ship-muster  to   exertions 

to  save  vessel 2059 

certificate    of    change     of     names    in 

partnersliip 2171 

of  loss  given  to  insurer 2034 

Exchange,     when     personal     property 

passes  by 1 140 

wdien  personal   property  passes  under 

executory  agreement 1141 

defined 1S04 

form  of  contract 1 805 

of  money  implied  warranty 1807 

deposit  for J.81& 


644 


INDEX 


BEO. 

Exchange,  deposit  for,  relation  of  par- 
ties in 1 S78 

rights  and  obligations  of  parties 2803 

bill  of.     See  Bill  of  Exciianoe. 

EzGOUtcd   contract,  voluntary   transfer  1040 

consitlei'ation  or  executory 1G09 

contract,  tlelincd 2GGI 

Execution  of  written  iustniinent 14 

sale  of  franchise  of  curporatious  under     3SS 
proceedings     under,    against    corpora- 
tions       393 

chattel  interest  not  lialjle  tc  sale  under     705 

exemption  oi  homestead r240 

debts  for  which  homestead  liable 1241 

of  instruments  affecting  homesteads. . .  1242 
proceedings  on,  against  homestead. . . .    1245 

of  homestead  declaration 1206 

of  codicil,  effect  on  jirevious  will 12S7 

of  accord,  necessary  to  validity 1022 

of  contract  in  writing,  effect  of 1G25 

when  principal  bound  by  incomplete  . .  2331 
whe!i  princij)al  bound  liy,  in  excess.. . .   2333 

Executors  and  administrators,   when 

may  bind  to  apprenticeship 207 

■who  entitled 1371 

cannot  have  power  to  appoint  executor  1372 
nut  to  act  till  qualiiied 1373 

Ezeoutory,  grant  on  condition  precedent  1 1 10 

agreement  transfers  title,  when 1 141 

consideration IGOO 

consideration  need  not  be  stated IGIO 

consideration  ascertained  how 1011 

contract  of  marriage  to  be  in  writing.     1024 

contract  defined lOUl 

agreement  for  sale  of  real  property .    1731 

contract,  covenants  when  recjuired  by.   1733 
instrument  in  writing,  implietl  warranty 
on  sale 1774 

Exemplary  damages,  minors  and  per- 
sons of  unsound  mind  not  liable....       41 
allowed  when 3294 

Exemption  of   homesteads  from  forced 

sale 1240,  1241 

of  property  from  operation  of  mortgage .   2305 

Exon3ration  of  innkeeper  from  liability  18S0 

of  finder  from  liai)iiity 1805 

of  owner  from  claim  of  finder 1871 

of  lender  from  liability 1892 

of  ship-master,  on  abandonment 2041 

of  carrier,  on  delivery  to  holder  of  bill 

of  la<ling 2131 

of   paitner,  on  renunciation  of  future 

profits 2417 

of  guarantors 2819 

of   surety 2840,  2845 

of  gratuitous  pledge-holder 2990 

Express  coutrai^t.     See  Contkacts. 
trust.     See  Tiil'sts, 

Extension  of  time  of  delmquent  sale  of 

stock 345 

of  existence  of  corporations 401,  402 

of  time  of  performmce  of  contract. . . .   1093 

Extinctiouof  contracts.    SeeCoNTKACTS. 
of  liens.     See  LiENS, 
of  negotiable  instruments.     Sec  NegOi 

TLVIiLE    IN-STIUMKNTS. 

of  obligations.     See  OnLlOATiONS. 
of  tru-^ts.     See  Tim.sTS. 

Factor  defined 2026 

duties 2027 

may  sell  on  credit. . 2028,  23G3 

liabihty  under  guaranty  commission. . .  2029 
ca:mot  lelieve  hunself  from  liability. . .  2039 
Oictual  authority ^. . .  23GS 


Factor,  ostensible  authority. 2309 

guaranty  need  not  be  in  writing 2794 

lien 3061 

Facts,  concealment   makes  condonation 

void,  when 120 

mistake  defined 1577 

mistake  of  foreign  law,  mistake  of 1579 

actual  fraud,  question  of 1574 

fraudulent  intent,  question  of 3442 

False  representation  in  insurance 2579 

representation  in  insurance,  eirect 2580 

representation  in  marine  insurance,  ef- 

lect 2070,  2077 

certificate  by  officer  of  corporation. . . .     316 

Fare.     See  Ticket. 

on  street-railroad 501,  s. 

may  i^e  demanded  at  any  time 2187 

passenger  may  be  ejected  for  not  pay- 

ing 487,  2188 

when   passenger   required    to   pay  in- 
crease of 2189 

ejectment  of  passenger  forfeits  right  to  2190 
carrier's  lien  for 2191 

Father,  of  what  minor  entitled  to  cus- 
tody and  services 197 

consent  of,  to  apprentice  child 265 

Fee-simple  defined 702 

words  of  inheritance  unnecessary 1072 

title  when  presumed  to  pass 1105 

Fee-tail  abolisiied 703 

Foes  for  reourding  bank  statements  ....     321 

Felony,  ground  for  divorce 92 

limitation  of  action  of  divorce  for 124 

Females  under  eighteen,  minors 25 

of  fifteen  may  marry 56 

Feme    covert.       See     Husband    and 
Wike;  Mauriek  Womex. 

Feucss,  right  of  by  coterminous  owners, 

an  easement SOI 

tenant  for  life  to  repair 819 

coterminous  owners,    when   bound   to 
maintain ...     841 

Ferry    corporations.      See'   Corpoka- 

TIONS. 

Fictitious  name  in  partnership,  may  be 

used 2400,  2467 

payee 2 103 

Filing  of  inventory  of   wife's  separate 

1  roperty 165 

effect  of  such 106 

of  articles  of  incorporation 206 

of  articles  prerequisite  to 293,  296 

of  articles,  iluty  of  secretary  of  state. .     290 
affidavits  of  sale  of  delinquent  stock  . .     3iS 

Finder  not  bound  to  take  charge 1804 

taking  charge  is  depositary  for  Lire    . .    1804 

notice  to  owner   1865 

proof  of  cwnership 1SG6 

compensation 1 807 

may  exonerate  himself  by  storing 1863 

may  .sell  thing  found,  when 1 869 

Bale,  how  made 1870 

owner  may  exonerate  himself  by  sur- 
rendering      1 871 

absolutely  entitled  to  thing  abandoned   1872 

Fire,  invohintary  deposit  in  case  of 2815 

duty  of  depositary 2816 

occasioned  by  passing  locomotive. . .  .2108  n. 

Fire  insurance.     See  Inshuanck. 

Fire  patrol,  equipment  and  employment 

of 4.30,  8. 

privileges  of 430,  s. 

cost  and  expenses  of  maintaining,  how 
assessed „ 430.  8. 


INDEX. 


645 


Fishing,  right  may  be  held  as  easement.     801 

liglit  may  be  bckl  as  servitude 80"2 

rixtures,  real  property GoS 

what  are ,..660,  661,  2920  n. 

ownetsliip  of 1013 

what  may  be  removed  by  tenant 1019 

gas  chantlalitT,  whether 2926  n. 

niort^'ugo  a  lieu  upon 2926 

moitgagcd's  remedy  for  removal  of.  .2929  u. 
Foroe.     .Sec  DriiEs.s. 
in  protecting  person,  property,  and  rela- 
tives         r:iO 

marriage  obtained  through,  voidable. .       58 
mani.ge  obtained  through,  may  be  an- 
nulled          82 

Foreclosure    of    redemption    of    mort- 
gagor     2931,  2907 

of  redemption,  by  pledgee 3011. 

Foreign  bills.     See  Bills  of  Excii.\nge. 
corpi>ration3.     See  Corpquation'S. 

law,  mistake  of,  a  mistake  of  fact 1579 

navigation  defined 962 

ship  ilellned 1)63 

Forfsituro  of  powers  of  corporation  for 

non-user 4G8 

of  servitude  for  non-user 811 

conveyance  in  excess  of  title  does  not 

work 1108 

interpretation  of  conditions  involving. .    1442 

of  wages  of  seamen 2003 

of  policies  of  bfe  insurance 2766 

contract  for,  of  property  subject  to  lien, 

void 2SS0 

Forms  of  solemnizing  marriage,  no  par- 
ticular        71 

notice  of  assessment 335 

notice  of  delinquency 3.'>7 

notice  of  tenant  at  will  to  quit 7S9 

grant,  simple 1092 

certllicate  of  acknowledgment    1189 

certilicate  of  acknowletlgment  by  cor- 
poration      1190 

certilicate  of  acknowledgment  by  attor- 
ney in  fact ....    1 192 

certlliiate  of  acknowledgment  by  mar- 
ried woman 1191 

covenants    in   execution   of    executory 

contract 1 734 

real  mortgage 2948 

personal  mortgage 2956 

warranty  in  policy  of  insurance 3605 

notice  of  dislionor 3143 

Franoliiso.   property 388 

duties  (jf  purchaser  of,  on  execution. . . 

389,  390 

reileinption 392 

pi  ice  of  sale  under  execution 393 

to  street- railroad  coinpany,  effect  of   .497  n, 
Fraud,     marriage     contracted    through, 

voidable 58 

in  contracting  man'iage,  ground  for  an- 
nulling        82 

desertion  induced  by 97 

in  concealment  of  facts,  makes  condo- 

natiop  void 120 

ground  for  annuUig  apprenticeship. . . .     276 
in  instrument,  wlien  makes  void  against 

puichascr    1227 

whcTe  mntual,  instrument  void  against 

])areliaser  with  notice 1228 

in  insti'urncnt,  power  to  revoke,  when 

deemed  executed I  _'_9,    1230 

in  instrument,  other  provisions  concern- 
ing    1231 


bCO. 

Fraud,  will  procured  through,  void 1272 

contract    obtained    through,    voidable 

1567,   1689 

contract,      when      deemed      obtained 

through 1568 

actual  or  constructive 1571 

actual,  defined 1 572 

constructive,   defined 1 573 

actual,  (juestion  of  fact 1574 

contract  prevented    from   being  put  in 

writing  by,  enforced  when 1623 

contract  for  exemption  from  liability  of 

one's  own,  void 1668 

by-bidding 1707 

thing  gained  by,  held  in  trust 2224 

agent  cannot  have  authoiity  to  commit  2308 
omission  to  communicate  certain   facts 

avoids  insurance 2562,  2569 

return  of  premium  in  insurance,  for. . .  2619 
insurer,  when  liable  for  loss  tli rough. . .  2629 
in  valuation  under  marine  insurance. ..  2736 
misrepresentation  by  debtor  as  to  value 

of  pledge 2999 

exemplary  damages  given  in  case  of. . .  3294 
interest  as  da'nages  iriven  in  case  of. . .  32S8 
instrument,  wlien  void  against  creditors.  3439 
instrument,  avoided  \)y  judgment  cred- 
itor only .3441 

intent,  question  of  fact 3442 

Frauds,  statute  of,  what  contracts  to  be 

in  writing 1 624 

sales  of  personalty 11  o9 

sales  (if  realty 1741 

Free  passes,   what   railroad    companies 

may  gr.ant 491 

Freehold  defined 765 

Freight  and  freightage,  when  wages  of 

seamen  depend  on  freightage 2054 

•when  wages  of  seamen  do  not  depend 

on  freightage 2058 

defined 2110 

whose  directions  govern  delivery  of . . .   2115 

carrier  must  not  stow  on  deck 2117 

whereto  be  delivered 2118,  2119 

notice  of  arrival,  when  necessary 2120 

stored  l)y  carrier,  when 2121 

bill  of  lading 212G 

carrier,  how  exonerated  from  liability 

for 2131 

freightage,  payable  when 2136 

freightage,  payable  by  whom.  ..2137,  2133 
freightage  not  chargeable  on  increase  of 

freight 2139 

freightage,  apportioimient  of 2140-2142 

when  carried  farther  than  agreed 2143 

carrier's  lien  for  freightage 2144 

freightage,  how  valued  on  general  aver- 

age 21.53 

liability  of  inland  carriers  for  loss 2194 

liability  of  marine  carriers  for  Idsss.  . . .  2197 
consignor  of    valuable,   to   declare  its 

nature 2200 

delivery  beyond  usual  route 2201 

proof  in  case  of  loss 2202 

sale  I'i  [lerishalile  property  for,  when. .  2204 
freightage  liable  for  certain  contracts  of 

ship-master 2^)76,  2380 

master  of  ship  may  hypothecate  freight- 
age   2377 

shii)'3  manager  cannot  give  up  lien  for 

freightage 2389 

ship'.s  manager  may  settle  for  freightage  2388 
frei'htage  in  marine  insurance  signifies 

what 2661 


646 


INDEX. 


BEO. 

Freights  and  freightage,  \rho  has  insur- 
able interest  in  freightage 2052 

insurable  interest,  when  exists 2!3G3 

how  affected  by  abandonment  of  ship.   2730 
wlien  ship-master  may  hypothecate  un- 
der bottomry 3021 

hypothecation  of  freight  by  responden- 
tia   3038 

sliip-master  has  lien  upon  freightage..   3335 

seaman  has  lien  upon  freightage 3056 

damages  for  carrier's  refusing  to  carry 

freight 3315 

damages   for  carrior's  refusing  to   de- 
liver freight 3316,  3317 

strcct-railroad  fares 501 

Freights  and  fares.    See  Fare. 

commissioners 491  s. 

Funds,  order  of  resorting  to  different. . .  2S99 
Further  assurance,  executory  contract 
of  .=ale  binds  seller  to  insert  covenant 

of 1733 

Future  representation  in  insurance  as  to, 

when  promise 2574 

warranty  in  insurance  may  relate  to.  2606 
wairanty  in   insurance   as  to,  what 

deemed 2608 

Estate.t,  what 707 

rights  of  owners 803 

vesting  not  prevented  by  power  of 

appointment 781 

Interest,  defined 690 

vested  or  contingent G93 

vested. 694 

contingent 695 

two  or  more  in  alternative 696 

not  void  because  improbable 697 

riglit  of  posthumous  children  in....     608 

pass,  how 699 

mere  possibility  not  transferable. . . .     700 

none,  except  those  specilied 703 

suspending  alienation,  void 716 

wlien  defeated 739,  740 

when  not  defeated 741,  742 

contingent  on  death  without  issue, 

construction 1071 

lien  created  on 2SS3 

Game,  right  of  taking,  as  easement 801 

li^^ht  of  taking  as  servitude 802 

Gas.   S(  e  Couporations,  Kinds  of — Gas. 
Gas-ilutures,  wliether  fixtures  in  law. 2926  n. 
Gend3r.  masculine  includes  feminine  and 

neuter 14 

GenercU  avera'^e.     See  Averaue. 
fund.     See  FaxD!^. 

Gilt  defined - ,  1146 

made  how   1 147 

what  not  revocable 1 1 48 

in  view  of  death,  what 1 149 

in  view  of  death,  when  presumed 11. "0 

in  view  of  death,  revocation  of 1151 

in  view  of  death,  effect  of  will  upon..  1152 
in  view  of  death,  when  treated  as  legacy.  1153 
to   subscribing    witness    to    will,    void 

when 1282 

subscribing  witness  may  take  as  much 

Ijy,  as  by  succession 1283 

counties,  cities,  and  towns  may  take 

by. 1313 

certain  words  in  will,  when  words  of. .    1."13j 

ademption  of  logac}',  wlien 1357 

in  view  of  death,  may  be  satisiied  ....    13t)l 
Good  faith  deiined  in  repealed  section..  14  u. 
chi  dren  of  illegal   marriage  contracted 
in 86 


no. 
Good  faith,  offer  of  performance  to  be  in,  1493 

trustee  bound  to  h'gliest 2228 

partner  bound  to  highest 2411 

partner  when  not  bound  by  act  not  in.  2431 
principal  bound  tb  persons  acting  in. . .  2334 

agent  not  bound  by  act  in 2343 

agent  indemnified  for  advance  made  in, 

when 2344 

incumbrance  presumed  acquired  in 2944 

Good- will,  property 055,  993 

detined 992 

seller  may  agree  not  to  carry  on  same 

business  in  county 1674 

implied  warranty  in  sale  of 1 776 

partner  cannot  dispose  of 2430 

Grace,  days  of,  not  allowed 3181 

Grant    See  Conveyances. 

Greater  contains  the  less 536 

Growing  crops,  subject  to  mortgage. . . 

2955,  2972 

See  Crops. 
Guaranty,     See  Surety. 

liability  of  factor  on  sale  under,  commis- 

mission 2029 

detined , 2787 

knowledge  of  principal  not  necessary. ,  27SS 

consideration,  when  necessary 2792 

consideration  need  not  be  expressed . . .  2792 

must  be  in  writing 2793 

promise  to  answer  for  another,  when  not 

deemed 2794 

acceptance  necessary  to  validity,  when  279^ 
interpretation  of  incomplete  contract. .  2799 
that  obligation  is  good  or  collectible. .  2800 
that  obligation  is  good,  not  discharged 

by  harmless  omission  to  sue 2801 

that  obligation  is  good,  when  broken  by 

principal  leaving  state 2802 

deemed  unconditional,  when 2806 

enforced  without  demand   or    notice, 

when 2807 

of  conditional  obligation,  effect 2808 

liability  on,  not  greater  than  principal's  2803 

where  principal's  contract  void 2810 

continuing,  defined 2314 

continuing,  revoked  when 2Si;> 

continuing,  lelterofcredit,  wiiendeemcd  2804 
exonerated   by   certain    dealings   with 

principal 2819 

not  exonerated  by  void  promise,  etc. .  2820 
not  restored  by  rescission  of  agreement 

exonerating 2821 

reduced  by  partial  satisfaction  of  prin- 
cipal obligation 2822 

not  exonerated  by  mere  delay 2823 

not  exonerated  by  release  of  principal, 

when 2824 

not  exonerated  by   legal  discharge  of 

principal   2825 

and  suretyship  distinguished 2831  n. 

surety  exonerated  in  like  manner  with 

guarantor 2840 

surety  has  all  rights  of  guarantor 2844 

'  indbrscr  has  rights  of  guarantor 3121 

Guardian  and  ward,  legal  proceedings 
by    minor  to  be  conducted  through 

guardian 42 

appointment  of,  supersedes  parent  ....     204 

guardian,  what 236 

ward  defined 237 

kinds  of  guardian 233 

common-law  guardians,  what  were  the. 238  n. 

general  guardian,  what 239 

special  guardian,  what. 240 


INDEX. 


m 


no. 
Guardian  and  ward,  appointment  of 

gaardiau  by  parent 241 

no   person  can  be  guardian  of  estate 

without  appointment 242f 

appointrt'cnt  of  guardian 243,  244 

jurisdiction  of  guardians 245 

rules  for  appointment  of  general  guar- 
dian      246 

powers  of  guardians  appointed  by  court    247 

duties  of,  of  person 248 

duties  of,  of  estate 249 

relation  of  guardian  and   ward  confi- 
dential       251 

death  of  joint  guardian 232 

removal  of  guardian ." 253 

appointed  by  parent,  how  superseded  .     254 
appointed  by  court,  how  superseded    .     253 

release  by  ward 25Q 

discharge  of  guardian 257 

of  insane  person 258 

may  consent  to  apprenticeship  of  ward, 

when 2G5 

Guest,  innkeeper's  liability  for  personal 

property  of 1859,  ISGO 

Habitual  iutsmpsrance  ground  for  di- 
vorce        92 

to  continue  how  long 107 

Half-blood  kindred  inherit  equally  with 

whole  blood 1394 

Hand'^ritinj,   execution  of  instrument 

proved  by,  w'.ien 1 198 

Head  of  a  family,  husband  ia 156 

p'.irase,  defined 1261 

Heirs  of  minor,  when  and  how  to  dis- 
affirm contract 35 

may  dispute  legitimacy  of  issue 195 

of  tenant  for  life,  when  take  as  pur- 
chaser       779 

construction  of  word 1071,  1329 

inheritance  by.     See  SuccEssiox. 
Siring,  depositary  for,  when  person  offer- 
ing tiling  in  performance  is 1503 

depositary  for,  when  seller  of  personal 

property  to  act  as 1 748 

detined 1925 

hirer  entitled  to  product  of  tiling  dur- 
ing   1926 

covenant  for  quiet  possession  implied 

in 1927 

hirer  to  use  ordinary  care 1923 

hirer  to  repair  certain  injuries 1929 

hirer  may  use  thing  let,  for  what 19."j0 

letter  may  terminate,  when 1931 

hirer  may  terminate,  when 1932 

when  terminates 1933 

when  terminates  by  incapacity  or  death 

of  party 1934 

apoortionment  of  hire 1935 

o  iligations  of  parties 1955-1958 

of  ships 1959 

Holder  of    negotiable   instrument  may 

make  indor.jement  special,  how 3114 

presentmi-nt  by 3131 

to  surrender  on  payment,  when 3137 

to  give  receipt,  when 3137 

to  indemnify  payor,  when 3137 

to  give  iiroof  of  loss,  when 3137 

notice  of  dishonor  given  by 3142 

notice  of  dishonor,  when 3148 

notice  of  dishonor  by  agent 3149 

what  information  excuses  presentment  3156 

payment  to,  when  sufficient 31G4 

of  bill  of  exchange  to  treat  it  as  dis- 
honored, when 3194 


BEO. 

Holder    may  receive    qualified  accept- 
ance when 3195 

not   bound  to   receive  acceptance   for 

honor 3204 

must  receive  payment  for  honor 3204 

must  give  notice  of  dishonor,  notwith- 
standing acceptance  for  honor 3208 

for  value,  entitled  to  certain  damages.  3234 

Holidays,  what  are 7,  8 

how  computed  in  reference  to  perform- 
ance  10,  11 

Homestead,  defined   1237 

from  what  property  taken litoS 

husband   cannot  select  from  separate 

property  of  wife 1239 

exempt  from  execution,  when 1240 

debts  froiii  which  not  exempted 1241 

conveyance  of  mortgages  of,  how  exe- 
cuted      1242 

how  abandoned 1 243 

dechiralion  of  abandonment 1244 

proceedings  when  exceeds  exemption. .   1245 

application  for  appraisers 1246 

petition  filed  with  county  clerk   1247 

copy  of  petition  served  on  claimant. . . .    1218 

appointment  of  appraisers 1249 

oath  of  appraisers 1 250 

duty  of  appraisers 1251 

report  of  appraisers 1252 

proceedings  on  report 125."i-1257 

fees  of  appraisers 1253 

alienation  of,  in  case  of  insanity 12G1,  s^ 

when  title  perfected    12G5 

tenure  by  which  lield 1265 

'  of  other  than  head  of  family 1206 

procecdiu!?   to   obtain    by   other    than 

head  of  family 12G6-1269 

who  may  acquire,  and  of  what  value. .    12G0 

declaration,  what  to  contain 1263 

• '  head  of  the  family  "  defined 1 261 

declaration  to  be  rcc;)rded 1263 

Homeste  lid  corporations.    See  CoufO- 

RATIOXS. 

Hotel-keepers.    See  Ixnkeepeks. 
Husband  and  'wife,  abduction  of  hus 

band  or  wife 49 

husband  to  select  residence 103 

wife  to   conform   to  selection,  or  she 

commits  desertion 103 

if  unfit,  and  v.-ife  refuses  to  conform,  ho 

commits  desertion ....     104 

willful    neglect    to    provide   for  wife, 

ground  for  divorce _.     105 

husband  may  be  compelled  to  give  ali- 
mony   l'"o,  137,  139 

security  for  alimony 140  • 

property  to  be  resorted  to  for  alimony.     141 
when  allowance  may  be  withheld  from 

wife 142- 

legitimacyof  issue  when  divorce  granted 

for  adultery  of  husband 144. 

legitimacy    of     issue,    where     divorce 

granted  for  adultery  of  wife 145 

mutual  obligations  of 15a  ■ 

husband  is  head  of  family 156  • 

interest  separate  in  certain  respects. . .     157  ' 

wife  may  make  contracts. .  ■ 153  • 

how  far  may  impair  their  legal  obliga- 
tions   _•  •  •     ^^*  ' 

mutual  consent  to  separation,  sufficient 

consideration ' •_  •     100 

may  be  joint  tenants    or    tenants    in 

common 161 

separate  property  of  wife 162 


m 


BEO. 

Husband  and  wife,  wife  may  dispose  of 
sepurate  property  without  couseiit  of 

Inisbanil 162 

conflict  of  laws  as  to  cliaracterof  prop- 
erty   162  n. 

Beparate  property  of  wife 1G3 

common  property  of 164,  GS7 

inventory  of  separate  property  of  wife     165 
effect  of  recording  inventory  of  sepa- 
rate property  of   166 

wife  maycontract  for  payment  of  money     Id? 

not  liable  for  debts  of  lutsband 168 

earnia^'s  of  wife  living"  separate,  sepa- 
rate propertj' 169 

husband  not  liable  for  debts  of   wife 

contracted  before  marriage 170 

wife  not  liable  for  debts  of  husband. ..  171 
proiierty  of   wife  liable    for   her    own 

debts 171 

power  of  husband  over  common  prop- 
erty      172 

husband  not  allowed  estate  by  courtesy     1 73 

wife  not  allowed  estate  in  dower 173 

husband  liable  for  support  of  wife. . , .  174 
husband  not  liable,  if  wife  abandons..     175 

whea  wife  to  support  husband 176 

property  rights  of  wife,  how  governed.  177 
marriage  settlements  of,  how  exeeated.  178 
liviug   separate,    neither   has   superior 

riglit  to  custody  of  child 198 

husband  not  bound  to  support   step- 
children      209 

consent  of  wife  necessary  for  husband 

to  adopt  child 223 

surviving  husband  or  wife  may  collect 

deposits  ill  savings  bank,  when 579 

husband  cannot  select  homestead  from 

separate  property  of 1239 

wife  must  join  in  conveyance  of  home- 
stead     1242 

wife  when  head  of  family 1261 

joint  tenancy  in  homestead 1265 

consent  of  husband  not    necessary  to 

wife's  will , .   1273 

inheritance  between 1400 

distribution  of  common    property  on 

death  of  wife 1401 

distribution   of    common  property  on 

death  of  husband 1402 

disposition    of   common    property    on 

deatli  of  husband 1402 

contract  obtained  from  wife  by  duress 

of  husl:and  voidable 1569 

contract  obtained  from  wife  by  men- 
ace voidable 1570 

Identifioation  of  contracting  parties. . . .   1553 
Idiots.    See  Persons  of  Unsound  Mind. 

Idle  asts,  law  does  not  require 3532 

Ignorance,  mistake  of  fact  through,  ren- 
ders contract  voidable 1507,  1577 

Ulesitimacy.     See  LEGrniL\CY. 

who  may  raise  question  of 195 

proved,  how 195 

mother  entitled  to  custody  of  illegiti- 

m  .te  child 200 

effect   of  subsequent   marriage  of   pa- 
rents       215 

consent  of  mother  necessary  to  adop- 
tion of 224 

effect  of  adoption 230 

appointment  of  guardian  for 241 

wlien  takes  by  succession 1387 

jmothor  succeeds  to  property  of  intes- 
tate    1 388 


exO, 

Impossibility,  condition  void  on  nccount 

of 1441 

of  ascertaining  object  of  contract 1596 

deGued 1597 

of  performance,  when  avoids  contract.    1598 
of  ascertaining  consideration  . . .  .1612,   1613 

law  does  not  require 3531 

Improbability  of  contingency  does  not 

render  future  interest  void 697 

Incapacity,  to  contract 39,  40 

to  consent  ground  for  nullity  of  marriage       82 
physical  ground  for  annulling  marriage      82 

terminates  hiring 1934 

terminates  agency 2355 

Invest  defined 59 

judicial  determination  of  marriage  in 

case  of 80 

Incident  passes  with  principal 

1084,  1G56,  3540 

Income  dcliued 743 

disposition  of,  governed  how 722 

accumulation  of,  allowed  when 724 

accumulation   of,   directions   for,    void 

when 723,     725 

allowance  out  of 726 

undisposed  of,  v.ho  entitled  to 733 

Incorporation.    See  Corporations. 
Increase.    See  Accession. 

of  property  belongs  to  owner 732 

of  property  lent  belongs  to  lender 1885 

of  property  hired  belongs  to  hirer 1926 

freightage  not  charged  for  natural,  of 

freight 2139 

of  property  pledged,  is  pledged 2989 

Incumbrancer,  resulting  trust  not  to 

prej  udice 856 

grant,  how  far  conclusive  as  to 1 107 

incumbrance  dellned 1114 

instruments,  when  void  against 1227 

instruments,  when  not  void  against. . .    1223 
grant  as  revocation  in  favor  of,  when. .   1229 
incumbrance  imposed  on  devised  prop- 
erty    1302 

rights  of,  under  devisee,  when  not  im- 
paired by  his  conveyance 1364 

when  personal  mortgage  void  against 

subsequent 2957 

lien  of  seller  or  buyer  not  valid  against 

subsequent 3048 

covenant  against  all  damages  for  breach  3305 
obligation  respecting  real  property  not 

enforced  against  subsequent 3395 

certain  transfers  void  against 3440 

Indemnity  by  depositor 1833 

when  employee  entitled  to 1S69,   1 971 

to  trustee ■..  2273 

to  partner 2412 

measure  of,  under  marine  insurance. . .  2736 

measure  of,  under  fire  insurance 2756 

measure  of,  under  life  and  health  in- 
surance    27C6 

insurance  a  contract  of 2551 

defined  2772 

for  future  wrongful  act,  void 2773 

for  past  wrongful  act,  valid 2774 

extends  to  acts  of  agent 2775 

to  several  applies  to  each 2776 

joint  liability  with  person  indemnified, 

when 2777 

interpretation 2778 

when  person  giving,  has  right  of  surety.  2779 

in  legal  proceedings 2780 

in  legal  proceedings,  by  what  rules  gov- 
erned    2781 


INDEX. 


649 


BEO. 

Indemnity,  guarantor  iB(?eniuified  liable 

to  extent  of 2S24 

Indentures  <.f  apprenticeship 270-272 

deposit  of  such 273 

causes  for  annulling 276 

of  apprentices.     See  Ai'PUKNTICEship, 

Indorsement,  marriage  certilicate 73 

iuilentui-!S  of  appreutiucsiiip 263,  375 

necessary  to  transfer  shares  of  stock     32-i 
of  surveyor-general,  on  plat  of  right 

of  way 478 

Hon -negotiable    contract    transferred 

by 1449 

cf  bill  of  la.ling,  effect  of 2127 

of  check,  rights  of  indorsee 32o5 

0/nejotkihle  iiidrument  delined 3108 

how  made 3 109 

on  separate  paper,  when 3110 

general,  defined 3112 

Bi)ecial,  defined 3113 

general,  liow  made  special 31 14 

special,  liow  may  destroy  negotiability  31 15 

implied  warranty  of 3116 

before  delivery  to  payee 3117 

without  recourse 3118,  31 19 

gives  privity  to  contract 3120 

for  acconnnodation,  rights  of  party 

making 3122 

without  consideration  binding,  when  3123 

in  due  course  defined. . . ., 3124 

in  due  course,  rights  confcrreil  by. ..  3125 
in  due  course,  of  instrument  iu  blank  3126 

riglits  of  indorsee 3129 

notice  of  dishonor,  how  served  after 

death  of  indorser 3145 

of  bill  of  exchange,  when  indorser 
exonerated  by  delay  of  present- 
ment    3189 

Infant.     See  Minors. 

en  ventre  sa  mere,  rights  of 29  n. 

Influence,  undue.     See  Unddk  Ixflc- 

ENCE. 

Information,  to  bo  given  on  insurance. .  2563 
to  be  given  oa  marine  insurance.. 2009,  2o70 
what  need  not  be  given  on  insurance. .  2570 

waiver  of  rights  to,  on  insurance 2563 

fraudulent  omission  to  communicate  on 

insura.uce 2509 

in  insurance 2577 

ilnlieriiance,  words  of,  not  necessary  to 

pass  fee 1072 

from  decedents.     See  Sccce.ssiom. 

Injunctions,  preventive  relief  by .3420 

provisions  concerning 3421 

wlien  allowed 3422 

when  not  allowed 3423 

to  stay  procuedings  in  another  court..  3423  n. 
to  restrain  L'gislation 3420  n.,  3423  n. 

Injuries,  right  of  protection  from 43 

rigiit  to  defend   person   and   property 

from ,')0 

by  tenant  for  life  to  real  property 818 

who  may  sue  for,  to  real  property 826 

tlireat  of,  renders  contract  voidable.  . . 

1509,  1570 

•contr.act  for  exemption  from  liability 

for,  void    1063 

■obliifition  to  abstain  from 1708 

liability  for,  by  neglect 1714,   1838 

innkeeper,    when    not    liable    for,    to 

guest's  propei'ty 1 869 

borrower,  wlien  to  repair  1889 

'liirer,  when  to  repair 1929 

4o  sliii),  liab.lities  of  seamen  for 2003 


BEC. 

injuries,  liabilities  of  inland  carrier  for. .  2194 

liabilities  of  marine  carrier  for 2197 

Innkeepers,  liabdity  as  depositary 1859 

exenijcted  from  liability,  how 186D 

lien  of,  on  ba;?^ige 1861 

Bale  of  unclauuod  baggage  for  storage, 

etc 1802 

posting  of  statement  of  charges,  etc. . .  1863 
Insanity,     See    Persons    of    Unsound 
Mind. 

children  of  marriages  annulled  for 84 

alienation  of  homestead,  iu  cases  of . . .  1201 

Insolvency  defined 3450 

of  special  partnership 2491 

cf  special  partnership,  preferential  as- 
signments forbidden 2498 

of  principal  in  guaranty 2S02 

of  consignee 3077 

consignor  may  stop  goods  in  transit  on, 

of  consignee 3080 

Inspection  of  tilings  sold  with  warranty  1785 
Instruments,  containing  condition  wrong 

per  so,  void 709 

affecting  title  to  real  pi'operty,  own- 
ership of 994 

by  maiTied   wumen,   acknowledged, 

how 1093 

by  attorney  in  fact,  executed,  how. .  1094 
evidencing   title   declared    by  judg- 
ment, how  proved  for  record 1159 

wliat  not  to  be  recorded 1161 

proved    by    other   than    subscribing 

w  itness,  how  recorded 1162 

execution   of,   proof   of,   how    made, 

1185,  1193 

subsecjuent  recording   of  prior,  void 

as  to  subsequent 1203 

unrecoi'ded,    valid   as    between    par- 
ties with  notice 1217 

certain  non-negotiable  written,  trans- 
ferable   1459 

in  writing  prima  facie  import  con- 
sideration    1614 

burden   of   proof,    showing   want  of 

consideration 1615 

distinction   between  sealed  and    un- 
sealed abolished 1629 

Fraud idmt,  when  void  against  purchas- 
ers   1227 

when  not  void  against  purchasers  . .  1228 
power  to  revoke,  when  executeil .... 

12-29,  1230 

provisions  concerning 1231 

void  against  creditors,  when 3439 

valid  ia  favor  of  purchaser,  when. . .  3441 

avoiiled  l)y  judgment  creditor  only . .  3442 
Unn-conli'd,   valid  as  between  parties 

and  privies 1217 

Insult,  ri  ^ht  of  protection  from 43 

Insurance.     See    CoNTumcTioN;  Loss; 
Seaworthiness. 

agents,  powers  of 2533  n. 

speci.d  partnership  cannot  carry  on .  2477 

defined 2.527 

wiiat  subject  to 251^1 

lottery  or  lottery  prize  not  subject  to  2532 

usual  kinds 2533 

parties  defined 2538 

parties  who  may  be   25:19,  2540 

by  mortgagor  in  favor  of  moi'tgagee.  2541 

transfer  of,  to  nmrtgagee 2542 

in  general  defined 2546 

may  consist  in  what 2547 

by  carrier  or  depobitaiy 254S 


650 


INDEX. 


/ 


Insurance,  mere  contingency  or  expect- 
ancy not  subject  of 2549 

measure  of  interest 2j.i0 

void  if  insured  has  no  interest 25- 1 

wlien  interest  must  exist 2552 

change  of  interest  sus])end3 2553 

after  lo.ss  does  not  suspend 2554 

in  thing  separately  insured  does  not 

suspend 2555 

by  succession  does  not  avoid 2556 

from  one  joint  owner  to  another  does 

not  avoid 2557 

gaming  and  wagering  policies 2558 

conci-alments  in,  detiued 2561 

ground  fur  rescission 2562 

•what  must  be  communicated  in 2563 

wiiat  need  not  be 2564 

what  deemed  material 2565 

what  parties  bound  to  know 2566 

right  to  information  in,  how  waived.  2367 

what  information  not  necessary 2568 

frauilulent  concealment  of  facts  con- 
cerning warranty,  avoids 2569 

parties  not  bound  to  state  matters  of 

opinion   2570 

representation,  oral  or  written 2571 

representation,  when  made 2572 

how  interpreted 2573 

when  deemed  promise 2574 

how  affects  policy 2575 

may  be  withdrawn,  when 2576 

refers  to  what  time 2577 

upon  belief 2578 

when  deemed  false   2579 

false,  ground  for  rescission 2580 

materiality  how  determined 2581 

policy  of,  when  void 2558 

policy  of,  right  to  rescind 2583 

policy  of,  defined 2586 

parol  contracts  of,  valid 2586  n. 

must  specitiy  what 2587 

whose  interest  covered  by 2588 

in  favor  of  agent. 2589 

in  favor  of  partner 2590 

general  description  in,  to  whom  ap- 
plicable    2591 

for  benefit  of  successive  owners 2592 

not  transferred  by  transfer  of  thing  in- 
sured    2593 

policy  of,  open,  defined 2595 

valued,  defined 2596 

running,  defined 2597 

eCTeet  of  receipt  in 2.598 

agreement  not  to  transfer  claJm  un- 
der, void 2599 

warranty  in,  defined 2603 

form  of  warranty  in 2604 

policy  mayprovide  foravoidance. ...  26!1 
express  warranty  must  be  in  policy. .  2605 
warranty  may  relate  to  past,  present, 

or  future 2606 

express  warranty,  defined 2G07 

as  to  future,  defined 2603 

performance  of,  when  excused 2609 

breach  of  material  ground  for  rescis- 
sion     2610 

breach  of  immaterial,  does  not  avoid  2611 

breach  of,  without  fraud,  effect 2612 

premium,  how  payable 446 

premium,  rate  of,  must  be  specified 

in  policy 2587 

premium,  efTeet  of  receipt  of  policy  2598 

premium,  wlien  earned 2016 

return  of,  when  due 2G17 


Insurance,  when  none  allowed. 2618 

return  of,  when  not  due 2619 

in  case  of  over-insurance 2620 

contribution  to 2G21,  2622 

perils  insured  against,  what  may  be  2531 

perils,  what  covered 2026 

perils  remote  and  proximate 1626  n. 

perils,  loss  incurred  by  rescue  from, 

covered  by 2627 

perils  excepted 2628 

caused  by  fraud,  when  not  covered. .  2629 

notice  of  loss 2633 

proof  of  loss  under 2634 

notice    of    defects    or    delay,    how 

waived 2635 

proof  of  defects  or  delay  in  notice  of 

loss,  how  waived 2636 

proof  of  loss  by  certificate,  when  ex- 
cused    2637 

double, defined 2641 

contribution  under 2642 

reinsurance,  defined 2646 

what  must  be  communicated  on 2647 

presumed  to  be  against  liability 2648 

original  insurer  has  no  interest  in.. . .  2649 
Fire,  effect  of  alteration  in  thing. 2753,  2754 

how  affected  by  acts  of  insured 2755 

measure  of  indemnity 2756 

Life  and  health,  valuation  of  policies. .  449 
policy,  what  evidence  to  contain ....  450 
payment  and  cancellation  of  policy. .  451 
capital   stock   of    mutual    insurance 

company 452,  s. 

ship's  manager  cannot  bind  owners  to.  2389 

when  payable 2762 

•who  insured  by 2763 

may  be  transferred,  etc.,  to  person 

having  no  interest 2764 

notice  of  transfer  not  necessary "^^5 

measure  of  indemnity 278a 

act  regulating  forfeiture  of  policy.  .2766,  s. 
does  not  pass  to  assignee  for  benefit 

of  creditors 3470 

Marine,  insurer  not  liable  for  damages 

by  perils  of  the  sea 2197 

perils  of  the  sea  defined 2199 

defined 2655 

insurable  interest  under 2659 

owner  of  ship  has 2660 

insurable  freightage 2661 

expected  freightage,  when  insurable  2062 
insurable  interest  under  charter-party  2663 

in  profits 2664 

of  charter  of  ship 2665 

•what  must  be  communicated 2669 

what  information  material 2670 

when  persons  insured  presumed   to 

have  information 2671 

effect  of  concealments  upon 2672 

representation  willfully  false,  avoids  2676 

eventually  false,  does  not  avoid 2677 

warranty  of  seaworthiness  implied. .   2681 

meaning  of  "  seaworthy  " 2682,  2684 

when  complied  with 2683 

warranty  of  seaworthiness,  effect  of  2684 
different    degrees    of    seawortiiiness 

2685,  268ft 

■warranty  of  neutrality 268S 

voyage  covered  by,  how  determined 

2692,  2693 

deviation  defined 2694 

deviation,  when  proper 2695 

deviation,  when  improper 2696 

deviation,  effect  of 2697 


INDEX. 


65r 


Insurance,  2Inrxne,  loss  under,  total  or 

partial 2701,  2702 

actual  01-  constructive  loss 2703 

actual  total  loss   270-t 

constructive  total  loss. . 2705 

actual  loss,  when  presumed 2706 

on  cargo,  when  voyage  broken  up. . .   2707 
covers  expenses  of  rcshipment,  when  2708 
abaiidonnient   unnecessary  upon   ac- 
tual total  loss 2709 

free  of  average,  effect  of 271 1 

against  total  loss  only,  effect  of 2712 

abandonment 27 1 3 

iusuretl  may  abandon,  when 2717 

thing    insured    belongs    to    insurer, 

when   2724,  2725 

agents  of  insured  are   agents  of  in- 
surer after  abandonment 2726 

not  necessary 2727 

effect  of 2728 

irrevocable 2729 

effect  of  insurer's  refusing 2731 

insured  not  obliged  to  abandon 27.32 

valuation  in  policy,  when  conclusive.   2736 
valuation  in  policy,  when  applicable 

to  partial  loss 2737 

insured   may  recover  proportion   of 

profits,  when   2738 

valuation  in  policy,  apportioned....   2739 

valuation  in  pohcy,  of  profits 2740 

measure   of    indemnity   under    open 

policy 2741 

in  case  of  damage 2742 

where  expenses  in  ;urred 2743 

for  general  average 2744 

■where  insure  1  cntided  tocontribution  2745 
in  case  of  partial  loss  of  ship,  etc. . . .  274G 
Insurance  corporations.    See  Corpo- 

KATIONS. 

Intemperance,  habitual,  ground  for  di- 
vorce         92 

as  ground  for  divorce,   to  exist,   how 

long 107 

Intention  to  desert,  not  always  co-ex- 
istent with  separation 100 

of  grantor  in  ambiguous  grant 1009 

of  testator 1317,   1370 

of  testator,  how  ascertained 1318 

overrules  grammatical  construction  . . .    1324 

overrules  technical  meaning 1327 

substantial  compliance  with,  sufficient.  134S 
to  make  ademption,  must  be  in  writing  l.Jol 
to  extinguish  old  obligation,  necessary 

in  novation 1 7)3 1 

presumed,  when 1533 

to    deceive,    an    essential    element    of 

fraud i:)72 

to  govern  interpretation  of  contract. . .    1030 

how  ascertained 1 037 

■when  ascertained  by  the  language 1033 

■when  ascertained  by  the  writing  alone.  1039 
superior  to  terms  of  written  contract, 

when 1G40 

general  terms  restricted  by  main 1048 

particular  clauses  subordinate  to  gen- 
eral     1650 

words  inconsistent  with,  rejected 105.3 

presumption   of,  to   destroy  or  cancel 

contract 1099 

of    trustor,    necessary    to    creation    of 

trust 2221 

reviiion  of  contract  so  as  to  conform  to.  3309 

how  ascertained  in  revision 3  101 

fraudulent,  question  of  fact 3  U3 


BEO. 

Interest,  in  bequest  of  money,  •when  ac- 
crues    1366 

on  legacies 1309 

application  of  payments  to 1479 

stopped  by  offer  of  iierformance 1504 

loan  of  money  presumed  to  be  upon. . .  1914 

defined 1915 

annual  rate  of 1916 

legal  rate  of 1917,  1918 

when  becomes  part  of  principal 1919 

on  judgment 1920 

when  trustee  required  to  pay 2237,  2262 

rate  on  bottomry 3022 

rate  on  respondentia 3039 

rate  on  protested  foreign  bill 3236 

as  damages 3287 

as  damages  in  actions  other  than  con- 
tract    32S3 

as  damages,  limit  of  rate  of,  l)y  contract.  32S9 

acceptance  of  principal  waives 3290 

Interests  in  property,  absolute 679 

qualified 680^ 

joint   6SS 

partnership 684 

in  common 685 

present   689 

future 600 

perpetual 691 

limited 692 

future  vested 694 

future  contingent 695 

future  contingent,  may  be  alternative.  096 
future   contingent,    not    void    because 

improbable 697 

future  right  of  posthumous  children. . .  098 

future,  pass  by  transfer 699 

mere  possibility  of,  not  transferable. . .  700 

denominated  estates 701 

classification 70'2 

future,  none,  unless  specified 703 

when  void  for  suspending  alienation. . .  716 

future,  how  defeated 739,  740 

future,  when  not  defeated 741,  742 

time  of  creation  of 749 

chattel 705- 

merger  of,  destroys  servitude 811 

what  affectetl  by  transfer 1085 

certain,  in  remainder,  not  affected  by 

death  of  devisee 1134 

in  ship,  how  transferred 1135 

in  existing  trust,  how  trnnsferred 1135 

trustee  must  give  beneficiary  notice  of 

acquisition  of 2233 

transler  of,  when  mortga'je 2921 

Interpretation,  representation  in  insur- 
ance    2.573 

a'^'recment  to  indemnify 277S> 

of  codes.     See  Codes. 
of  contracts.     See  CoNTUArTS. 
of  conveyances.     See  Convkyaxces. 
of  guaranty.     See  GrAKANTV. 
of  negotiable  instrument.     See  Negoti- 
able In.strumf.xt. 
of  obligations.     See  OnLir.ATio.V3. 
of  suretyship.     See  SuuKTY. 
of  wills.     See  Wills. 
of  words  and  phrases.     See  Words. 
r)f  writin.,'s.     See  Wi:rriN<is. 
Interpreter,  officer  taking  ackuowledg- 

iiicMit  may  employ 1201! 

Intestacy,  will  interpreted   to  avoid,  if 

po-isible 1326. 

disposition  of  property  in  case  of 138^ 

succession  in  case  of.     See  Slccessiox. 


C52 


INDEX. 


BEO. 

Inundation,  voluntary  deposit  in  case  of  IS  15 

duty  <if  "lepositary 1816 

Inventor.     See  Pkoduct  of  Mind. 
Inventory  of  separate  property  of  wife     105 

effect  of  filing 1G6 

speciiic  legatee  must  make  and  deliver  13G5 
assi'^qior  for  beiielit  of  creditors  must 

make 31G1,  3462 

Investment  of  trust  money 2261 

of    guardians.     See     Guardian    and 
Waiu,. 
Involuntary  deposit.     See  Deposit. 

IiTigatiou,  act  to  [iromote 1422,  s. 

supc'ivisdrs  to  lix  rates 1422,  s. 

Xslands  in  navii,'aljle  streams 1016 

ill   unnaviLrable  streams 1017 

formed  by  division  of  stream 1018 

Issue,  construction  of  word 107 1 

Jettison  defined 2I4S 

in  wliac  order  made 2149 

by  \\iiom 2150 

loss,  how  borne 2151 

loss  by,  called  general-average  loss .   2152 

loss  of  cargo  stowed  on  deck 2154 

a]iplication  of  rules  concerning 2155 

^Toint  anthoiity,  construction  of  words..        12 

ownership 683 

interest  defined 683 

auth'Tship 981 

and  several  obligation 1427 

obligation 1428 

obligation,  contribution 1429 

■contribution  of  parties 1429 

-debtor,  eti'cct  of  performance  by  one. . .    1474 

■creditor,  performance  to  one 1475 

■creditor,  ilircctions  by  one 1476 

debtors,  effect  of  release  of  one 1543 

And  several,  contract  when  pres(micd. .  1G59 
owners,  delivery  of  ilcposit  to,  bow  made  1827 
Berviee,   how  ]ierformed  after  death  of 

joint  employee 1991 

interest,  change  in,  does  not  affect  in- 
surance     2557 

drawees,  presentment  to 3187 

Judges    and    judioisd    onicers     may 

solenmize  marriage 70 

may  t;  ke  ackno\vle<lgments IISI 

proceedings  before,  for  adoption  of  child     226 

duty  in  sncli  case 227 

duty  on  examination  of  insane  person.     258 
application   for   appraisement  on   exe- 
cution against  homestead 1245 

•duty  on  homostead  petition 1249 

■duty  on  return  of  appraisers  125."?,  I2.")4,   1258 
approval  of  bond  of  assignee  for  bene- 
fit of  creditors .3467 

may  reipiire  assignee  to  account,  when  3469 
may  consent  to  apprenticeship  of  child, 

when 265 

Judgment,  annul' ing  marriage 86 

instruments  evidencing    title   declared 

by,  acknowledged  how 1159,  1204 

interest  on 1 920 

attornment  to  stranger  by  virtue  of  . . .    1948 

on  dis  olulion  of  partnership 2452 

on  inilemnity 2778 

by  creilitor  against  surety,  effect  of  . . .   2839 

lien  30G7 

of  rescission 3406 

of  cance'lition 3412 

Judicial  sale,  implied  warranty  on  ....    1777 
pledgee  may  foreclose  radem[)tion  by  .   3011 
■wiietlKM-    within    the   provision    as   to 
fraudulent  transfers 3-140  n. 


no. 

Justice  of  the  peace  may  solemnize 

marriage 70 

consent  to  apprenticing  child 265 

order  meeting  of  corporations,  M'hen  . .     311 

may  take  acknowledgment 1 181 

certificate  of  county  clerk  thereupon  . .    1 194 

Kindred,  degree  of,  how  established 1389 

series  of  degrees  of l.']9l 

direct  line  of 1392 

collateral  line  of 1393 

of  half-blood  inherit  equally 1394 

Knowledge.     See  Notice. 

of    principal   not  necessary   to   create 

guaranty 2783 

necessary  to  ratification 3314 

Lad  ng.     See  Bill  of  Lading. 

Land  defined 659 

state,  and  appui'tcnance  thereto,  when 

gi-anted  to  corporation 474—476 

wlien  snch  reverts  to  state 477 

is  re:d  property 658 

defined 659 

limitation  on  leases  of  agricultural. . . .     717 

burdens  and  servitudes 801,  802 

right  of  flooding,  an  easement 801 

rights  of  owner 829 

as  real  property.     See  Property. 
Laud  and  building  corporation.    See 

Corporations,  Kinds  of. 
Landlord    and    tenant.      See    Lease; 
Rent;  Rkpair. 
tenant  for  life,  heirs  of,  when  take  as 

purchasers 779 

relation  of,  how  terminated  at  M'ill. . . .     789 
tenant  at  will,  how  required  to  quit. . .     789 
when  landlord  may  re-enter  on  prop- 
erty      790 

tenant  for  life,  rights  of 818 

tenant  for  years  or  at  will,  rightsof.  .819,  820 

tenant  may  remove,  what  fixtures 1019 

attornment  by  tenant,  when  unneces- 
sary      1111 

landlonl  must  repair,  when 1941 

tenant  may  repair  at  expense  of  land- 
lord, when 1942 

acceptance  of  rent  by  landlord  renews 

lease 1945 

continued     possession,     when     renews 

lease 1 945 

attornment  by  tenant,  when  void 1948 

tenant  must  give  notice  to  land  of  ad- 
verse proceeding 1 948 

when  rent  payable  by  tenant 1947 

tenant  of  part  room  entitled  to  whole. .    1949 
tenant  must  inform  landlord  of  atlverse 

proceedings 1949 

tenant   released  from   rent   by   letting 

room  in  parts 1 950 

landlord  must  not  let  room  in  parts. .  .    1950 
number  of  cubic  feet  required  for  each 

jjerson   1 950,  8. 

damages  for  willful  holding  over.  .3344,  3345 
Lapse  of  time,  divorce  denied  on  show- 
ing what Ill 

delined 125 

presumptions  arising  from,  may  be  re- 
butted      128 

proposal  to  contract,  •when  revoked  by.   1587 

paitncrshii)  dissolved  by 2450 

does  not  extinguish  lien 2911 

extinguishes  bottomry  lien 3027 

does  not  legalize  nuisance 3490 

as  limitation.     See  Limitations. 
Lateral  support,  easement  of 801,  832 


INDEX 


653 


SEO. 

La"wiiil,  object  of  contract  must  be 1596 

conbiilcrulinu  imibt  be 1G07 

contract  iiucipreteJ  so  as  to  be 1G43 

Lease.     See  Lanoloru  anu  Tenant. 

of  agriculttnal  lands,  liniit-atimi  ....     717 

of  tou  n  or  city  lota,  limitation 71S 

remedies  of  lessor  against  lessee  and 

assigns  for  breach.. 822 

remedies  of  lessee  against  assigns  of 

lessor  for  breach SSH 

for  life,  rent,  how  recovered S"24 

tenant  may  .  .move  what  fixtures  . . .    1019 
lessor  ujion  hire  must  secure  quiet 

possession 1927 

remedies  of  lessor  agaiust  lessee  mis- 
using i>roi)erLy 1930 

lessor  may  terminate,  when 1931 

0/jternona!  proptrtij,  letter  must  deliver 

to  liirer 19o3 

Becure  hirer  in  quiet  enjoyment 1935 

put  in  pro['cr  condition 1955 

repair,  w  hen 1 955 

bear  extraordinary  expenses,  when. .   1956 
lialile  to  hirer  for  certain  expendi- 
tures     1958 

Of  rent  prop'rty,  lessor  must  put  iu 

proper  condition,  when 1941 

lessor  must  repair,  when 1941 

lessor  lialile  for  certain  expenditures.   1942 

term,  when  no  limit  llxed 1943 

of  lodgings  for  indefinite  term 1944 

when  presumed  renewed 1945 

notice,  wlien  necessary  to  terminate.    194G 

rent  for,  when  payable 1947 

tenant  must  inform  lessor  of  adverse 

proceedings 1949 

in  subdivisions  of  rooms,  forbidden  .   1950 
Iiesacy.     See  Ademption;  Wills. 
Legislation,  cannot  be  restrained  by  in- 

j  uucti  ai 3423 

Legitimacy.     See  Illegitimacy. 

of  chihlieii  of  annuUeil  marriages 84 

of  children  of  divorced  marriages.. .  144,  145 

presumption  of 193 

of  ciiililrcn  born  out  of  wedlock 194 

wlio  may  dispute » 195 

Lessee.     Sec  Lea.se. 
Lessor.    S<e  Lkase. 

Latter  of  credit  defined 2853 

may  lie  adihetiseil  to  whom 2S59 

writer  liable  to  whom 2SG0 

special,  defined 2S61 

■general,  defined 2S62 

general,  any   person   may  give   credit 

under 2SG2 

general,  .'several  persons  may  give  credit 

under 2SG3 

when  deemed  continuing  guarauty . . . .  2SG4 
writer  lialile  without  notice,  wlicn.  . . .  2SG5 
Vriter  liai)Ie  only  for  credit  didy  given.  2SG0 
credit  giv  en  must  agree  with  terms. . ..  2SGG 

Letters,  ownership  of  private 985 

containing    valuables,    when    common 

carrier  not  liable  for  loss  of 2177 

IiiabiMties  of   minora  and   persons  noa 

compos  for  wrongs 41 

husband  for  support  of  wife 174 

depositary,  for  damage  from  wrongful 

use  of  deposit 1835 

depositary,  for  damage  from  negligence.   1840 

of  innkee|)ers 1S59 

innkeejiers,  when  excused  from 1860 

finder  of  lost  property 1SG5 

.    factor  to  principal 2029 


BIO. 

Llabflities,  factor  cannot  relie%'e  himself 

from 203O 

of  shii)-master  on  abandonment  of  ship  2041 

carr't  r  n.ay  Lcrminate  his,  how 2121 

of  inland  carrier  for  loss 2194 

inanno  can  ier  for  loss 2197,  219S 

trustee  mingling  trust  funds, 2236 

trustee,  for  broach  of  trust 2237,  223S 

partners 2442,  2443 

one  held  out  as  partner 2444,  2445 

indemnity  a'^ainst 2778 

Libel,  defamation  by 44 

defined 4.5 

License,  marriage 69 

person  solenmizing  marriaje  must  re- 
quire production  of. ... 72 

marriage,  original  to  be  filed  with  re- 
corder        74 

copy  given  to  parties 7-4 

to  take  tolls  on  bridges,  wharf,  ferry. .     52S 
Lieu  of  hotel,  inn.  boardingdiouse,  and 

lodgiugdiouse  keepers 1861 

homestead  liable  for  certain 1241 

does  not  revoke  prior  will 1301 

seaman  not  to  lose  his,  by  agreement. .  2052 

of  carrier  for  freightage 2144 

carrier  for  fare 2190 

for  freightage,  ship's  manager  cannot 

give  up 2389 

of  partner  upon  partnership  property..  2405 

of  mining  partner 2514 

of  miain ,'  partner,  [)urchaser  of  inter- 
est takes  subject  to 2517,  2518 

accessory  to  some  obligation 2909 

defined 2872 

general,  defined 237-4 

of  attorney  at  law 2S74  n. 

special,  deiined 2875 

right  of  holder  of  in  certain  case 2S76 

contracts  subject  to  law  of 2877 

how  created 2881 

by  operation  of  law  does  not  exist  until 

performance  due 2882 

createil  upon  future  interest 2883 

created  as  security  for  future  obliga- 
tion   2884 

cannot  transfer  title 2888 

redemption  cannot  be  restrained 2889 

do  not  imply  personal  obligation 2890 

confined  to  original  oblii^ation 2391 

do  not  limit  creditor's  right  to  enforce 

obligation 2892 

holder  U'lt  entitled  to  compensation  for 

trouble 2893 

priority  of.  according  to  creation 2397 

priority  of  mortgage  over  other 2893 

order  of  report  in  case  of 2S99 

redemption,  who  has  right  of 2903 

redemption,  when   inferior   lienor   has 

right  of 2904 

redemption,  how  made 2905 

extinguislicd,  liow 2910,  3046  n. 

by  sale  or  conversion  of  subject 2910 

by  lapse  of  time 2911 

not  by  partial  performance  of  obliga- 

tion.. 2912 

by  restoration  of  subject  to  owner 2913 

of  pledge  dependent  on  possession  ....  2983 
Lohler  may  pledge  subject  to  extent  of 

lien...... 2990 

of  seller  of  real  property 3046 

waiver,  loss  of 3046  n. 

of  seller,  liow  waived 3047 

against  whom  valid 3048 


654 


INDEX. 


SKO. 

Lien  of  seller  of  personal  property 3040 

of  Ijujcr  of  real  property SOiJO 

for  services  on  personal  property 3051 

of  nianufacturci-,  repairer,  etc.,  of  per- 
sonal property  - 30.")2 

of  factor 30J3 

banlier 30.34 

ship  master 30,35 

mates  and  seamen 30.36 

Siieritfs  anJ  similar  officers 30.37 

of  judgment 30.38 

of  meolianic   3059 

npon  ships  for  debts 30()0 

loggers'  lien ... .    3060  n. 

stoppai^  in  transit  as  mode  of  enforce- 
ment    3076 

damages  for  conversion  of  property  sub- 
ject to 3338 

Liens,    meclianios'.      See    Mechanics' 

Liens. 
Life  insurance.     See  Insurance,  Life. 

Limitations  for  divorce 1-24,  127 

of  cl.'iiin   of  alieua   to   inherited  prop- 
erty       G7'2 

of  leases  of  certain  real  property.  .  .717,  71S 

of  successive  estates  for  life 774 

clear  and  distinct,  in   grant,  not   con- 
trolled by  other  words 10G3 

words  of,  in  will I  ;V.>5 

Lineal  warranties  abolished 11  Ij 

Liquidated   damages,    when    contract 

may  tix,  furl)icc;ch 1670,   1671 

Liquidafcon,     See  I'artnetisiiip. 
Literary  corporations.    See  Corpora- 
tions, Kinds  ok. 
Loan,  ship-master  may  borrow,  on  credit 

of  owner 2374 

ship's  manager  has  no  power  to  bor- 
row on  cargo  or  ship 2.'^S0 

rights  of  lender  under  bottomry. 3023,  ."02.3 

For  exchawf  delincd 1902,  1 903 

transfers  ti^ie ]'J04 

contract  cannot  be  modified  by  lender  1905 

provisions  apphcable  to 1906 

For  «.se  defined 1 SS4 

does  not  transfer  title 1SS5 

borrower  under,  must  use  what  care.   1886 
borrower  of  animals,  obligations  of. .    1887 

borrower  must  use  what  skill 1888 

when  to  lepair  injuries 1S89 

how  must  use  tiling  lent 1890 

must  not  relend 1891 

when  to  bear  expense 1892 

lender  liable  for  defect 1893 

may  refjuire  return  of  thing  lent 1894 

when  may  terminate 1 895 

duties  of,  on  termination  of 1896 

0/ money  defined , l'J12 

to  be  repaid  in  current  money 1913 

for  reward 1014 

reward  for,  called  interest 1915 

annual  rate  of  interest 1916 

legal  interest 1917,  1918 

interest,  when  becomes  part  of 1919 

interest  on  jud^'ment 1020 

Under  boltomry  defined 3017 

rate  of  interest ,3022 

rights  of  lender 3023 

when  due 3026 

Lodgins-house  keepers,  lien  on  baggage  1801 

sale  of  unclaimed  baggage  by 1862 

posting  of  statement  of  charges  by. . . .   1863 
number  of  cubic  feet  required  for  each 
person 1950,8, 


EKO. 

Lodgings,  for  what  term  presumed  hired  1944 

rent,  when  payable 1947 

Loss  by  collision  of  ships,   how  appor- 
tioned    1973 

of  thing  deposited,  obligation  of  de- 
positary    1838 

innkeeper,  when  not  liable  for 1860 

employer  must  indenuiify  employee 

for,  caused  by  negligence  of  former  1971 
by  jettison,  how  borne. ......   2151,  2152 

liability  of  inland  carrier  for 2194 

of  marine  carrier  for 2197 

in  partnership,  share  of  partners  in. .   2403 
in  partnership,  agreement  for  division 

of,  when  implied 2404 

partner  to  be  indemnified  for  certain  2412 

insurer  liable,  for  what 2626 

liable  when  incurred  in  rescue  from 

peril 2627 

insurer  not  liable  for,  when   caused 

by  peril  not  insured  against 2628 

not  liable  when  caused  by  fraud  of 

insured 2629 

when  caused  by  negligence 2629 

notice  of,  must  be  given 2633 

defects  in  notice,  how  waived 20.35 

delay  in  notice  of,  how  waived 2636 

r/(  marine  insurance,  total  or  partial  . .   2701 

when  partial 2702 

total,  may  be  actual  or  constructive  2703 

total  actual,  defined 2704 

total  constructive,  defined 2705 

actual,  when  presumed 2706 

notice   of    abandonment   not   neces- 
sary on 2709 

free  of  average,  defined 2711 

insurance  coutined  to,  does  not  cover 

constructive  loss 2712 

how  estimated,  under  open  policy..  2741 
cfi"ect  of  total,  on  contract  of  bottomry  3025 
Lost  property.    See  Findkk. 
Luggage,   lien  of  liotel,    inn,    boarding- 
house,  and  lodging-houso  keejiersou  1861 

sale  of  unclaimed,  for  storage,  etc 1862 

common  cariier  of  persons  must  carry, 

when 2180 

defined 2181 

common  carrier  of  persons,  how  must 

carry...    2181 

liability  of  common  carrier  for . .   2182 

common  carrier  must  deliver,  where  . .   218.3 
common  carrier  has  lien  upon,  foi  fare  2190 
Lunatics.     See   Persons  of   Unsound 
Mind. 

Mail,  notice  of  dishonor  by 3144 

notice  of  dishonor  sent  b}',  when 3148 

notice  of  dishonor  excuseil  when  there 

is  none 3155 

Majority,  words  giving  joint  authority 

gives  such  to 12 

of  members  of  mining  partnership  con- 
trol business 2520 

Majority,  age  of,  what  is 25 

period  of  miuoritj',  how  calculated. ...       26 

Males  under  twenty-one,  minors 25 

of  eighteen   and    upwards   capable   of 

marrying 56 

Malice,  when  not  inferred  from  publica- 
tion         47 

interest  as  damages  in  case  of 3288 

exemplary  damages  for 3294 

Mauufactiire,  agreement  to,  need  not  be 

in  writing 1740 

implied  warranty  on  sale  of 1769,  1770 


INDEX. 


655 


SEO. 

Marine  cartlers.     See  Carriage;  Car- 

KIFR,  CoMMOX. 

Marine  insurance.    See  Insurance. 
Marks  on  gooila  sold,  implied  warr;inty 

of  genuiiieuess 1773 

Marks,  trc(de.     See  Trade-marks. 

Marriage,  duliiied 55 

who  cai>al)le  of 56 

proof  of,  liow  made 67 

when  voidiihle  from  incapacity 5S 

vlien  voidable  from  fraud  or  force 58 

incestuous 59 

between  wliitea-ind  negroes,  etc.,  void.  CO 

subsequent,  when  void Gl 

prorni.se,  when  neither  party  held  by . ..  62 

contracted  without  state 63 

how  solemnized 63 

license 69 

by  whom  solemnized 70 

no  particular  form  for  solemnization. . .  71 

substantial  requisites  for  solemnization  72 

certii'iuate 73 

certificate   to    parties  and   county    re- 
corder   74 

registry  of 74 

declaration,  how  made 75,  76 

declaration  to  be  recorded 77 

action  to  affirm  unsolenniized 78 

action  whuie  party  denies 78 

duty  of  recorder  as  to  registry 79 

judicial  determination  of  void 80 

when  annulled 82 

action  to  annul,  when   and   by  whom 

commenced S3 

children  of  annulled 84 

custody  of  cliildren  of  annulled 85 

eHect  of  judgment  of  nullity 86 

dissolution 90 

Lusliand   not  liable  for  debts  of   wife 

contracted  before 1 70 

legitimacy  of  i^,sue  after  dissolution. . .  194 

releases  from  parental  authority 204 

of  ward,  sujiersedes  guardian 254 

restraint  upon,  when  void 710,  1G76 

cfTcct  of,  upon  will  made  previous.  1298- 1300 

damages  for  l)reach  of  promise  of 3319 

Marriage  settlements,  how  executed . .  ITS 

acknowledged  and  recorded 179 

effect  of  i-i'cui\!ingor  non-recording .  180 

minor  may  make 181 

Married  vvonren  may  become  corpora- 
tors, odiceis,  and  members  of  certain 

corporations 2S5 

stock  of,  how  transferred 3-'5 

dividends  p;>yable  to 325 

may  hold  stock  in  homestead  corpora- 
tions       5GI 

in  savings  and  loan  corporations 575 

grant  l)y,  acknowledged  how 1093 

power  of  attorney  acknowledged,  how.  1094 

acknowledgment  by,  to  instrument. .  ..  1 186 

efl'ect  of  conveyance  by 1 187 

form  of  certificate  of 1191 

may  dispose  of  separate  property  by 

will 1273 

Marshalins  assets,  order  of 2809,  3433 

Masculine    gender,   includes    feminine 

an!  neuter 14 

Masonic  trateraity,  may  hold  what  real 

estate 596 

Master  an  1   servant,  mutual  right  of 

protect  on  b  twe<  n 49,  50 

abduction  or  entic<  meat  of  servant  for- 
bidden    i9 


BEO. 

Master  and  servant,  injury  to  servant 

forbidden 49 

relation  of  master  and  servant 204 

contract  of  apprenticeship 264 

act  of  April  3,  1876,  as  to  apprentice- 
ship       276 

who  may  bind 270  " 

liabilities  and  obligations 276 

relation,  in  general 2009 

defined 2009 

term  of  hiring 2010,  201 1 

renewal  of  relation  between 2012 

time  of  service 2013 

servant  to  deliver  over  to  master  with- 

ou  t  demand 2014 

master  may  discharge  sers-ant 2015 

relation,  how  terminated 2015 

Master,  ship's.     See  Siupn  and  Ship- 
ping. 

Mate,  power  of  master  of  ship  over 2037 

defined 2048 

how  engaged  and  discharged 2050 

when  wages  of,  begin 2055 

if  vessel  uuseaworthy,  may  refuse  to 

serve 2051 

wrongfully    discharged,    may    recover 

wages 2057 

disabled  on  voyage,  entitled  to  wages. .  2062 
cannot  ship  gootls  on  his  own  accoimt.   2064 
Materiality  of  concealment  in  insurance  25G5 
of  representation  in  insurance,  how  de- 
termined     2581 

Materials,    ownership  of   thing   formed 

out  of,  of  another 1023 

of  thing  formed  by  uniting  inseparable  1029 
of  personal  property  by  uniting,  of  sev- 
eral owners 1030 

agreement  to  manufacture,  where  man- 
ufacturer owns 1 740 

Maturity,  apparent,  define<l 3132 

of  bill  payable  at  sight 3134 

of  promissory  note  payable  at  s'ght.  . .   3135 

Masims  of  jurisprudence 3509 

Mayor  may  solemnize  marri;ige 70 

may  take  proof  and  acknowledgment  of 

instruments 11S2 

Measure  of  d:jmase3.     See  Damages. 

Mechanics'  liens,  wliere  regulated 3059 

Mechanics'  institutes,  act  providing  for 

formation  of 286,  s. 

Memorandtim  on  contract  for  sale  of 

personal  property 1739 

on  contract  for  sale  of  real  property. . .    1741 

of  auctioneer  binding  on  parties 1798 

of  auctioneer  to  contain  wiiat 1798 

Merchandise,   implied   warranty   as   to 

quality  of 17GS-1771 

Merger  of  interests,  when  destroys  ser- 
vitude       811 

of  interests,  when  destroys  hiring  ....   19.33 

of  declarations  of  trust 2254 

Messages,  carriers  of.    See  Carriage; 

Cakkiers;  Telegraph. 
Mind.     See  Puoduct  of  Mind. 
Mines,  protection  of  stockholders  in.. 321,  587 

consolidation  of 361 

what  ai)purtenances  to,  deemed  fixtures     661 

partnership  in,  defined 2511 

partnership,  how  formed 2512 

rights  of  partner  in ....2513,  2514 

wlien  partnership  property 2515 

partner  may  convey  inter(  st  .........  2516 

elTect  of  purchasing  partnership  inter- 
est.....  2517,  2518 


656 


INDEX. 


BEO. 

Mines,  power  of  partner  as  agent 2519 

uiajority  of  niemburs  to  conduct  busi- 
ness    2520 

Miuing   corporations.      See  Corfoka- 

TIONS. 

Mining  partnerships.     See  Partner- 
ships. 

Minors,  w  ho  are 23 

period  of  minority  how  calculated. ...       26 

custody 3'2 

cannot  give  delegation  of  power 33 

cannot  make   contract  respecting  real 

estate,  when 33 

contracts  subject  to  disaffirmance 34 

when  may  di-saiTirni 35 

cannot  disaffirmcontract  for  necessaries,       3G 
cannot  disaliirm  certain  obligations ....       37 

liable  for  wr(iu;.;3 41 

not  for  exemplaiy  damages 41 

how  may  enforce  rights 42 

when  cajiable  of  marriage 56 

wife  entitled  to  earnings  of,  living  with 

her,  apart  from  husband 196 

capable  of  marriage,   may  make  mar- 
riage settlement 181 

when  wages  may  be  paid  to 212 

may  appientiee  themselves 20-4 

act  of  April  3,  1S70,  as  to  apprentice- 
ships of  276 

stock  of,  may  be  represented  at  meet- 
ing of  corporation 313 

stock  in  homestead  corporations 5GI 

stock  in  savings  and  loan  cori)orations.     575 
restraints  upon  marriage  of,  allowed. . . 

710,  1676 

allowance  out  of  fund  for  support  of. . .     726 

may  contract,  to  what  extent 1557 

Misrepresentation  by  depositary,  when 

renders  liini  liable 1838 

trustee  must  not  benefit  by 2228 

partner  must  not  benefit  by 2411 

fraudulent,  by  debtor,  as  to  value  of 

pledge 2999 

contract  through,  not  specifically  en- 
forced    3391 

Mistake  in  wi  1,  how  corrected 1340 

consent  to  contract  given  by,  voidable.   1506 

of  fact  or  law 1576 

of  fact  (lelined 1577 

of  law  defined 1578 

of  foreign  law  mistake  of  fact 1579 

in  written  contract  disregarded 1G40 

riglit  to  rescind  for,  when 1090 

thing  obtained  througli,  restored  wlien. 

1712,  1713 

thing  gaineil  by,  held  in  trust 2224 

Misture  of  trust  fund  by  trustee 2236 

of  goods.     See  CoNKO.sioN  OF  Goods. 
Mock  auctions.     See  Adctions. 
Money,  performance  in  respect  to  pay- 
ment   1473 

offer  to  p;iy,  how  made 1500 

exchange  of 1S04 

implied  warranty  on  exchange 1S07 

investment  of  trust 2201 

negotiable  instrument  must  be  payable 

in 3088 

Month  d.  lined 14 

Monuments,  cotcrniinous  owners  bound 

to  maintain 841 

Moral  obligation,  how  far  good  consid- 

erat  ion 1G08 

Morals,   contract  contrary  to  good,  im- 

lawf  ul 1GG7 


Mortg;age,  power  to  sell  in,  deemed  part 

of  seeuri  ty 853 

to  be  recorded 1 IG4 

separate  book  for  recording   1171 

homestead  lial;!c  for 1241 

husband  and  wife  nmst  acknowledge, 

of  homestead 1242 

on  property  not  a  revocation  of  will.    1302 
insurance  by  mortgagor  for  benelit  of 

mortgagee 2541 

insurance,  efi'ect  of  mortgagor's   ac- 
tion     2542 

lien  discharged  by  lapse  of  time  ....   291 1 

defined 2!)21 

on  wliat  created 2921 

how  only  created,  renewed,    or  ex- 
tended     2922 

a  note  will  not  renew  mortgage  when 

barred 2922  n. 

a  special  lien 2923 

what  deemed 292-f 

al)solute  transfer  shown  to  be,  when.  2925 

on  what  lien 2926 

does   not  entitle  mortgagee   to  pos- 
session     2927 

mortga^'co  may  acquire  possession  by 

new  agreement 2927 

not  a  personal  obligation 2928 

person  bound  by,  may  not  impair  se- 
curity     2929 

title  acquired  subsequent  to,  inures  to 

mortgagee 2930 

may  be  foreclosed 2931 

power  of  sale  given  by 2932 

power  of  attorney  to  execute,  how 

made 2933 

recording  assignment 2934 

recording  assignment,  when   not  no- 
tice    2935 

assigument  of  debt  secured  by,  carries 

security 2936 

how  discharged 2938-2940 

penalty  for  not  acknowledging  satis- 
faction    2941 

bottomry  and  respondentia  not  gov- 
erned l)y  law  of 2942 

what  subject  to 2947 

form  of  real  property 2948 

what  must  be  recortled  as 2949 

conveyance    with     mortgage    under 

cover,  how  defeated 2950 

of  real  jiroperty,  how  acknowledged, 

recorded,  etc 2952 

proceedings  on  foreclosure.  See  Foke- 

CLOSUKE. 

0/  pi'Vfional  property,  on  what  may  be 

made 2955 

form 2956 

when  void  against  creditors  and  in- 
cumbrancers     2957 

of  ship,  wlicn  void 29«")8 

wliere  recorded 2959 

of  property  in  transit COCO 

of  projierty  of  common  carrier 29G1 

recoriling  in  dillercnt  places 29(52 

how  acknowleilged,  recorded,  etc. . .  29G3 
certified     copy    recorded     in     other 

county 2964 

property  wlien  exempt  from  operation 

of 2UG5,  2066 

may  be  foreclosed 2907 

property  in,  may  be  attached 29G8 

proceedings    when    property    in    at- 
tached  29G9,  2970 


INDEX. 


657 


Mortgage,  Of  personn  I  property,  provis- 
ions conceniing,  do  not  apply  to  ship  2971 

on  growiiij^  crops 295.3,  2972 

Mother  of  illegitimate  unmarried  minor 

entitled  to  custody 200 

father  cannot  transfer  custody  of  child 
without  written  consent  of 197 

illegitimate   child    cannot   be  adopted 
without  consent  of 224 

consent,  when  necessary  to  apprentice- 
ship       2G5 

of    illegitimate   child   succeeds    to   his 

property l."SS 

Mutuality  of  consent 15S0 

of   intention,    contract    interpreted   to 

give 1 633 

Name  of  adopted  child 22S 

of  corporations  to  be  stated  in  articles,     200 

ern)r  in  articles  of  incorporation  does 
not  invalidate 357 

notice  of   change  of   partnership  suffi- 
cient notice  of  dissolution 2454 

fictitious,  when  may  lie  used 2466,  24G7 

cortilicate  of  change  of  partnership  to 
be  flle.l  and  published 24G9 

county  clerk  to  keep  register  of  part- 

■  nership 2470 

Navigation,  domestic 9G2 

foreign 902 

rules  of 970 

collision  from  breach  of  rules 971,  972 

Necessaries,  minors  and  ptjrsons  of  un- 
sound mind  cannot  disatSrm  contract 
for 36 

neglect  of  husband  to  provide,  ground 
for  divorce 105 

furnished  to  wife  at  cost  of  husband  . ,     174 

promise  of  adult  ciiild  to  pay  for,  fur- 
nished parent,  valid 203 

furnished  to  child,  when  parent  liable.     207 

furnished    to    child,   when    parent   not 

liable 208 

Negligence.    See  Care;  Contkibctory 

NliGLICKNCE. 

■willful,  of  husband,  ground  for  divorce       92 

willful 105 

must  continue  how  long  to  constitute 

ground  for  divorce 107 

•willful,  ground  for  annulling  indentures 

of  apprenticeship 276 

liability  for 1714 

liability  of  depositary  fcr 1838,   1S40 

liability  of  innkeeper  for 1859 

borrower  to  repair  injuries  caused  by. ,    1SS9 

hirer  to  repair  injuries  caused  by 1929 

employer  must  indemnify  employee  for 

loss  caused  by 1 071 

responsibility  of  employee  for 1990 

currier  cannot  exonerate  himself  from 

anticipated  liability  to  be  caused  by 

future 2175 

carrier's  liability  for 2186  n.,  2196  n. 

person  ciaimiiig  under  ostensible   au- 

tliority  must  be  fiee  from   2.134 

of  agent,  princi])al  responsible,  when..   2333 
ship-master,  when   responsible   for,  of 

employees 2383 

ship-master,  when  responsible   for,  of 

pilot 2384 

insurer,  -ivhen  liable  for  loss  through. .  2629 
Negotiable  instrument.    See  Bills  op 

Exchange  ;    Notice  ;    PRoiiissoRY 

Notes. 
defined 3087 

Civ.  Code— 42 


BEO. 

Negotiable  instrument,  to  be  for  uncon- 
ditional payment  of  money 3083 

payee  must  lie  ascertainable,  when. . . .   3089 

in  alternative 3090 

date 3091 

may  contain  pledge 3092 

nuist  not  contain  other  cotitraot 3093 

may  bear  any  tlate 30^4 

tiifl'erent,  species 3095 

iiiterpretation   of,  as    to  time  of   pay- 

mt^nt 3009 

as  to  place  of  payment 3100 

■when  payable  to  order 3101 

wlien  issued  unindorsed 3102 

when  payiiblc  to  fictitious  person 3103 

wluai  and  for  what  presumed  to  be  made  3104 

in<lorsement  of,  defined 3103 

h(jw  to  be  made 3109 

may  be  made  on  separate  paper,  when.  31)0 

gcnei^al,  delincd 3irJ 

special,  delined 3113 

general,  how  made  special. 3ili: 

special,  how  may  destroy  negotiability.   .3115» 

iniplied  warranty 311 K 

before  delivciy  to  payee,  effect 3117' 

■without  recourse,  elTect 31 18,  3119 

gi\-es  privity  to  c^mtract 3120 

without  consideration,  when  binding. .   3122 

in  due  course,  defineil 3123 

in  due  course,  rights  conferred  by 3124 

in  due  course,  of  instrument  in  Ijlank  .  .    3125 
presentment    for   payment,   not  neces- 
sary to  charge  principal 3130 

how  made 3131 

apparent  maturity  of,  delined 3132 

surrender  or  proof  of  loss,  may  be  re- 
quired on  payment 3137 

dishonor  define<l 3141 

notice  of  dishonor,  by  whom  given 3143 

form  of  d  shiuior 3143 

notice  of  dishonor,  how  served 3144 

how  served  after  death  of  i)arty  notified.  3145 

given  in  ignorance  of  death,  valid 3146 

at  what  time  given 3147 

■when  to  be  mailed 314S 

agent  need  only  give  principal 3149 

time  allowed  party  receiving  to  give. . .   3150 

takes  effect  in  whose  favor 3151 

wlien  excused 3155 

presentment   and   notice   of    dishonor, 

when  excused 3150,  3157 

delay  in,  when  excused 3153 

how  waived 3159 

how  extinguished 3164 

implied  warranty  on  sale  of 1774 

duties  of  agent  employed  to  collect 2021 

Neuter  gender,  included  in  masculine. .       14 
Neutral   papers,  implied   warranty,   in 

marine  insurance 268S 

Nominal  damages,  when  allowed 3360 

Non-re '.ident,  stock  of,  how  transferred     320 
alien  inheriting,  wiien  must  make  claim     672 
Notaries  public,  may  take  acknowledg- 
ment or  proof  in  state 1 181 

acknowled  ment  or  proof  out  of  state.    1182 
acknowledgment  or  proof  out  of  United 

States..' 1183 

offer  of  f)erfonnancc  made  to,  M'hen. .  .    1485 
negotiable    instrument    presented    to, 

when   3131 

bill  of  exchange  payable  at  office  of, 

when 3176 

bill  presented  to,  when 3186 

bill  protested  by,  when 322C 


6."»8 


INDEX. 


Notaries  public,  protest,  how  marie 3'J'27 

uiakin;,'  piotvst,  may  givo  notice 32ol 

Note,    promissory.      Soe    l'i;o>iissoRY 

NOTK. 

Kotioe,  actual,  Jcfined 18 

coii'^triictive,  dclined IS,  19 

possession  as 19  ii.,  1217  n.,  29r)0  n. 

liling  iuventoty  of  wife's  jiropfrty  as. .     1G6 
to  stocklio!tlcr9  (if  meeting  to  continue 

corporate  existence 2S7 

of  meeting  of  corporation 302 

of    directors   an<l    stockholders    to    be 

gi  ven  1  'y  banks 321 

,    assessment  <jf  stock 33i> 

deliniiuent  assessment 337-3;>9 

to  tenant  at  will  to  quit 7S9 

■    effect  oi  such 790 

of  intention  to  re-enter 791 

not  necessary  before  action 793 

rights  of  purchaser  for   value  without 

SoG,  8G9 

record  of  conveyance  as 1207 

record  of  instrument  as 1213 

'Unrecorded  instrument  valid  as  between 

parties  with 1217 

liustrnmeuts   not  avoided  against   pur- 
chaser with 1228 

■of  appropriation  of  water 1415,  1416 

•  of  selection  of  one  of  several  alterna- 

tives     1449 

^    of  selection  of  place  of  delivery 1738 

of    adverse    claim    to   deposit,    to    de- 
positor    1S25 

depositai-y    must    give,    of    deposit   to 

real  owner 1826 

of  sale  of  deposit  in  danger  of  perishing  1837 
duty   of  gratuitous   depositary   ceases 

ui)on 1847 

innkeeper  exempted  by  giving  certain.    ISGO 

of  thing  found 1SG5 

hiring  terminated  by  what 1934 

tenant  must  give  landlord,  of  adverse 

proceeding ]  949 

hirer  of  real  property  may  repair  after.  1942 
of  personal  property  may  repair  after. .  19r)7 
certain,  terminates  employment.  .  199G,  1999 
of  arrival  of  freight,  to  consignee,  wlien  2120 
of  storage  of  freight,  to  consignee,  when  2121 
by  ti'ustee,  of  accpiisition  of  ailverse  in- 
terests      2233 

to  principal  or  agent,  when  deemed  to 
other 2332 

•  of  renunciation  of  partnership,  relieves 

partner 2417 

personal,  of  dissolution  of  partnership, 
wlien  necessary 24.'53 

•  by  chaage  of  name  sufficient 2454 

of  dissohition  of  special  partnership. . .   2."J09 

•  of  loss  under  insurance 2033 

of    loss   under  insurance,    defects    in, 

how  waived 2635 

delay  in,  how  waived 2G36 

abandonment  of  ship  to  insurer  by. . , .   2721 

requisites  of  such 2722 

of  transfer  of  life  insurance  policy,  not 

necessary,  when 2765 

of  principal's  default,  guarantor  not  en- 
titled to 2808 

to  writer  of  letter  of  credit,  wlien  neces- 
sary    2865 

recording  assignment  of  mortgage  op- 
erates as 2935 

to  be  gi\'en  before  sale  of  pledged  prop- 
erty    3002 


BEO. 

Notice  of  sale  of  pledged  property  may 

be  waived 3003 

to  carrier  or  depositary,  necessary  to 

stoppage  in  transit 3079 

of  dishonor,  to  be  given  to  indorser. .  3116 

of  diihonor,  by  whom  given 3142 

form 3143 

how  served 3144 

how  served  after  death  of  indorser,  etc. .  3145 

given  in  ignorance  of  death,  valid 3146 

at  what  time  given 3147 

when  to  be  mailed 3148 

of  dishonor   by   agent,    need   only   be 

giveu  to  i^rincipal 3149 

of    dishonor   by  party   charged   with, 

time  allowed  for 3150 

of  dishonor,  inures  to  benefit  of  other 

parties 3151 

of  dishonor,  when  excused 3155,  3220 

delay  in,  when  excused 3158 

may  be  waived 3159 

acceptor  for  honor  entitled  to 3206 

acceptance  for  honor  does  not  excuse. .  3207 
before   abatement   of    nuisance,    when 

neccssar}'' 3503 

Novation,  defined 1530 

how  made 1531 

a  contract 1532 

rescission  of 1533 

Nuisance.     See  Abatement. 

defined 3479 

nothing  authorized  by  statute  to  be 

deemed 3482 

liability  of  successive  owners 3483 

abatement  does  not  prejudice  claim 

for  dania'^es 3484 

Public,  defined 3480 

not  legalized  by  lapse  of  time 3490 

remedies  against 3 191 

indictment  against,  how  regulated..  3492 

when  private  person  may  sue 3493 

abated,  by  whom  and  how 3494,  3495 

Private,  defined 3481 

remedies  against 3501 

abated  by  whom  and  iiow 3502 

only  upon  notice,  when 3503 

Nullity  of  marriage,  causes  for 82 

action  to  obtain  decree  of 83 

effect  of,  on  children 84,  85 

efTect  of  judgment 86 

Nuncupative  will  need  not  be  in  writ- 
ing   1276 

how  executed 1283 

requisites  to  make  valid 1289 

proof  of 1290 

probate 1291 

Oath  defined 14 

person  solemnizing  maniage  may  ad- 
minister    72 

person    taking     acknowledgment    au- 
thorized to  administer 1201 

Objections     to    oiler    of    performance, 

where  made 1501 

Obligation,  minor  cannot  disaffirm  cer- 
tain   37 

general  rules  for  interpretation  of 1423 

defined 1427 

how  arise 1 428 

rules  for  interpretation 1429 

kinds 1430 

when  joint 1431 

contribution  between  joint  parties....  1432 

when  conditional 1434 

couditioual,  species  of 1436 


INDEX. 


650 


Obligation,  conditional,  what  done  be- 

toic  cnforciu,:^ 1439 

coiulitioual,   wjien    performance    ex- 

ciise.l 1440 

wlicii  conditions  void 1441 

involving  forfeiture,  bow  interpreted  1442 

suliject  of  ownership 1055 

how  far  good  consideration 1606 

implied  warranty  on  sale  of  written 

executory 1774 

not  implied  from  creation  of  lien ....   2S91 

epecilio  j^rforniance 23S4 

transfer  of  bunleu 1457 

transfer  of  right 1458 

alternative,   who  has  right  of  selec- 
tion     1448 

right  of  selection,  how  lust 1449 

alternative,  indivisible 1450 

alternative,  effect  of  nullity  of   one 

or  more 1451 

Exd  irlionof,  by  performanoe 1473 

oifer  of  performance 1485 

of  pecuniary  obligation 1500 

by  prevention  of  performance 1511 

•when  part  perfonnauce  operates  as. .    15:24 

by  accord 152 1 

Batisfaotion 1523 

novation 1530 

release 1542 

by  rocission 1688 

Im]>osfU  hy  law,  to  abstain  from  injury  1 70S 

compensate  for  dect,  it 1709 

restore  thing  wrongfidly  acquired. . ,    1712 

restore  thing  lipon  demand 1713 

restore  thing  without  demand 1713 

compensate  for  negligence     1714 

Occupancy,  property  aciiuireJ  by 1000 

titlo  by lOOG 

Occupation.     See  rossEssiox. 

Odd   Fellows'  Association   may  hold 

how  much  real  estate 596 

Offer,  to  contract,  acceptance,  how  made  1582 

to  conti'act,  what  deemed 1584 

must  bj  absolute 1585 

revoked,  when 15S6 

bow  revoked 1587 

of  guaranty,  not  binding 2795 

Offer  of  perfonuanco  jiasses  title  to  per- 
sonal jiroperty  under  executory  agree- 
ment of  sale 1141 

extinguishes  obligation 14S5 

extinguishes  obligations  for  payment  of 

money,  when 1500 

partial 1486 

by  whom  made 1487 

to  whom  made 1483 

where  made 1489 

when  made 1469,   1491 

with  compensation  for  delay 1492 

to  be  ill  good  faith 1493 

must  be  unconditional 149-4 

unconditional,    except    as    to    certain 

cases 1 49S 

party  nnist  be  able  to  perform 1495 

receipt  may  be  require<l  upon 1499 

objections  to  mode,  when  waived 1501 

thing  oriTered  need  not  be  produced. . ..   1496 

thing  olfered  to  be  kept  separate 1497 

thing  oll'ered,  vests  in  creditor 1502 

how  to  l<e  kept  by  <lebtor 1503 

effect  of,  on  accessories  of  obligation  . . .  1504 

what  excuses 1511 

effect  of  refusal  to  accept  performance 
made  before 1515 


BEO. 

Offer  of  performance,  Hen  redeemed  by  2905 
ab.lity  and  willingness,  when  equi.a- 

lent  to 3130 

of  concurrent  conditions,  when  neces- 
sary    1439 

when  excused 1 440 

by  any  person  exonerates  surety 2S;>9 

OaicG,  exercise  of,  not  restrained  by  in- 
junction  3423 

Olographic  ■will  defined 1 277 

need  not  be  in  writing 1276 

Opinion,  information  as  to  matters  of, 

need  not  be  given  on  insurance 2570 

Oppression,  avoids  contract,  when.  15G7,   1569 

exemplary  damages  in  case  of 3294 

interest  as  damages  in  case  of ....  32S3 

Option,  of  owner  in  confusion  of  goods, 

as  to  value  or  thing  itself 1032 

selection  i)etwccn  alternatives. . . .  1448-1450 
as  to  place  of  offering  performance. . . .  1489 
as  to  delivery,  notice  of,  must  be  given  1756 

how  waived 1758 

of  beneliciary,   in  breach  of   trust  by 

trustee 2237 

of  payee,  as  to  payment  of  negotiable 
instrument 3090 

Oral  statements.     See  Wkitixgs. 

transfer,  when  may  be  oral 1052 

nuncupative  will 1276 

wiiat  coitracts  may  be  by  parol 1C22 

negotiations  superseded  by  writing. , ..    1G25 

contract  in  writing,  altered  by 1693 

representation  in  insurance 2571 

declarations  of  auctioneer  cannot  mod- 
ify written  conditions  of  sale 1705 

Orphans.     See  Corporations,  Kinds  ok 
— lifliijloim,  etc. 

in  asylums,  afiprenticed,  how 265 

corporations  for  maintaining  asylums. .     286 

Over-insurance,  return  of  premium  on, 

how  made _. 2G20 

effected  by  simultaneous  policies 2021 

by  successive  policies 2622 

Ownership,  defined 054 

what  subject  of 655 

wild  animals,  when  subject  of 056 

all  property  has 659 

of  what  the  state  is  owner 670 

who  may  be  owner 67 1 

aliens  inheriting,  when  must  claim 672 

modification  of 678 

absolute 679 

qualified 680 

several 681 

joint 083 

in  partnership 684 

in  common 685,  686 

conditions  of 707 

rights 732 

of  thing,  owns  products 732 

disposition  of    income  during   suspen- 
sion of /"^ 

termination 739 

suspension  of  absolute,  of  term  of  years  770 
of   future   estate   may    use    easement, 

when 803 

of    dominant    tenement    may  enforce 

easement 809 

of  servient  tenement  may  recover  land 

subject  to  easement 810 

of  life  estate,  how  may  be  used 813 

of  estate  for  years  or  at  will,  rights.  .819,  820 
remedies  of,  for  injury  to  inheritance. .  826 
of  real  property,  rights  of 829 


6G0 


INDEX- 


SEC. 
Ownership,  in  real  property,  rights  as  to 

Louiidaries S30,  831 

in  real  proporty,  rights  to  lateral  and 

subjacent  support 832 

in  real  property,  rights  to  trees 833 

duties  of 840 

mutual  obligation  of  coterminous 841 

controversy  as  to,  of  sliip 1)04 

of  product  of  minil 980,  981 

of  tradc-marlis  and  signs 991 

good- will  of  business 992 

title-deeds 994 

fixtures l0I3 

alluvion 1014 

laud  formed  by  sudilen  removal  of  bank  1015 

islands  in  navigable  steams lOlG 

ishnds  in  unnavigable  streams 1017 

islands  formed  by  division  of  stream.  1018 
thing  formed   by  uniting   property  of 

several  owners 1025,   1030 

thing  formed  by  one  with  materials  of 

another 1028 

of  thing  formed  by  uniting  materials. .  1029 
for  life  or  years,  effect  of  conveyance 

by,  in  excess  of  estate 1 108 

water,  iiow  acquired 1410 

thing  obtained  without  consent  to  be 

restored 1712 

notice  to,  of  thing  deposited 1826 

delivery  of  deposit  to  joint,  how  made.  1S27 
finder  of  lost  property  to  give  notice. . .  18G5 
finder    of    lost  property    may   recpiire 

proof  of 1866 

of  property  found,  may  exonerate  him- 
self from  claim  of  llndcr   1871 

effect  of  insurance  by  part 2J90 

Parent  and  child,  term  "children"  in- 
cludes what 14 

■unborn  cliiltl,  for  what  purpose  deemed 

existing 29 

abduction  of  parent  or  child 49 

marriage  between,  incestuous 59 

child  of  aimuUed  marriage,   how  may 

succeed 84 

child  of  annulled  marriage,  custody ....       85 

child  of  divorced  parents,  custody 1.'53 

child  of  divorced  jjarents,  support 139 

liability   of    community   property    for 

support  of  child 143 

chil.l  of  divorced  parents,  legitimacy.  144,  145 
parents,  on  separating',  may  make  pro- 
vision for  support  of  child 159 

legitimacy  of  child  l)Orn  in  wedlock. . .  193 
legitimacy  of  child  born  out  of  wedlock     194 

who  may  disputo  legitimacy 195 

obligation  for  support  and  education  of 

child 198 

custody  of  legitimate  child 197 

when  neither  parent  has  superior  right 

to  custody  of  child 198 

when  parent  may  bring  action  for  ex- 
clusive control  of  child 199 

custody  of  illegitimate  child 200 

allowance  to  paient  for  support  and 

education  of  child 201 

parent  cannot  control  property  of  child  202 
action  for  abuse  of  parental  authority.     203 

when  parental  authority  ceases 204 

remedy  when  parent  dies  without  pro- 
viding for  support  of  child 205 

reciprocal  duties  of,  as  regards  main- 
tenance       206 

when  parent  liable  for  necessaries  sup- 
plied child 207 


Parent  and  ch3d,  when  parent  not  liable 

for  necessaries  supplie<l  child. 203 

husband  not  bound   to  support  M'ife's 

child  by  former  maiTiage 209 

compensation    and    sup[)ort    of    adult 

child 210 

parent  may  relincjuish  custody  and  ser- 
vices of  child 211 

abandonment  by  parent 211 

wagf'S  of  minor 212 

right  of  parent  as  to  residence  of  child     213 
action  for  exclusive  control  of  child. . .     214 
illegitimate  child  legitimated   by  mar- 
riage of  parents 215 

consent  necessary  to  adoption  of  child.     224 

appointment  of  guardian 241 

consent  to  apprenticeship  of  child 2G5 

right  of  posthumous  child  to  take  prop- 
erty      C98 

birth  of  posthumous  child  defeats  cer- 
tain future  interests 739 

child  born  after  will  takes  by  succession  1306 
grandchild  of  testator  unprovided  for 

by  wiil,  when  succeeds 1307 

share  of  child  born  after  will,  out  of 

what  property  taken 1308 

duress  of  child  avoids  contract  of  parent, 

when l.")G9,   1570 

advancement  to  chilil  during  life-time 
of  testator,  nprovidcd  for  by  will. . .    1309 
Parol.     See  Or.m.  Statements. 
Partial   performance.     See    Perform- 

ANCK;    Si'KUlFIC  rKRFORMA.NCE. 

effect  of 1477 

offer  of,  void 1 4S6 

when  extinguishes  obligation l.">24 

makes  oral  contract  of  sale  valid,  when   1741 
effect  on  guarantor  of  principal's  accept- 
ing   2822 

does  not  extinguish  lien 291 2 

Parties.     See  Thikd  Persoxs. 

consent  necessary  to  marriage 55 

to  marriage,  M-ho 56 

to  man  iage,  who  may  not  be 69 

to  contract,  who 1556 

to  contract,  when  minors,  etc.,  may  be  1557 
to  contract,  must  be  capable  of  identifi- 
cation     1558 

to  loan,  may  agree  to  any  rate  of  inter- 
est    1918 

to  loan,  may  agree  to  compound  interest  1919 

Partnership,  interest,  what GS4 

partner  may  agree  not  to  carry  on 
same  business  in  city  or  town  after 

dissolution 1675 

defined 2395 

joint  use  of  ship  does  not  create  ....  2396 

format  ion   2397 

property  defined 2401 

property,  partners'  interest  in 2402 

property  applied  to  p.-.rtnership  debts  2405 

lien  of  ])artner  on  property 2405 

property,  what  presumed  to  be 2406 

profits  and  losses,  how  divided 2403 

when  agreement  for  division  of  losses 

implied 2404 

obligations  of  parties 2410 

parties  must  act  in  good  faith 241 1 

to  account 2412 

to  serve  without  compensation 2413 

renunciation  of 2417 

effect  of  renunciation 2418 

certificate  and   publication  of  name 
of  partner 2466 


INDEX. 


6G1 


■EO. 

Partnership,  Oenend,  defined 2424 

bouml  by  decision  of  majority 242S 

each  partner  agent 2429 

authority  of  i)artner3 2430 

acts  ill  bad  faith  do  not  bind   2431 

■protits  of  partners  belong  to 2435 

partner  not  tu  engage  iu  certain  busi- 
ness   2436 

partner  may  engage  in  what 2437 

must  account  for  certain  profits 2438 

liability  to  third  persons 2442 

liability  for  acts  of  copartner 2443 

liability  of  one  held  out  as 2444 

•who  liable 2445 

duration  of 2449 

total  dissolution 24.")0 

partial  dissolution 24.'31 

partner  entitled  to  dissolution 24.V2 

notice  of  termination 2453 

noti'.e  of  withdrawal,  when  sufficient 

to  diss'ilve 2454 

notice  of  change  of  name 2454 

powers  after  dissolution 2458 

iii]uidation,  who  may  act  in 2459 

wlio  may  not  act  in 24G0 

powers  of  partners  acting  in. .  .2461,  2462 

use  of  fictitious  name  in 2466 

,  certilicato  and  publication  of  names 

of  partners 2466 

name  of  fcjrcign   2467 

name  of  foreign,  how  continued  ....   2468 
certificates  of  use  of  foreign  name  to 

bo  filed 2469-2471 

change  of  interest  of,  does  not  avoid 

insurance  

efTect  oi  insurance  by  one  of  several 

Miiiiinj,  how  formed 25 11 , 

ri^'lits  of  members 2513- 

liow  ciFected  by  purchase  of  interest. 

2516, 

majority  of  control 

Spcridl,  how  formed 

of  what  to  consist 

certificate  must  i)e  made 

certificate,    acknowledged     and     re- 
corded  

liability  of  partners  in  making  false 

certificate 

affidavit  as  to  sums  contributed 

reipiisites  for  forming 

certificate  publisiied 

afiidavit  of  publication  filed 

renewal  of 

who  may  transact  business 

special  partner  may  investigate  and 

advise 

may  lend  to  and  recover  from 

general    partners    may   sue  and    be 

surd  alone 

ept'cial  partner   must   not  withdraw 

capital  from 2493, 

may  rect^ive  profits  from 

transfer    of,    with    intent   to    prefer 

creditors,  void 

liability  of  general  partner  in  ...... 

of  special  jtartner   

of  8|iecial  partner  for  unintentional 

.let 

who  may  question  existence  of 

liow  made  general 

how  new  special  partners  admitted. . 

dissolution. .    

came   of   special    partner   not    used, 

when 


2557 
2590 
2512 
■2515 

2518 
2520 
2477 
2478 
2479 

2480 

2481 
2481 
24S2 
2483 
24S4 
2485 
2489 

2490 
2491 

2492 

2495 
2494 

2496 
2500 
2501 

2502 
2503 
2507 
2503 
2509 

2510 


Passengers,  power  of  ship-master  over. 
reasonable  accommoilatioii  for 

2103,  2180, 

carrier  must  carry  luggage 

liability  for  luggage 

carrier  must  deliver  luggiige 

lien  on  1  iiggage 

entitled  to  seat 

when  fare  may  be  demanded 

may  be  ejected  for  non-payment  of  fare. 

•  :• 487, 

additional  fare,  when 

if  ejected,  fare  cannot  be  collected. . . . 

accepting  ticket  assents  to  obligation 
therein 

damages  for  refusing  to  receive 

Pasture,  right,  a  servitude 

Patents,  recorded  without  acknowledg- 
ment   

Pawii.     See  Tledge. 
Pawnbrokers.     See  Pledgk. 
Payment,  defined 

ap|ilication  of  general 

obligation,  how  extinguished  by  offer  of 

elTect  of  offer  of,  on  accessary  of  obli- 
gation  

of  less  than  lifjuidated  debt 

to  agent 

•when  necessary  to  claim  on  indemnity. 

of  negotiable  instrument,  made  to  whom 

payee  <>i  negotiable  instrument  must  be 
ascertainable 

payee's  option  as  to  class  of 

of    negotiable    instrument   payable   to 
fictitious  person 

indorser,  when  liable  for,  to  payee.... 

for  honor,  made  when 

for  honor,  how  made 

must  be  accepted 

liow  made  in  case  of  foreign  bill 

time  and  place 3099, 

as  performance.     See  Pekformance. 
Penal  damages,  for  failure  to  quit,  after 
notice 

willful  liohling  over  by  tenant 

injuries  to  trees,  etc 

injuries  iuQicted  in  duel    .3347, 

Penal  la^w,  specilic  relief  not  granteil  to 

enfoi'ce 

Penalty.     See  Liquidated  Damages. 

surety  not  liable  beyond 

specific  relief  not  granted  to  enforce  . 

contract  with,  may  bo  specifically  en- 
forced  

Performance.    See  Able  and  Willing; 

PaKIIAL   PEKFOiniANCE. 

when  time  for,  falls  on  holiday 

of  ])recedeiit  conditions 

of  condition  precedent,  when  necessary 

when  excused 

of  ol  iligation 

by  one  joint  tlebtor  extinguishes  liabil- 
ity of  all 

to  one  joint  creditor 

in  moile  directed  by  creditor,  sufficient 

partial 

when  called  payment 

application  of  general 

how  excusetl  ....     

eflfijct  of  prevention 1512, 

refusal  to  accept,  before  ofTer 

of  conditions  of  proposal,  acceptance  . 

(>f  contract,  time  of 

extension  of  time,  how  effected 


BEO. 

2033 

2184 
2180 
2182 
2183 
2191 
2185 
2187 

2183 
2189 
2190 

2176 

3315 

801 

1160 


1478 
1479 
1500 

1504 
1524 
2335 
2773 
3164 


30S9 
3090 

3103 
3117 
3203 
3205 
3-J04 
32:53 
3100 


3344 
3345 
3346 
3343 


3369 

2836 
3309 

3389 


n 

1110 
1439 
1440 
1473 

1474 
1475 
1476 
1477 
1473 
1479 
15il 
1514 
1515 
1584 
1657 
1698 


6G2 


INDEX. 


Performance,   surety  imy   compel,   by 

principal 2846 

•wlic-n  i^ledyee  must  cleniand 3001 

ofTer  of.       Sec  OfFF.K  of  PKliFOKJIANCE. 

Perils.     See  Insckanoe. 

Perils  of  the  sea,  defined 2199 

Perishable  property,  sale  of,  for  f reiglit- 

rlirn     \vilf!M ^-<J-t 


P?rson  defined !•* 

Per.=ional  property.  See  Pkoperty. 
Personal  relations.  See  riELATiVE3. 
Personal    representatives    of    minor, 

when  may  liisaliirni  contract 35 

property  of  intestate  passes  to 13S4 

to  distrilmte  property,  how 1384 

possession  of    leL'acy   obtainable    only 

from 1363 

inventory  by  legatee  for  life,  when  de- 
livered to 1365 

of  seaman,  when  entitled  to  wages. ^..  2062 
l)y  succession.     See  Sdccession. 
by  will.     See  Wills. 
Persons   of   unsound  mind,  term  in- 
cludes what 14 

custody 32 

cannot  disaffirm  contract  for  necessa- 
ries         36 

when  cannot  contract 3S 

when  may  contract 39 

contracts  subject  to  reclssion 39 

powers  of,  when  incapacity  adjudged..       40 

when  civilly  liable  for  wi'ongs 41 

not  liable  in  exemplary  damages 41 

giiardiansliip 2DS 

Petition   of   judgment  creditor  to  have 

iiomestead  appraised 1245 

sucli  to  be  veritied 1246 

liled  witli  county  clerk 1247 

copy  served  on  claimant 1243 

Pew,  as  easement SOI 

r.s  servitude 802 

Pioneer  assooiation  may  hold  how  much 

real  estate .    596 

Place  of  performance 1489 

where  goods  sold,  delivered 1735 

where  goods  sold,  delivered,  option. . .    1756 

notice  of  option  as  to 1756 

where  thing  deposited,  delivered 1824 

where  thing  Iwrrowed,  delivered 1896 

of  payment  need  not  be  stated  iu  ne- 
gotiable instrument 3091 

at   whicli   negotiable   instrument    pre- 
sented  3131,  3186,  3211 

at  which  bill  of  exchange  payable 3212 

at  which  protest  made 3228 

of   payment  of  negotiable   instrument 

3099,  3100 

Pledge.     See  Deposit;  Defositahy. 

delined 2986 

what  deemed 2987 

lien  dei'.endent  on  possession 2988 

covers  increase  of  property 29S9 

lienor  may 2990 

factor  may  not 2308 

pledgor    must    deliver    possession     to 

pledgee 2988 

when  valid  against  real  owner 2991 

leiiiler  delined 2992 

holder  delined 2993 

lender  may  withdraw  when 2994 

holder,  obligations 2995 

holder     must    enforce     all     rights    of 

pledgee 2990 

pledgee  liable  as  depositary  for  reward.  2997 


Pledge,  holder,  gratuitoua,  liable  as  gra- 
tuitous depositary 2998 

further,  when  required 2999 

sale  when 3000 

Bale  not  until  demand  made 3001 

notice  of  time  and  i)lace  necessary 3002 

notice,  when  waived 3003 

demand  waived,  how 3U04 

auction 3005 

pledgor  may  compel  sale 3007 

evidences  of  debt  under  sale 3006 

pledgor  entitled  to  surplus 3008 

what  pledgee  may  retain 3009 

•when  pledgee  may  purchase 3010 

foreclosure  of 301 1 

may    be    contained    in  negotiable    in- 
strument   3092 

Plural  number  includes  singular 14 

included  iu  singular 14 

Policy  of  insurance.     See  Insurance. 

Possession,  what  notice  of  title 

19  n.,  1217  n.,  2950  n. 

summary  proceedings  for 794 

owner   of    property   in    adverse,    may 

transfer  his  title 1047 

means  of  obtaining,  necessary  to  gift. .    1 147 

of  legacies,  how  obtained 1363 

damages   for  unlawful,  of    real  prop- 
erty  3.3.34 

covenant  of,  implied  in  hiring. .. .  1927,    1955 

lease,  when  renewed  by  continued 1945 

mortgagee  not  entitled  to 2927 

mortgagee,  when  may  take,  of  personal 

pn)perty 29CG 

change  of,  necessary  in  pledge 2988 

transferred       for       security      deemed 

pledged 2987 

bottomry  independent  of 3027 

vendor's  lien  independent  of 3046 

seller  of    personal   property,    lien   de- 

jiendent  on 3049 

purchaser  of  real  property,  lien  inde- 
pendent of 3050 

lien  for  services  dependent  on 3051 

factor's  lien  dependent  on 3053 

banker's  lien  dejiendent  on 3054 

ship-master's  lien  independent  of 3055 

seaman's  lien  independent  of 3056 

ofiiocr's  lien  dependent  on 3057 

Possible,  object  of  contract  must  be. . ..  1596 

what  is  deemed 1597 

Possibility,  mere,  cannot  be  transferred. 

1045 

Posthumous  child,  when  takes  by  suc- 
cession  098,   1.339 

birth  of,  defeats  certain  future  interests     739 

deemed  living  at  death  of  parent 1403 

Power  cf  attorney.     See  Agency. 

])y  married  wmnan,  acknowledged,  how  1094 

instruments  executed  under 109.5 

how  revoked 62 1 0 

duties  of  gratuitous  employee  accepting  1977 

to  execute  mortgage,  retiuisites 29.33 

Pow<3r3,  minor  c.innot  give 33 

person  of  unsound  mind  cannot  give. . .       40 
marrieil  women  may  be  vested  with...     714 
power  to  sell  in  mortgagea  part  of  secu- 
rity and  passes  on  assignment 853 

execution  of   power   to   several  where 

some  dead 8G0 

of   revocation  when    deemed   executed 

1229,   1230 

to   devise,  how  executed    by  terms   of 
will 1330 


INDEX. 


663' 


Powers,  to  erecator,  to  appoint  execa- 

to; ,  vo.d 1372 

of  revocavion  of  tnist,  may  be  reserved 

by  trustor 22S0 

of  ra'e  may  be  conferred  by  mortgage.  2932. 
Preicr^nao,  cominou  carrier  of  messages 

except  to  government '2M01,  2208 

giving  to  creditor 3432 

Prcn:Liu-a.     See  Insurance. 

Prescription,  title  by 1007 

Presuraptica,  by  lapse  of  time  in  divorce     125 

siuh  rebutted 126 

of  residence  in  divorce 129 

of  legitimacy 193 

of  reliiiqu  shment  of  control  of  child  . .  211 
in  case  of  collision  from  breach  of  rules.     972 

of  time  of  delivery  of  grant 1055 

that  fee-simple  title  passes 1 105 

that  gift  made  in  view  of  death 1150 

that  obligation  joint,  and  not  several. .  1431 
of  intent  to  extinguish  contract,  when 

canceled 1G99 

term  of  hiring  servant 2010,  201 1 

undue  influence  on  part  of  trustee  ....  2235 

certain  property  partnership 2406 

representation   in    insurance   refers   to 

time  of  completing  contract 2577 

insured  has  knowledge  of  prior  loss  . . .  2671 

of  actual  loss  of  sliip 2708 

consideration  in  negotiable  instrument  3104 

bill  of  exchange  dishonored 3133^ 

creditor's   retention   of   part  perform- 

ance  not  voluntary 1477 

written  instrument  imports  considera- 
tion     1614 

origin  of  uncertainty  in  contract.  1649,  1654 
depositary  in  f.iult  in  certain  cases. . . .  1S38 
term  for  which  real  property  hired ....   1943 

hiring  of  real  property  renewed 1945 

certilicate  of   ship-master  in  favor  of 

sailor  true 2059 

managing  owner  of  ship  has  no  com- 
pensation    2072 

damages  caused  by  conversion 33.16 

adequacy  of  damage  as  relief 3387 

in  revising  contract,   that  parties  in- 
tended a  fair  agreement 3400 

certain   transfers,  without   possession, 

fraudulent 3440 

of  frauil,  how  repelled 3441 

Prevention  of  parfonnance  when  ex- 
cuse    1511 

rights  of  debtor  in  case  of 1512,   1514 

of  reduction  of  contract  to  writing. . . .   1023 
Preventive  relief,  only  in  special  cases, 

3275.  3366 

how  given 3368 

by  injunction.     See  Injunction, 

Price  defined 1721 

on  failure  to  pay,  seller  may  resell  or 

rescind 1749 

when  paid 1 784 

when  agent  may  receive 2.*?25,  2326 

of  real  property,  prioriti'  of  mortgage 

for 2898 

of  real  property,  lien 3046 

of  personal  property,  lien 3049 

Prinoipal,  incident  passes  by  transfer. 

1084,  3540 

attorney  in  fact  to  subscribe  name  of. .    1095 

factor  must  follow  directions  of 2027 

consent  necessary  to  release  factor  from 

liability 2030 

in  guaranty.     See  Guaranty. 


BXCW 

Principal  and  agent.     See  Agency. 

Prinoipcd  and  surety.    See  Surety. 

Printing,  included  in  word  "writing".-,       14 

Priority  of  record  priority  of  right.....   1214 

of  liens  acconUng  to  date 2897 

mortgage  for  price  of  land  has 2893 

lien  upon  single  fund  over  lien  upon 

several  funds 2899 

of  different  employments 1988 

of  surety's  property  over  principal's. . .   2850 
of  bottomry  liens 3029 

Privileged    communications    enumer- 
ated           47 

Process  serving  on  foreign  corporation. .     403 

Products  of  laud,  owner  entitled  to. . . ,     732 
tenant  for  years,  or  at  will,  entitled  to.     819 

Product  of  mind,  subject  of  ownership.     655 

to  what  degree 980 

joint  authorship 981 

ti'ansfer  of ^ 982 

effect  of  publication 983 

rights  of  subsequent  authors 984 

private  writings   985 

Profit  and  loss,  sh.ares  of  partners  in.. .  2403 

Profits.     See  Community  Proi'euty. 

by  partner  belongs  to  firm,  when 2435 

special  partner  may  draw  share  of  ....   2494 
renunciation  of  future  partnership  ex- 
onerates partner 2417 

insurable  interest  in 2664 

measure  of  indemnity  for  loss  of,  under 

insurance 2733 

los3    of,    under   insurance,    when   pre- 
sumed     2440 

Promise    of    marriage,    when    neither 

bound ,  . .       02 

damages  for  breach  of 3319 

Promise.     See  Contr.\cts. 

of  adult  to  pay  necessaries  furnished 

parent 206 

false,  when  fraudulent l.")72,   1710 

representation  in  insurance  as  to  future  2j74 

to  answer  for  third  person 2794 

to  accept  bill  of  exchange,  when  accept- 
ance    3197 

Promissory  no':e.     See  Xegotiaele  In- 
struments; Protest. 

defined 3244 

payable  generally,  when  due 3244  n. 

a])parcnt  maturity 3132 

bill  of  exchange,  when  deemed 3245 

bill  of  exchange,  when  converted  into  3246 

provisions  applicable  to .3f  17 

delay  in  presentment 3243 

Proof  of  consent  to  marriage 57 

of  illegitimacy 195 

of  nuncupative  will 12S9 

of  destruction  or  cancellation  of  will  ,    1292 

of  ownerslnp,  limler  may  require 1866 

of  loss  of  freight 2202 . 

of    instruments   for  record.     See   Ac- 

knowli:u(;ment. 
of  loss  under  insurance.    See  Insur- 
ance. 

Property,  the  word  "  property  "  defined      14 ' 
of  husl)and  and  wife,  may  be  used  to 

support  children 143 

of  husband  and  wife,  contracts  concern- 
ing      158 

of  husband  and  wife,  in  joint  tenancy, 

etc 161 

of  husband  and  wife,  rights  of 177 

community,  defined 164,  687  ' 

comn:iuuity,  resort  to  for  alimony 141 1 


634 


INDEX. 


BEO. 

Propertyj  power  of  husband  ovBr, 1 72 

dispositiou  of,  on  divorce 14&-143 

distribution  on  deatli  «  f  wife 1401 

,      dirftribution  on  death  of  husband 140i? 

ecp.uate,  may  bo  used  for  support  of 

child 143 

of  husband,  when  liable  for  alimony.  141 

separate,  of  husband,  defined 1G3 

of  iiusband,  when  not  liable  for  wife's 

debts 170 

separate,  of  wife,  defined 102 

wife  may  dispose  of  without  consent 

of  husband 1G2 

w'lien  liable  for  support  of  husband. .  176 

not  liable  for  iiusbaud'a  debts 171 

of  wife,  husband  cannot  select  home- 
stead out  of  1230 

of  child,  parent  no  control  over 202 

when  liable  for  parent's  support. .. .  201 

corporations  may  acquire .SGO 

in  general G34 

nature  of G.")4 

ownership  in 655,  G7S 

either  real  or  personal 637 

real 65S 

personal 603 

always  has  owner 609 

what,  owned  by  state 670 

who  may  own 671 

aliens  inheriting,   when  must  assert 

claim 672 

interest  in 678 

interests  in 701,  702 

interests  absolute 679 

qurJi;ied , 680 

several 681 

joint 683 

partnership 684 

ill  common 085,  686 

present 6S9 

future  interests 690 

perjjetual  interest 691 

rights  of  posthumous  children  iu  . . .  698 
future  interests  pass  by  transfer  .699,  709 

future  interests  none,  unless  specified  703 
future  interests,  how  defeated. .  .739,  740 

when  not  defeated 741,  742 

future  interests,  vested 694 

future  interests,  contingent 695 

future  interests,  contingent,  may  be 

alternative 696 

future  interests,  contingent,  not  void 

because  improbable 697 

interests,  perpetual 691 

interest,  limited 692 

conditional  ownership 707 

restraints  upon  alienation. .  .711,  715,  716 

accumulations  of  income 722 

income  of,  defined 748 

wiiat  disposed  of  by  will 1270,  1274 

acquisition  of 1000,  1001 

PerKOiial,  defined 14,  003 

interests  in,  are  estates 701 

recordinjij  inventory  of  wife's 165 

transferring  contract  for  delivery  of.  1459 

fi.do  of ]  7.39 

flelk-r's  lien 3049 

real  property,  when  deemed 1338 

Bale  of  unclaimed  baggage  for  storage 

charges,  etc .' 1862 

Jieal,  term  includes  what 14 

what  contracts  respecting,  minor  r;an- 

not  make 33 

defined . . , , , , , ,  658 


•so* 
Property,  ReaJ^  interests,  how  denomi- 
nated      701 

application   of  interests   iu,   to  per- 
sonal jiropcrty 702 

limitation  on  leases  of  certain. . .  .717,  718 

general  provisions  concerning 1^ 

estates  in 701 

estates  of  inlieritance  in 7G2 

fee-si utple  estates  in 762 

fee-tail  abolished 703 

contingent  remainders 704 

freehold   765 

chattels  real,  or  estates  for  years.. . .     705 
chattel  interests,  or  estates  at  will. .     705 

estates  for  life  of  third  person 766 

future  estates 767 

estates  in  reversion 703 

estates  m  remainder 769 

creation  of  remainders,  future  and 

contingent 773 

limitation  of  successiveestatesforlife.     774 

remainders  on  estate 775   773 

estate  for  life,  remainder  of 777 

burdens  and  servitudes 801,  802 

rights  of  owners 829' 

rights,  in  respect  to  water 818,  830 

how  used  by  tenant  for  life 818 

how  need  by  tenant  for  years  or  at 

will 819,  820 

remedies  of    grantees  for  rents  and 

reversions  of 821 

remedies  of  lessor  against  assigns  of 

lessee 822; 

of  lessee  against  assigns  of  lessor. . . .     823 

on  leases  tur  life,  for  rent 824 

rent,  how  recovered 824,  825 

injury  to  inheritance  in 826 

boundaries  by  water 830 

boundaries  by  ways 831 

lateral  and  subjacent  support 832 

trees 833 

obligations  of  owners 840 

tenant  for  life,  duties 840 

coterminous  owner,  rights 841 

uses  and  trusts  in 847 

when  beneficiary  has  no  interest  in. .     803 
when  beneficiary  may  dispose  of  his 

interest 863 

when   beneficiary  cannot  dispose  of 

his  interest 867 

powers  in  relation  to 876 

ownership  of  instruments  affecting 

title 994 

tenant  may  remove  what  fixtures. .  .   1019 
words  of  inheritance  not  necessary  to 

pass  fee 1 072 

fee-simple  title  when  presumed  to  pass  1 101. 
subsequently  acquired  title  passes  by 

operation  of  law 1 106 

lien  of  seller 304ft 

lieu  of  purchaser 3050 

when  deemed  personal,  after  testa- 
tor's death 1338 

agreement  for  sale  of 1731,  1741 

agreement  for  sale,  what  covenants 

required 1733 

form  of  such  covenants 1 734 

Proposal,  to  contract,  acceptance 1582 

to  contract,  acceptance  must  be  abso- 
lute    1585 

what  is  deemed  acceptance 1584 

qualified  acceptance 1585 

revocation  of 1586 

revocation,  how  made 1587 


INDEX. 


665 


8E0. 

Protection,  against  restraint  and  injury, 

etc 43 

to  1  lersonal  relations 49 

■\vliat  force  used  in  seeking 60 

Protective  associations,  act  for  forma- 
tions of 2863 

I'r^tosts  of  bill  of  exclianfje 

notice  of  dishonor  of  foreign  bill  only 

by  notice  of - 3225 

by  %r  bom 3236 

how  made 3227 

•where 3228 

•when 3-2-29 

how  excnscd 32^50 

niitice  of,  how  given 3231 

efTfct  of  waiver 3232 

3*rovision3,  implied  warranty  on  sale  of  1775 

Prosy,  voting  bj',  at  corporate  meetings  312 

Public,  grant  intei-preted  against  grantee  1009 
contracts   interpreted    against   j^rivate 

party 1 654 

deceit  upon 1711 

nnisance ^ 34S0 

Publication,  libel  by  ?inprivileged 45 

privileged,  detined 47 

of  assessment  notice 336 

delinrjnent  assessments 339 

produce  of  mind,  effect  of 983 

notice  of  dissolution  of  partnership. . . .  2453 

of  names  of  partners,  when 24G6 

change  of  name  of  partnership 24C9 

certiiicate  of  special  partnership 24S3 

aiiidavit  of 24S4 

notice  of  dissolution  of  «pecial  partner- 
ship   .' 2509 

Public  enemy.    See  Enemy,  P>ublic. 

Puling  at  auction  a  fraud 1797 

Purcbase,   buyer    at    auction   may   re- 
scind, when  pulEng  practice;! 1797 

trustee  cannot  enforce  claim  adverse  to 

trust,  obtained  by 2263 

ceriilicates  of.     See  Cektificxte^J. 
at  sales.     See  Sales. 
Purchase  money,  priority  of  mortgage 

for 2S98 

lien  for. .  3046 

.Purchaser,     See  Saij^b. 

at  auction  sale  of  delinquent  stock ....  342 

wlicn  corporation  may  be 343 

of  fraucliiseof  corporations,  powers  and 

duties 389,  390 

heirs  ijf  tenant  for  life,  when  take  as.  779 

rcsultieg  trust  not  to  prejudice 856 

omiisiou   to  daclare   trust   in  convey- 
ance    869 

grant,  how  far  conclusive 1107 

instruments  void  against  subsequent..  1227 
instruments    not    void  against  subse- 

q;icnt  1228 

grant  by  person  having  power  of  revo- 
cation operates  as  revocation,  when.  1229 

ri:;iits  of,  f ro;n  devisee 1364 

■when   sale   of  personal   property   void 

against 3440 

when    mortgage   of   personal   property 

voiil  ajainst  subsequent 3440 

pledgee  cannot  be,   from  pledgor,  ex- 
cept by  direct  dealing 3010 

of  real  property,  lien 3050 

trancfei  s  void  against 3440 

lien  of  seller  or  bu^-er  not  valid  against 

subseiiuent 3(Mi3 

^Quality,  implied  warranty  of  goods  sold 

.by. sample 170b 


SEO. 

Quality,  implietT  •warranty  on  executory 

sale 1767 

implied  warranty  by  manufacturer .  1768-177(y 

of  goods  inaccessible  to  buyer 1771 

general 1773 

domestic  provisioiis 1776 

damages  for  breach-  of  warranty  of  ... .  3313 

Quantity,  implied  warranty  as  to 1773- 

Questions   cf   la"W    and   fact,    aetual 

fraud,  a  question  cf  fact 1574 

Quietenjoyment,covenantruns  with  land  1 4G3- 
executory  contract  o-f  sale  binds  seller 
to  insert  covenant  of 173.^ 

•     implied  in  hiring 1927,  1955- 

Railroads,     extortion    and    discrimina- 
tion   491,  s. 

may  borrow  money  and  issue  Ijonds. . .     456- 
act  to  enable  completion  of  roads  —  .491,  s. 

foreign  may  operate  in  this  state 491,  s. 

corporations  to  operate  roads,  when.  .491,  s. 
rates  of  fare  on  street 501,  s. 

Railroad  corporations.    See  Corfora- 

IION.S. 

Jlailroad  oommissioners,  act  creating. 491,  s. 

RaU3om  of  ship  and  cargo 23S0^ 

Rate  of  interest,  street-railroad 501 

supervisors  to  iix  water,  for  irrigation,  1422 

annual 1916 

legal 1917,  1918 

on  judgments 1920 

bottomry 3022 

respondentia 3039 

Ratiacation  of  voidable  eoutract,  when 

15SS,  2.110 

partial,  when  total 23 1 1 

when  void 23  ^Z 

to  prejudice  of  third  person  forbidden  2313 

rescission 23 1 4 

Real  estate,  defined —  14 

brokers'  authority 1 624 

brokers'  commissions ,2307  n. 

as  property.     See  Property. 

Reason  ceasing,  rule  should  cease 3510 

bciii'^  the  same,  rule  tlie  same 3511 

Receipts,   party    performing  oldigation 

entitled  to  written 1499 

in  policy  of  insurance 2593- 

warehouse  and  wharfinger's,  act  eon- 

ccrning 1855 

Receiver  to  enforce  alimony 140 

Reconveyance,  cancellation  or  redeliv- 
ery of  grant,  no 105S 

by  grantee  on  non-performance  of  con- 
ditions suljsoquent 110^ 

Recorder,    certificate    of  marriage  filed 

with   . 74 

declaration  of  marriage  tiled  with 77 

inventory  of  wife's  property  tiled  with.  16i> 
to  keep  books  for  recording  semi  annual 

statements  of  banks 321 

fees  for  reconling  bank  statement.^.. . . .  321 
selection  of  right  of  way  by  cotporation 

transmitted  to 371 

city  or  county,  nwy  take  acknawle<lg- 

mcnt  of  instruments 1 181 

instruments  recorded  inollice  of  county  1 1 G9 

duties  of  county 1172 

certificate  of  forinatioa  of  special  part- 

ncrshi])^  filed  with 24SO 

notice   of   dissolution  of   special    i>art- 

nersiiip  filed  with 2509 

entry  of  satisfaction  of  moi'tgage  made 

in  presence  of 2940 

])er.ii»i!al  iiKH'tgc^o  recorded  with  what,  2959 


663 


INDEX. 


BEO. 

Recording,  marriajr©  certificate 74 

marriage  declaration 75 

inventory  of  wife's  separate  property..     1G5 

eflfect  of 166 

marriaj^e  settlements i  79 

effect  of ISO 

by-lawa  of  corporation 304 

of  semi-annual  statements  of  banks. . .     321 
of  conveyances  made  by  public  oliicers  1095 

what  subject  to 115S 

iudi-'ments  subject  to  without  acknowl- 
edging  1159,1204 

letters    patent    without    acknowledg- 
ment    1160- 

prerequisites 1161 

how  effected 1162 

transfers  in  trust  for  benefit  of  creditors  1 1G4 

in  M'liat  office  made 1 169 

when  complete 1 1 70 

books 1171 

duties  of  officer 1172 

transfers  of  shi[)s 1173 

legality  of  prior,  not  affected 1205 

as  e\idenc« 1206 

as  notice 1207 

where  and  to  whom  notice 1213 

priority  of,  establishes  priority  of  right  1214 

of  revocation  of  power 1216 

effect  of  want  of 1217 

instruments  affecting  homesteads 1244 

homestead  declaration 1264,  1268 

notice  of  appropriation  of  water 1415 

certiticate  of  formation  of  special  part- 
nership    2480 

renewal  of  special  partnership 2485 

dissolution  of  special  partnership 2509 

power  of  attorney  to  execute  mortgage  29.13 

assignment  of  mortgage 2934 

effect 2935 

satisfaction  of  mortgage 2940,  2941 

mortgages  in  general   2952,  29G3 

mortgage  of  personal  property 2959 

mortgage  of  property  of  common  car- 
rier    2961 

separate  mortgagees  of  personal  prop- 
erty  2962 

mortgage  of  property  in  transit 2960 

Records  of  bank  statements 321 

Recrimination.     See  Divorce. 

Redelivery  of  grant  does  not  retransfer.  1058 

Redemption  of  franchise  by  corporation     392 
of  person  liaving  interest  in  property 

subject  to  lien 2903 

of  inferior  lienor 2904 

how  made 2905 

contract  in  restraint  of,  void 2889 

right  of  foreclosed 293 1 ,  2967 

Re-entry  right,  when  and  how  exercised 

790,  791 

right,  transferable 1046 

Referee,  testimony  in  divorce  cases  be- 
fore       130 

Reformation  of  contract.    See  Revis- 
ion. 

Registration.     See  Recording. 

Reinsurance  defined 2646 

what  communicated  on 2647 

presunied  against  liability 2648 

original  insured  no  interest  in 2649 

Relationship,  husband  and  wife  cannot 

impair  legal 159 

degrees,    how  computed 13S9-1393 

of  half-blood,  right  to  succeed i;)94 

succession  through  illegitimate,  when.   13S8 


Relatives,  right  of  defense  of 43,  50 

may  protect  child  from  parental  abuse  203 
legacies  to,  when  chargeable  with  debts 

of  testator 1361 

when  illegitimate,  taken  by  succession.  1383 
of  half-blood  succeed  alike  wilh  whole 

blood 1394 

alienage  of,   does   not   affect   right   of 

succession 1404 

Releass  of  future  interests 690 

of  debtor  by  substitution 1531 

by  creditor,  how  made 1541 

effect  of  general 1 542 

of  joint  debtors 1543 

Relief.     See  Damages;  Injunctions. 

in  general 3274 

compensatory 3274 

specific  and  preventive,  limitetl  to  spe- 
cial cases 336^ 

from  forfeiture 33S9 

Religious,     social,     and     benevolent 
corporations.      See  CoiiPORATiONS, 

KlXDS   OF. 

Remainders,  defined 76& 

certain,  valid  764 

contingent,  on  prior  remainder  in  fee. .     772 

when  created 77^ 

upon  successive  estates  for  life 775 

on  term  of  years 77ft 

for  life  upon  term  of  years 777 

upon  contingency 77S 

what  title  vests  under 779 

construction 780 

ownci-  may  sue  for  injury  ta inheritance.  826 
death  of  devisee  before  testator 1344 

Removal,  of  guardian 255 

oliicer  of  cor[)oration 310' 

thing  bought,  after  delivery 1784 

of  trustee  for  holding  adverse  interests.  2232 
of  principal  in  guaranty  from  state. . . .  2802 
of  mortgaged  personal  projtcrty. .   2965,  2966 

Rent.     SeeLANDLORD  ani>  Tknant. 

right  of  taking,  as  servitude 802 

i-emedie j  for  recovery  of 821 

remedies  by  assignees 822,     823 

under  lease  for  lifo 824 

dependent  on  life,  when  recoverable. . .  825- 
payment  to  grantor,  when  binding  on 

grantee 1111 

covenant  for  payment  runs  with  land . .    1463 

term  of  hiring  indicated  by 1944 

acceptance,  when  renewal  of  lease 1945 

when  i)ayable 1947 

forfeited  by  letting  room  in  parts 1950 

Renunciation,  of  partnership  exonerates 

partner,  when 2417 

of  partnership,  effect 2418 

Repair,  owner  of  estate  for  life  to 840 

tenant  for  life  to,  fence 840 

coterminous  owners  to,  fence 841 

owner  for  voyage  to,  ship 965 

borrower,  when 1889 

hirer,  when 1 929 

landlord,  when 1941 

tenant,  at  expense  of  landlord,  when. .    1942 

letter  of  personal  property 1955 

hirer  of  personal  property,  at  expeuse 

of  letter 1956. 

ship-master 2376' 

Repeal,  of  former  statutes 20* 

by  implication 20  n. 

Reports,  ollicial  proceedings,  privileged.       47 

of  railroad  companies 491'' 

appraisers  of  homestead 1252 


INDEX. 


667 


8E0. 

Representation,  who  succeed  by  right 

of 1403 

authority  of  agent  to  make 2311) 

in  insurance.     Slc  In.sdrance. 

Rescission,  by  iniiior 35 

by  person  not  entirely  without  under- 
standing    39 

of  novation 1533 

third  person  may  enforce  contract  be- 
fore   15.59 

consent  not  free,  subject  to 15G6 

■  c.vctinguishes  contract 1CS8 

of  contract,  in  what  cases  allowed...,  1GS9 

not  barred  by  stipulation IG^JO 

how  elTected 1G91 

of  sale  for  non-payment  of  price ]  7  !9 

by  buyer,  if  seller  refuses  inspection. .  17S5 

by  Ijuyer,  on  breach  of  warranty 17S0 

by  buyer  at  auction,  when 1797 

of  ratilication 23 14 

of    insurance    for    concealment,   when 

, 2.')G2,  25G9 

of    insurance  for    false   representation, 

when 2,-)S0 

of  insurance,  when  exercised 23S3 

for  violation  of  warranty,  etc 2G08 

for  fraudulent  valuation 27.")0 

for  altei'atiou  increasing  risk 2753 

of  alteration  of  obligation  doea  not  re- 
store guaranty 2821 

stonjjagc  in  transit  is  not 30S0 

of  contracts,  when  ailjudged 3  i&G 

for  mistake 3407 

renuii-emcnts  on  aljudging 3408 

Residoaso,  husband  to  select 103,  15G 

if  husband  selects  unlit,  wife  not  bound  104 

gua,r<lian  t)  select 218 

requisites  in  regard  to,  in  divorce 12S 

proof  of  actual,  required  in  divorce. . . .  129 

right  of  parent  as  regards,  of  child. ...  213 

RexduG,  remainder  on 775 

of  testator's  estate,  devise  of 1332 

of  testator's  estate,  bequest  of 1333 

Respondentia,  defined 303G 

owner  may  hypothecate  by 3937 

master  may  hj'pjt'iccatc,  when 3338 

law  of  bottomry  a;;plicable  to 30.39 

obligation    imposed    upon    ship-owner 

by 3040 

Restoration,  necessary  on  rescission  of 

contract 1G91 

of  thing  wrongfully  obtained 1712,  1713 

of  deposit,  terminates  duties  of  deposi- 
tary    1 8 17 

of  tiling  found 1871 

lien  extinguishe  1  by 2913 

Restraint,  right  of  protection  from  bod- 
ily  J-.  43 

of  marriage,  when  void   710,  IG/G 

of  alienation,  w'uen  void 711,  71G 

of  trad  J,  contract  when  void 1G7.3 

of  trade,  on  sale  of  good-will 1G7  t 

of  trade,  on  dissolution  of  partnership  1G75 
of  rig!it  of  redemption   from  lien,  not 

allowed 2SS9 

Retroi3tiv3,  co  les  not  3,  G 

Return,  of  appraisers  of  homestead \2'>2 

when  excused 29 1 8 

of  premium  of  insurance,  when...  ,2G17-2o21 

Reversion,  of  land  granted  to  corpora- 
tions   477 

estate  in,  defined 7GS 

owner   may  sue   for   injury  to   inheri- 
tance    82G 


BEC. 

Revision,  of  contracts,  when ...  .3399 

presumption  as  to  intent  of  parties. . . .   3400 

]irineipl('S  of 3401 

speeitio  enforcement  after 3402 

Revocation,  consent  to  separation  sub- 
ject to 101 

of  condonation , 121 

of  gift  in  view  of  death 1151 

of  power  of  attorney 1216 

I)Ower  of,  when  deemed  executed.  1229,  1230 

of  proposal  to  contract 15SG 

of  proposal  to  contract,  how 15S7 

of  trust 2280 

of  continuing  guaranty 2S15 

of  wills.     See  Wills. 

Right  of  way,  granted  to  corporations.     474 

limitation 475 

selection,  how  certified  to 473 

as  casement 801 

as  servitude 802 

Rights,  accrued   prior  to,   code  not  af- 
fected  G,  20 

person  of  unsound  mind  cannot  waive.       40 

minor  may  enforce  by  civil  action 42 

of  personal  relation 49 

subject  of  ownership C55 

in  water 1410 

may  be  waived 3513 

must  not  be  used  injuriously 3514 

Riot,  involuntary  deposit  in  case  of 1815 

duty  of  depositary 1816 

Risks,  insured  against,  to  be  stated 2587 

commencement  of 261G  n. 

altering  thkig   covered   by   tire  insur- 
ance, increasing 2753 

altering  thing  not  increasing 2754 

what  insured  against  in  marine  insur- 
ance    2655 

stipulation  of  personal  liability  under 
bottomry  independent  of,  void 3024 

Rivers,  navigable.     See  Water. 

Saiiiors.     See  Seamen. 

Sa13.     See  Purchaser;  Transfer. 

stock  for  delinquent  assessments 341 

when  corporations  may  purchase 343 

franchise  of  corporations  under  execu- 
tions     383 

not  to  affect  powers  of,  of  corporations.     391 

transfer  of  personal  prnperty  by 1136 

title  to  personal  prooerty  passes  by ... . 

1140-1142 

of  homestead  on  execution 1254-1256 

seller  of  good-will  may    agree   not   to 

caiTy  on  same  business 1674 

defined 1721 

subject  of,  must  be  what    1722 

seller  in   executory   conti'act  to   insert 

certain  covenants ...    1734 

rights  and  obligations  of  seller 1748 

seller  as  depositary  before  delivery. . . .    1743 

in  respect  to  I'esalo  o-r  rescission 1749 

when  buyer  to  pay  price 1784 

when  buyer  to  remove  thing 1784 

riglit   of    buyer  to  inspect   warranted 

goods 1 785 

rij'it  of  buyer  on  breach  of  warranty. .    17S6 

of  deposit  in  danger  of  perishing 18.37 

of  thing  found 18G9,   1870 

by  factor  for  reimbursement 2027 

on  credit  by  factor 202S 

liability  of  factor  upon,  under  guaranty 

eomniission 2029 

of   iierishabK)  property  for  freightage. .    2204 
of  delinquent  mining  property 2520 


668 


INDEX. 


BEO. 

Bale,  extinction  of  lien  by 2910 

puwer  conferrfil  l)y  mortgage 2926 

power  mukr mortgage,  how  executed  2927 
of  pletlgod  propeity  by  pledgee. 3000-3002 

of  i>lud  ,cd  property  by  uuetiou 3005 

on  ikuiaiul  of  jilcdgor 3007 

Buipliis,  to  whom  paid 3008,  3009 

judici;il,  (f  pledged  property 301 1 

of  real  property,  lieu  of  vendor 3047 

wlieii  (Iceiiied  waived 3047 

extent  of  lieu  of  vendor  of  real  prop- 
erty    8049 

Beller  of  personal  jjroperty 3049 

rescission  of,  uotaQected  by  stoppage 

in  transit 30S0 

Agrpement  for,  delined 1 720 

to  sell 1727 

to  buy 1728 

to  sell  and  buy 1729 

what  subject  of 1730 

of  real  property 1731,  1733,  1734,  1741 

of  personal  property 1739 

to    be    ill  writing    or    partially  per- 
formed      1 741 

not  revocation  of  will 1301 

By  aitrtion  <leliued 1792 

when  complete 1793 

withdrawal  of  bid 1794 

written  conditions  not  to  be  modified  1795 

when  absolute ' 1793 

by-bidding  a  fraud 1797 

auctioneer's  memorandum  binding..    1798 
authority  of  auctioneer  from  seller. .   2302 

Delivery  on  demand 1 753 

where  m.idc 1754 

expense  of  transportation 1 755 

when  made 1 753 

notice  of  election 1 750 

must  follow  directions  of  buyer 1 757 

of  personal  projierty 1 759 

Warrant tj  delined 17G3 

not  iinplietl ] 7G4 

of  title  to  personal  property 1705 

on  sale  by  sample 1 703 

of  merchandise  not  in  existence 1708 

of    manufacture    against    latent    de- 
fects    1769 

of   manufacture   for  particular   pur- 
poses     1 770 

when  thing  cannot  be  examined  by 

buyer I77I 

of  trade-marks 1772 

other  marks 1 773 

on  sale  of  written  instrument 1774 

of  provisions  for  domestic  use 1775 

on  sale  of  good-will 1 773 

on  judicial  sale 1777 

efTect  of  general  warranty 1778 

Salvag3,  in  ease  of  capture,  deduction 

from  seamen's  wages  for 2000 

who  entitled  to 2079,  2725 

Samplo,  sales  i)y I7O6 

Satisfaotion.     See  Accord. 

of  judgment  against  corporations 383 

of  jadj;ment  against  homestead 1241 

of  legacies  and  gifts 1307 

what  operates  as 152.?,    1524 

of  recorded  mortgage 2938,  2941 

penalty  f(jr  refusing,  of  mortgage 2941 

Savings  and  loan  corporatibus.    See 

Ci)Upoi!Ari().\><,  Kinds  of. 
Saving  1  b.ink,  deposits  in,  may  be  col- 
lected by  surviving  husband  or  wife, 
when 579 


no. 
Sea,  perils  of,  defined 2199 

carrier  not  liable  for  damages  caused 

by  perils  of 2197 

Seal  of  officer  taking  proof  or  acknowl- 
edgment    1193 

corporate,  or  official,  how  affixed 1028 

private,  abolished 1029 

Seamen.     See  JShips  and  Shipping. 
may  make  nuncupative  will,  when. . . .   1289 

power  of  ship-master  over 2037 

defined 204i> 

how  engaged 2050 

how  discharged 2050 

cannot  be  compelled  to  ship  on  unsea- 

wurthy  vessel 2051 

wages  of,  not  lost  by  agreement 2051 

restrictions  on  contracts  with 2053 

wages,  when  depend  on  freightage  ....  2054 

wages,  when  begin 2055 

M'here  voyage  broken  up 2056 

when  wrongfully  discharged 2057 

wages,  when  do  not  depend  on  freight- 
age    2058 

not  lost  by  wreck 2058 

when  prevented  from  rendering  service  2060 

must  be  provided  for  in  sickness 2001 

when  personal  representatives  take. . . .  2002 

when  forfeited 2003 

liability  of,  for  injury  to  ship 2003 

must  not  ship  goods  on  own  account  . .   2004 

lien  of 3056 

Ssa'wrorthiness,   seamen   not  bound   to 

sail  when  reasonable  doubt  as  to .   2051 

delined 2082 

implied  warranty  of,  in  insurance 2081 

at  what  time  n.ust  exist,  under  insur- 
ance   2683 

what  required  to  constitute 2084 

degrees  of,  during  voyage 2085 

for  purpose  of  insuring  cargo 2087 

Sacretary  of  state,  proceedings  for  con- 
tinuance of  corporations 287 

preiecjuisites  before  issuing  certificate 

of  incorporation 295 

when  must  issue  certificate  of  incorpo- 
ration       296 

Security  for  alimony 140 

power  to  sell  in  mortgage  deemed  part 

of 858 

contracts  of,  •«  hen  called  bail 2780 

held  by  creditor  or  co-surety,  surety 

entitled  to  benefit  of 2849 

held    by   surety,    creditor   entitled   to 

benefit  of 2854 

by  way  of  lien  (see  also  Lien) 2872 

for  what  lien  may  be 2884 

for  obligation,  does  not  prevent  direct 

enforcement 2890 

of  mortgagee  not  impaired  by  person 

bound 2929 

by  way  of  pledge.     See  Pledge. 

for  third  person,  pledge  as 2992 

by  way  of  bottomry  (see  also  BoT  ro.Mi'.v)  3017 
by  way  of  respondentia  (see  aiso  Ke- 

spondentia) 3036 

indorser  having,  not  entitled  to  notice 

of  dishonor  31 57 

by  assignee,  for  benefit  of  creditors. , .  3407 

Seduction,  protection  from 49 

damages  for 3339 

Seleorion.    See  Option. 

Sslf-defsnse,  right  of 43 

Separation,  by  consent,  not  desertion. ,       99 
and  iutent  to  desert,  not  always  co-exist    100 


Es^DEX. 


eG9' 


SEC. 

Separation,  consent  to,  revocable 101 

liusbaui.1  and  wife  may  agree  to  iin me- 
diate   l-'jf) 

mutual  consent  sufficient  consideration.  1  GO 

custody  of  cliild  in  case  of 21-4 

Servant.     Se;e  Master  and  Servant. 

Services.     See  Wages. 

of  legitimate  unmarried  minor,  father 

entitled  to    197 

of  illegitimate  unmarried  minor,  mother 

entitled  to   _ 200 

parent  may  relinquish,  of  child 211 

•when  apprentiee  may  recover  for 270 

of  depositary IS.'iO 

employee  in  gratuitous,  duties 1975 

gratuitous,  when  relinquished l'J7G 

without  employment 2028,  2079 

of  carrier,  otiier  than  caniage 2203 

contract  for,  cannot  be  specilically  en- 
forced   3390 

Servient    tenement.      See  Easements 

AND  SeUVITCDICS. 

Servitudes.     See  K^sements  and  Ser- 
vitudes. 

Several  defined 14 

ownership Gbl 

Ships  and  shipping.  See  Carriage; 
Common  Cakuiers;  Seamen;  Sea- 
worthiness; Wrecks. 

defined 900 

appurtenances  of 1)01 

foreign 902 

domestic 9G3 

controversy  between  part  owners . . .     OGl 
who  responsible  for  repair  and  sup- 
plies       9G  J 

registry,  enrollment,  and  license....     906 

collision  from  breacii  of  rules 971 

losses  caused  by  collision,   how  ap- 
portioned      973 

transfer  of  interest  in,  in  writing.. . .  11.35 
recording  ti'ausfer,  where  provided  for  1 173 
charter-party  defined  and  regulated.  1959 
wiien   not  seaworthy,   seamen   need 

not  sail 2051 

chip-master  may  procure  repairs  and 

supplies 2.376 

ehip-master  may  hypothecate,  when.  2.377 

ehip-master  may  sell,  wlieu 2373 

abandonment     terminates     master's 

power 23S1 

Bhip-master  [)ersoualIy  liable  for  what 

contracts 2.3S2 

liability  of  master  for  negligence  of 

persons  employed 23S.3 

obligation  of  ship-owner  to  owner  of 

cargo 23S5 

part  owners  not  partners 2.')98 

seawortliincss  deiincd 2GS2 

laws  of  mortgage  do  not  apply  to. . .  2978 

liypotliccation  under  bottomry 30!  7 

lien  on 3009 

as  vessels.     See  Vessel.^. 

Jar  JO,  sacrifice  for  safety  of 2143 

sacinlice  borne  ratably 2151 

how  valued  on  general  average 2153 

ehip-master  agent  for  owners 2375 

obligation  of  owner  to  owner  of 2365 

ship's   manager  not  power   to  pur- 
chase   2.3S9 

seaworthiness  for  purpose  of  insuring  2GS7 
insurance  on,  when  voyage  broken 

up 2707 

ship-master  may  sell,  when 2379 


BEO. 

Ships  and  shipping,  Cargo,  ship-master 

uiay  hypothecate,  wlien 2;;77,  3038 

liypotliecaiion     under    respondentia 

30.30-3038 

owner  entitled    to   repayment   from 

ship-owner  under  respondentia. .  .   3040 
insni'ance.     See  Insurance. 

Maiiaiji-r,  defined 2070 

duties 2071 

not  entitled  to  compensation,  when.  2072 

])owers 2.388 

limitation  of  powers 23S9 

ITcixU'r,  may  be  charterer 1959 

how  appointed 2034 

must  lie  on  board,  when 2035 

take  pilot,  when 203G 

power  over  seamen 2037 

power  over  passengers 2033 

power  to  impress  private  stores 2039 

must  not  abamlon  ship  without  advice  2040 

duties  on  abandoning  ship 2041 

when  n.it  trade  on  own  account  ....  2042 

care  and  diligence 2043 

autlioi'ity  to  make  jettison 2150 

general  agent  for  owner 2373 

may  borrow  on  credit  of  owner 2374 

on  behalf  of  owner  of  cargo 2375 

power  to  make  contracts 2376 

to  hypothecate 2.377 

to  sell  ship 2.378 

to  sell  cargo 2379 

authority  to  ransom  ship   2380 

power  terminates  on  abandonment  of 

ship 2381 

personal  liability  for  contract 2382 

liability  for  acts  of  persons  cmjiloycd.  2383 
responsil)iIity  for  negligence  of  pilot.  23S4 
when   may  hypothecate  ship   under 

bottomry .3019,  3020 

when  freightage  under  bottomry 3021 

lien  of 3055 

Owiirrx,  controversy  between,  how  de- 
termined       902 

master  appointed  by 2035 

when  manager,  called  what 2070 

when  manager,  not  entitled  to  com- 

])ens;ition 2072 

ship-master  general  agent  for 2.373 

shii)-master  may  l>orrow  on  credit  of.  2374 

contracts  of  sliip-master  bind 2376 

ehip-master  may  sell  ship  witiiout  in- 
structions, when 2373 

contract   to   ransom   ship,    by   ship- 
master, binils 2.380 

power  to  bind,  ceases,  when 2381 

responsible   for  negligence   of    ship, 

when 2.384 

obligation  of.  to  owner  of  cargo 2385 

ship's  nianager  cannot  bind,  to  insur- 
ance     2.389 

lias  insurable  interest 2059 

value  of  insurable  interest 2001 

insurable  interest  in  expected  freight  2GG2 
may  hj-pothecate  ship  upon  bottomry  3013 
when  i-cpay  owner  of  cargo  under  re- 
spondentia   3040 

Voyaijr,  owner  of  ship  for,  liable  for  re- 

])airs  an  I  supplies 9G5 

power  of  ship-master  during. .  .  .2037-2040 

insured,  how  determined 2092 

deviation,  defined 2G93 

when  ])roper 2095 

wlien  improper 2098 

effect  of  ou  insurance 2097 


670 


INDEX. 


Sicnatitre  flpfincrl 14 

of  ollicoi-  taking  acknowledgment 1 193 

in  indor.seiiiuiit   vi    negotiable    instru- 
ment  3109,  3110 

Singular  number  includes  plural 14 

Sldll.     Sec  Cake. 

injury  arising  from  want  of  ordinary..   1714 
borrower  for  use  must  exercise  what . .    It88 

employee  must  use  reasonable 1983 

employee  must  use  all  he  possesses. . . ,    1954 
voluntary  depositary  must  use  reason- 
able    2078 

carrier  of  persons  for  reward  must  use 

reasonable • 2100 

Slander,  defamation  efTected  by 44 

defuied 4(3 

Societies.     See  Corporations. 

Soldier  may  make  nuncupative  will. .  ..   1289 

Solemnization  of  marriage.    See  Mar- 

kia(;k. 
Specific    performance    of    obligations 

compelled  when 3;"1S4 

not  unless  mutual 3.3S6 

presumption  iu  favor  of,  as  to  real  prop- 
erty   33S7 

presumption   against,    as    to    personal 

property 3.3SS 

enforced  in  favor  of  party  not  bound, 

when 33SS 

enforced,   notwithstanding  penalty   in 

contract 3.3S9 

not  enforceil  for  personal  service 3.">;)0 

contraL't  to  accept  arbitration S.'JOO 

act  which  party  cannot  perform S.'SDO 

agreement  to  procure  act  of  third  person  3!'.l0 

indefinite  contract S.'jyO 

party  not  having  adequate  considera- 
tion    3301 

party  as  to  whom  contract  is  not  fair. .  3391 

party  not  freely  consenting 3.391 

party  in  default 3392 

of  agreement  to  buy,  not  enforced  when 

title  doubtful 3.394 

persons  claiming  under  party  bound  to 

perform 339.'> 

may  be  enforced  after  revision 3402 

Specific  relief,  only  in  special  cases. ...  3306 

how  given 33(57 

not  given  to  enforce  penalties 3.309 

Speed,  earlier  must  travel  at  what  rate.   2104 
Sports,  right  of  conducting  lawful,  on 

land  as  easement 801 

Statement  of  banks,  what  to  be  pub- 
lished and  recorded 321 

Statute  of  frauds.     See  Okal   State- 

MENT.S. 

what  contracts  to  be  in  writing. .  ^. . . .  1024 

sales  of  personalty ]  7.S0 

sale  of  realty   ]  74 1 

agent's  authority,  when  to  be  in  writing  2309 
Statute  of  limitations.      See  Limita- 
tions. 
Statutes  in  derogation  of  common  law, 

how  construed 4 

effect  of  code  on 5    20 

minor  cannot  disailirm  contract  made 

by  authority  of  special 37 

insane   person    cannot    make   contract 

_  without  express  authority  of. 33 

rights  granted  by,  subject  of  ownership  G35 
Stock,  aa.ount  subscribed  before  incor- 
porating    293 

oath  of  olHcer  to  subscription  of 29.5 

holder  of,  deliued 298 


■so. 

Stock  entitled  to  how  many  votes 301 

majority  necessary  to  adoption  of  by- 
laws      301 

majority  necessary  to  election 307 

two  thirds  necessary  to  amcml  by-laws     304 
two  thirds  necessary  to  removal  of  of- 
ficers       310 

majority  constitutes  quorum 312 

dividends  not  matle  from  capital 309 

debts  not  beyond  sub.scribtd 309 

capital  not  increased  or  diminished,  ex- 
cept  309,  359 

on  dissolution,  divided 309 

book  and  notice  of,  by  banks 321 

certificates  of,  how  issued 323 

transfer  of 324 

transfer  of,  held  by  married  women . .     325 

transfer  of,  of  non-residents 326 

hypothecated,  how  voted 322 

sale  of  delinquent 341 

jurisdiction  over 340 

may  buy  its  own,  when 343 

disposition  of,  where  corporation  pur- 
chaser       344 

action  for  recovery  of,  sold   for  delin- 
quent assessments 347 

Stockholders.     See  Corporations. 

Stoppage  in  transit,  right  01 3076 

who  may  exercise  the  rigiit 3076  n. 

transfer  of  bill  of  lading .3076  n. 

transit  when  ended 3078 

how  efTected 3079 

does  not  rescind  sale 3080 

Storage.   See  Deposit;  Wareuocsemex. 

dclined 1851 

degree  of  care  required 1852 

compensation 1853 

how  terminated 1851,   1855 

sale  of  unclaimed  baggage  for 1862 

tinder  may  put  thing  on 1868 

when  carrier  may  place  freight  on 2121 

StrEmger,  attornment  to,  void 1948 

as  third  person.     See  Tuird  Per.son. 

Streams.     See  Water. 

ownership  of  land  newly  formed  by. . .   1014 

land  newly  formed  in  navigal)le 1016 

land  newly  formed  in  unnavigable. . . .    1017 
islands  formed  by  division  of   1018 

S  reams,  navigable.     See  Water. 

Street     railroad     corpora  tl  jns.     See 
Corporations. 

Subagent.     See  Ac.ency. 

not  responsible  to  principal 2022 

when  agent  respousii)le  for 2.350 

when  not 2.351 

Subpoena,  acknowledgment  by  olfii  er..   1201 

Subrogation,  riglit ot  inferior  lienoi- to.   2204 

Subscriptions,  when  b-n'rig 1005  n. 

Subsequently  acquire*  title  passi;s  by 

operation  of  law 1 106 

passes  by  will 1312 

Substitutes,  responsibility  of  eni])loyce 

for 1989 

Succession,  rights   of   children    of  an- 
nulled marriage 84 

alien,  taking  by,  when  to  assert  claim.     (572 

])Ostlmmou3  children . . . . » 093 

future  interest 099 

property  acquired  by 1(X)0 

words  of,  unnecessary  to  puss  fee 1072 

liability  of  persons  acquiiing  property 

by 1115 

child  of  testator  l)oni  after  >vill  takes 
by 1300 


INDEX. 


67J 


BEO. 

SUGCeSBlon,  child  of  testator -nnprovideil 

for  b}'  will  takes  by,  when 1307 

property  of  iuteatate,  how  disposed  of.    1.3.>8 

dellned 13S3 

real  and  personal  property  pass  by 1384 

to  whom  property  passes  by 1384 

distribution  cf  property  received  by. . .    13SG 

illegitimate  child  takes  what .    1387 

mother  of  illegitiinato  child  to  take  by.  1388 
computation   of   Jjgreea   in   deternun- 

in^r 13S9-1393 

exclusion  from  by  advancement 1395 

relatives  of  half-blood,  when  take 1394 

J'usband    takes    common   property   on 

death  of  wife 1401 

husband    and   wife,    divorced    and   in 

fault,  not  to  take  by 1401 

•wife  takes  one   half  common  property 

on  death  of  husband 1402 

by  representation 1 403 

aliens  may  take  by 1404 

when  state  takes  by 1405,   1406 

•when     state     takes     by,    subject     to 

charges 1407 

persons  taking  by,  liable  for  debts  of 

decedent    1408 

change  of  interest  by,  does  not  affect 

insurance 1550 

Successors,    of  decedent  may   dispute 

legitimacy  of  issue 195 

liable  fjr  obligations  of  decedent 1403 

in  equal  degree  take  equally 1394 

of  employer,  when    must     compensate 

e!np:oyce 1998 

duty  of  trustee  as  to  appointment  of  2"2G0 
Sugg'  stions,  false,  when  fraudulent.  1372,  1710 

Sunclny,  a  holiday 7,  8 

StiperHiiity,  does  not  vitiate 3537 

Sjupcrliunian    cause    excuses    non-per- 
formance      1511 

innkeeper  not  responsible  for 1859 

carrier  not  responsible  for 2194 

no  one  responsible  for 3520 

Supervijors,  action  in  behalf  of  child, 

for  ] parental  abuse 203 

provi.sion  for  support  of  orphan  out  of 

Iimpeity  of  intestate  parent 205 

consent  to  apprenticeship,  when 2G5 

m:iy  l)in(l  mit  apprentices 2G8 

Support  to  laud,   right  of   more   than 

natur;d,  as  easement SOI 

rlgiit  to  lateral  and  subjacent 832 

Surety.     8ec  SKcaRiTY. 

iuui^irporations  U)r  giving  bonds 286,  s. 

relea-io  of  principal,  releases 1543,  2819 

indemnitor,  how  far  entitled  to  rights 

of 2779 

■when  person  indemnifying  is 2770 

delined 2831 

guarantor  and  surety  distinguished.  .2831  n. 
api'arent  principal  may  show  he  is. . . .   2832 
lialnlity  cannot  exceed  terms   of  con- 
tract            2836 

not  altered  by  judgment  against  prin- 
cipal   2833 

cliscl)arged   by  offer  to   perform   prin- 
cipal obligation 2839 

interpretation  of  contract 2837 

bou-  exonerated 2838,  2845 

rights  of,  same  as  guarantor's 2844 

right  to  com[)el  creditors  to  sue 2845 

to  (Hiinpc  1  principal  to  perform 2846 

to  compel  principal  to  repay  him 2847 

to  compel  co-sureties  to  contribute ....  2843 


BEO. 

Surety,  to-  enforce  remedies  of  creditor 

against  principal 2843 

to  benefit  of  securities   held   by  cred- 
itor or  co-surety 2849 

to  have  principal's  property  taken  first  2850 

rights  oi  creditor  against 2855 

indorser  for  accommodation   has  rights 

of S122 

Surplus,  conveyance  in  excess,  by  owner 

of  life  estate HOS 

of  advancement  liy  testator  during  life- 
time, effect  of 1396 

execution  by  agent  in  excess  of  author- 

ity,  when  liinds •  •   —>•>■» 

Surprise,  contract  made  by,  not  specili- 

cally  enforced 3390 

Surveyor- general,  selection  of  right  of 

way  l)y  corporations  sent  to 473 

Suspension,  of  power  of  alienation. .  .715,  733 

of  ownership  of  term  of  years 770 

of  power  to  alienate  sul:)jcct  of  trust.  . .      771 
of  policy  of  insurance  by  transfer  of 

thing. : 2593 

Tall,  estates  in,  abolished 703 

to  what  extent  valid 7G4 

Taxes,  owner  of  life  estate  must  pay 840 

covenant  for  payment  of.  runs  with  land  14G3 
Technical  v/orda     See  Word.s. 

iiow  cnnstrued 13,  1327,  1323 

Telegraph,  obligations  of  carrier  by 2161 

carrier  by,  must  use  utmost  care . .   2102 

common  carrier  by,  must  transmit  in 

what  order 2207,  2203 

peu.altv  for  refusing  or  postponing  mes- 

sage ^-oj 

Telegraph  companies.    See  Coupora- 

TIuNS. 

Tenant.     Sec  Laxdlokd  axd  Tenant. 

Tenants  in  common,  husband  and  wife 

may  hold  as 161 

when  several  devisees  take  as 1350 

Tender.     See  Oi  fkr  of  Performa>ce. 

Testament.     See  Wills. 

Testator.     See  Wills. 

Testimony.     Sec  L^videxce. 

Thing  in  action.    See  Chose  in  Action. 

Third    person,    when    may    recover   for 

necessaries  furnished  wife 174 

necessaries  furnished  child 203 

•when  not  recover  for  necessaries  fur- 
nished child   209 

contracts  for  benefit  of 1559 

estates  for  life  of _._    706 

remainder  on  estates  for  life  of 775,  776 

effect  of  transfer  where  consideration 

paid  by 85-2 

delivery  in  escrow  made  to 1057 

grant  may  inure  to  benefit  of 1085 

may   enforce   contract   made   for    own 

benefit 155;' 

when  voluntary  trustee 2243 

•when  must  see  to  application  of  trust 

property 224  4 

trusts  for  benefit  of •'  2250 

ratification  to  prejudice  of,  not  allowed  23  b3 

responsibility  of  agent  to 2343 

agent  must  deliver  to,  when 2344 

liability  of  partner  to 2442 

•who  liable  as  partner  to _•  •   2444 

information  of    belief   of,   material   in 

marine  insurance 2G70 

property  pledgeil  for  benefit  of K)92 

contract  to   procure  act  by,    not   spe- 

^^  ciQcally  enforceable 3390 


072 


DfDSX. 


8E0. 

Third  person,  not  to  'be  prejudios^^  hy 

ie\  itdou  of  contract,  wheu -  . . .   J^.IOO 

act  of,  not  to  piejiulice 3.)"20 

wlio  must  suHur  by  act  of 3o4;5 

Threats,  JcsiTtiou  causetl  by,  as  grouml 

of  divorce 08 

will  prociireil  l>y,  voir! 1272 

consent  to  contract  ebtained  through, 

voidable loG7,  1GS9 

menace,  defined    1  ■>70 

by  trustee  to  obtain  advantage 2228 

by  ])artncr  to  oi)tain  advantage 2411 

Ticket.     See  Fakk. 

of  railroad  entitles  passenger  to  stop 

over 490 

failure  of  corporation  to  provide 490 

penalty  for  retnsiii?  ]>as?!a5e 490 

Tide- •water,  owner  of  land  bounded  by..     S30 

Time,  coiiiputing 10,  14 

of  peiiod  of  minority 26 

of    commencing   action   for  nullity  of^ 

marriage S3 

as  to  certain  causes  for  divorce 107 

of  commencing  actions  for  divorce. . . .      127 

of  creation  of  interest,  what 749 

in  which  alien  non-resident  must  assert 

claim  to  take  by  succession G72 

of  delivery  of  grant,  presumption....    1035 

words  in  vviil,  relate  to  w.iat 1333 

at  which  obligation  performed. . .  1490,   1 191 
not  of  essence,  unless  expressly  declared  1492 

of  performance  of  contract 1057 

of  performance,  may  be  extended 1G93 

entire,  of  servant,  belongs  to  master. .  2013 
to  which  representation   in   insurance 

refers 2577 

for  traveling  to  record  personal  mort- 
gage   2963 

does  not  confirm  void  act 3539 

Title,  inventory  of  wife's  property  as  no- 
tice of 1G6 

ownership  of  instruments 994 

of  property,  how  acquired 1000,   1001 

by  occupancy 1006,   1007 

by  accession 1013 

by  transfer 1 039 

redelivery  of  grant  does  not  revest. . . .    1058 
fee-simple,  when  presumed  to  pass. . . .   1105. 
Bubaequently  acijuired,  passes  by  oper- 
ation of  law 1 1 06 

subsequently  ac(iuired,  passes  by  will.    1312 

what,  passes  by  transfer 10S3,   1 105 

to  highway,  passes  by  transfer 1112 

to  pei-3on;il  property,  what  passes  by 

transfer 1 1 40 

nnder  executory  agreement  of  sale. . . .    1141 
when  buyer  acquires  better,  than  set- 
tler has 1142 

instrumiMits  evidencing,    declared    by 
judgment,  how  proved  for  record.    . 

1159,  1204 

by  homestead  declaration 1205 

to  homestead,  how  reconled 12G3 

by  'devise 1311 

by  spccilic  tlcvise  or  legacy 1363 

to  thing  in   performance,  when  passes 

to  creditor 1,102 

warranty  of,  to  personal  property 17G5 

loan  for  use  <loes  not  transfer 1885 

loan  for  exchange  transfers 1904 

to  freight,  by  transfer  of  bill  of  1  ding 

2127,  2128 

implied  warranty  of,  to  personal  prop- 
erty, authority  to  agent  to  sell 2323 


Title,  lien  does  not  transfer 2»88 

to  property.     See  Pkopkkty. 

Title-deeds,  ownership  of 994 

Tolls,  by  wagon-road  corporations 514 

penalty  for  taking  unlawful 514 

not  on  public  highways 515 

rates  to  be  posted  over  gate 516 

toll  {.atherer  may  detain  person  until 

paiil 517 

not  to  detain  person  unnecessarily .     518 

penalty  for  avoiding 519 

right  of  taking  as  servitude 802 

Torts.     Sec  W hongs. 

Trade,  contracts  in  restraint  of 1G73-1G73 

Trade-marks,  subjects  of  ownership 655 

what  may  be  appropriated  as 991 

implied  warranty 1 772 

generic  or  descriptive  name 991  n. 

geogra])hical  name 9'Jl  n. 

individual  name 99 1  n. 

sale  of 991  u. 

infringement  of 991  n. 

Transfer,  of  ser\'ice3  and  custody  of  child.     197 

of  stock,  how 324 

of  stock  of  married  woman 325 

of  Ptoek  of  non-resident 326 

future  interests  may  pass  by C99 

effect  of,  where  consideration  paid  by 

third  person 853 

omitting  to  declare  trust  in BCD 

thing  in  action  subject  to 954 

product  of  mind  subject  to 982 

good-will  subject  to 99S 

property  acquired  by 1000 

defined 1059 

voluntary,  defined 1040 

voluntary,  consiileration  not   neces- 
sary to  validity 1040 

what  subject  of 1044 

mere  possibility  not  subject  of 1015 

rigiit  of  re-entry  subject  of 104S 

adverse  claim 1047 

agreement  not  to  transfer  insured  in- 
terest, when  void 2599 

of  life-insurance  policy 25G4 

of  thing   insured  does   not  transfer 

policy 2593 

of   interest  in  partnership  property 

dissolves  partnership 2450 

Modf  of,  oral 1 052 

by  grant 1053 

Effect  of,  to  vest  title 1083 

upon  incidents  of  thing  transferred. .    1084 

in  favor  of  stranger 1085 

of  personal  property  bj'  sale 1 140 

Unlair/iil  ainL  fraudideid,  instruments 

voiil  against  i)urchasers 1227 

not  void  against  purchaset'S  having 

notice,  unless  fraud  mutual 1223 

power  to  revoke,  when  executed.  1229,  1230 

other  provisions  concerning 1231 

prpsumcd,  when 3440 

when  creditor  can  avoid 3441 

question   of   fraud   iu   respect   to,  a 

question  f)f  fact 3442 

Of  oh  i(jal,ion,%  burden,  wheu  tiansfera- 

ble 1457 

right  arising  out  of  obligation 1453 

of  obligation  running  with  land 1460 

0/])Pr.son(il  pruper/i/,  when  in  writing.    1135 

by  sale 1 1 38 

of  title  under  sale 1 140 

under  executory  agreement 1 141 

effect  of,  under  sale 1142 


INDEX. 


673 


BEO, 

Transit,  mortgaged  property  in,  where 

deemed  located 2067 

stoppjige  ill 8076 

stoppage  in,  how  efiFected 3079 

sti  ippage  ill,  effect  of 30S0 

Treagure-trove.    See  Findkr. 

•Tree-,  owmi-ahip  of 833,  834 

damaKes  for  injuries  to 3346 

Trespass,  personal  property  acquired  by.  1031 
on  personal  property,  liability  of  tres- 
passer     1 033 

Trifles,  law  disregards 3333 

Trusts,  suspension  of  power  to  alienate 

subject  of 771 

limited  to  those  specified 847 

must  be  in  writing 852 

resulting,  limited 8.j3 

resulting,  not  to  prejudice  purchasers  .  806 

express,  for  what  purposes  allowed   . . .  857 

when  liable  to  creditors 859 

vest  whole  estate  in  trustees 863 

author  of,  may  prescribe  to  whom  es- 
tate shall  belong 864 

estate  of  grantee  subject  to 865 

estate  left  in  author  of 866 

powers  over,  of  beneficiaries 867 

omitting  to  declare  in  conveyance 869 

ex])resscd  in  creation  of  estate,  acta  in 

breacli  of,  void 870 

when  to  cease 87 1 

interest  in,  how  transferred 1 1 35 

transfer  of  property  in,  when  recorded  1 1 64 

voh'ntary,  defined 2J16 

involuntary 2217 

parties  to 2218 

for  what  object  created 2220 

who  deemed  trustee  under 2219 

voluntary,  how  created  as  to  trustor  . .  2221 

how  created  as  to  trustee 2222 

obligations  of  trustee.     See  TnrsTKES. 
obligations  of  trustor.     See  Ti:rsTKES, 
obligations  of  third  persons  in  respect  to  2243 
thiid  person,  when  bound  to  see  to  ap- 
plication of  property  in 2244 

defined 2250 

how  created 225 1 

when  court  is  trustor  under 2252 

how  declared 2253,  2254 

termination 2279 

not  revocalile   22S0 

trustee  may  be  discharged  when 22S2 

efi'ect  of  extinction  of   2282 

declaration  of  must  be  obeyed 2558 

Trustees,  on  dissolution  of  corporations  400 

whole  estate  vests  in,  when 8(i3 

when  grant  to,  deemed  al>solute 8G9 

acts  of,  iu  breach  of  expressed  trust, 

void 870 

estate,  when  ceases 87 1 

powers  of,  imperative 932 

effect  of  right  of  selection  by,  of  trust 

power 933 

construction  of  trust  powers 934,  935 

of  power,  effect  of  death  of 936 

defined 2218 

what  constitutes 2219 

beneficiary  must  be  indicated  by  trust  2221 

trust,  how  created  as  to 2222 

involuntary,  wrongful  holder 2223 

involuntary,  fraudulent  gainer 2224 

must  act  in  best  faith 2228 

not  to  use  property  for  own  funds 2229 

not  take  part  in  transactions  adverse 

to  beneficiary 2230 

Civ,  Code — 43 


Trustees,  not  take  advantage  of  bene- 

ticu.ry    _ 2231 

not  assume  trust  adverse  to  interest  of 

beneficiary 2232 

must  disclose  adverse  interest  to  bene- 
ficiary   2233 

when  guilty  of  fraud 2234 

presumption  against 2235 

mixing  funds  witli  own,  how  far  liable  2236 
measure  of  lialjility  for  breach  of  trust 

....      2237,  2238 

responsible  for  acts  of  co-trustee,  when  2239 
when   third   person   becomes  involun- 
tary  2243 

payment  to,  when  sufficient 2244 

when  person  acquiring  trust  property 

becomes 2250 

assent  of  trustor  and,  creates  trust. . . .  2251 

appointed  by  court,  who  trustor 2252 

declaration  of  trust  by  trustor. .  .2253,  2254 

must  fulfill  purpose  of  trust 2258 

use  ordinary  care  and  diligence 2259 

procure  trustworthy  successor  on  dis- 
charge     2260 

invest  trust  fund,  how 2261 

pay  interest,  when 2262 

cannot  enforce  claim  against  trust  fund.  22G3 

powers  of,  as  agent 2267 

cannot   act   without  assent  of  co-trus- 
tee   2268 

discretionary  power  of,  how  controlled.  2269 

involuntary  ri_;hts  of 2275 

trustor  cannot  revoke  trust,  when 2280 

office,  how  vacated 2281 

how  discharged 2282 

how  removable 2283 

appointment  of  new 2287 

survivorsiiip 2288 

superior  court,  when  to  appoint 2289 

declar  ition  of  trust  must  be  obeyed. . .  2558 

insurance  liy,  how  made 2589 

Unjertaiuty  in  will,  how  interpreted  ..    1272 
Undue  influeuoe,  will  procured  by,  void  1272 
contract  obtained  through,  voidable.. 

1567,  1689 

defined 1575 

thing  gained  by,  held  in  trust 2224 

presumntion  of,  against  trustee 2235 

Unfai''  advantage.     See  Advantage. 
Unlawful   condition  in  instrument  ren- 
ders void 709 

condition  iu  obligation  void 1442 

alternative  in  contract,  effect  of 1451 

contracts.     Sjc  Co.n'TR.\cts, 
transfers.     See  Tkansfkrs. 
Unrecorded    instruments.     See  Bona 

FlUK  I'aKCllA.'^KR.'^. 

valid  as  between  parties  and  those  hav- 
ing notice 1217 

Unsound  mind.     See  Persons  of  Un- 
sor.Nu  Mi.Ni). 

Usage,  meaning  of  words  fixed  by 1644 

employee  to  conform  to 19S2 

agent  to  conform  to 2349 

Uses    a-.d    trusts.     See    Cuaritable 

U.sKs;  Tun.sTs. 
Usury.     See  Intkrest. 
Valuable  consideration.     See  Consid- 

KKAI'TON. 

Value  defined H  n. 

Vendor,  lien  of ^046 

vendee's  lien 3050 

when  deemed  to  waive  lien 3047 

extent  of  lieu e      ,••  3048 


674 


INDEX. 


BSO. 

Vendor    and   vendee.     See   Convbt- 

ANCES;    I'rRCHASEK. 

Vested  interest,  future,  defined 694 

Vigilant,  preference  given  to  the 3527 

Voluntary  transfer,  define  J 1040 

consideration  not  necessary 1040 

Voyage.     See  Shipping. 
Wages.     See  Services. 

of  minor,  when  paid  to  him 212 

of  seamen,  when  begin 2055 

depend  on  freightage,  when 2054 

depend  on  freightage,  wiien  not 2058 

when  voyage  broken  up 2056 

when  wrongfully  discharged,  etc 2057 

when  prevented  from  rendering  service  2(J60 
wlien  personal  representatives  entitled 

to 2062 

not  lost  by  special  agreement 2052 

of  seamen,  lien  for 3056 

Wagon-road  corporations.     See  Cor-\ 

POKATIONS. 

Waiver,  person  of  unsound  mind  can- 
not lose  rights  by 40 

of  objections  to  offer  of  performance. . .  1501 

of  option  as  to  delivery  of  goods 1756 

of  communication  in  insurance 2568 

of  notice  of  sale  of  pledge<l  jiroperty. . .  3003 

of  demand  by  pledgor  or  debtor 3004 

of  presentment  and  notice 3159 

of  protest 3100 

of  provisions  of  Civil  Code  by  stipula- 
tion between  parties 3268 

TVar  dissolves  partnership 2450 

Warranties,  lineal  and  collateral,  abol- 
ished    1115 

Warehouseman.     See  Storage. 

act  cmicerning  receipt  of 1855,  s. 

carrier's  liability  as 2120 

carrier's  liability  ceasing  on  delivery  to  2121 
Warranty.     See  Qdality;  Qcantity. 

covenant  of,  runs  with  land 14G3 

execu  tory  contract  binds  seller  to  insert  1 733 

detined 17G3 

none  implied  in  sale,  except 1764 

of  title  to  personal  property 1765 

on  sale  by  sample 1 766 

where  buyer  relies  on  seller's  judgment  1767 

by  manufacturer 1768-1770 

of  gootls  inaccessible  to  buyer 1771 

of  trade-marks 1772 

of  other  marks  on  goods 1773 

on  sale  of  written  instrument 1774 

of  provisions  for  domestic  use 1775 

on  sale  of  good-will 1 776 

on  judicial  sale 1777 

effect  of  general 1778 

right  of  buyer  to  inspect  goods  on  sale 

with 1785 

right  of   buyer  to   rescind   in   case  of 

breach  of 1 786 

implied,  of  money  exchanged 1S07 

implied,  in  authority  to  agent  to  sell 

personal  property 2323 

of  authority 2o42 

agent  has  power  to  give 2323 

auctioneer  has  power  to  give 2362 

implied  in  negotiable  instrument 3116 

damages  on,  of  quality  of  personal  prop- 
erty      3,^13 

damages  on,  of  title  to  personal  prop- 
erty    3.112 

damages  on,  of  agent's  authority 3318 

in  insurance.     See  Lnhitkanci:. 
Wftler.    tjee  Streams. 


■za 

Water,  casement  in,  where  furnished  to 

land  sold  by  company 552 

right  of  taking,  as  easement 801 

right  of  receiving  and  discharging  on 

land,  as  easement 801 

boundaries  by 83D 

rights  to,  how  acquired 1410  , 

doctrine  of  appropriation  generally. . .  1410  n. 

rights  of  appropriation 1410  n.,  1414  n. 

transfer  of  right  of  appropriation 1410  n. 

appropriation  must  be  for  use 1411 

abandonment  of  right  to 1411  n. 

point  of  diversion  may  be  changed. . . .   1412 

changing  the  use 1412 

may  be  turned  into  natural  channels  . .   1413 

priority  of  right  to 1414 

extent  of  appropriator's  use 1414  n. 

notice  of  appropriation 1415 

diligence  in  appropriation 1416 

"completion"  defined 1417 

doctrine  of  relation  applied  to 1418 

forfeiture  of  right  to 1419 

rights  of  present  claimant 1420 

rights  of  riparian  owners 1422 

act  to  promote  irrigation 1422,  s. 

act  regulating  sale  of  water.  .548,  s.,  552,  s. 

Wster  and  canal   corporations.     See 
Corporations,  Kinds  of. 

Water  commissioners,  act  to  promote 

irrigation 1422 

Way,  right  of.     See  Right  of  Way. 

Ways,  boundaries  by 831 

Weakness  of  mind.     See  Persons   op 
Unsound  Mind. 
unfair  advantage  of,   rendei's>  contract 

voidable 1567,  1573 

WTiarf    corporations.     See    Corpora- 

TioNs,  Kinds  of. 

Wharfinger,  act  concerning  receipts  of .  1855,  a, 

Widovy,  legacy  to,  when  chargeable  with 

debts  of  testator 1361 

interest  on  legacy  to,  when  accrues  . . .   1369 
iidieritance  by,     See  Scccession, 

Wife.    See  Husband  AND  Wife. 

Wills  include  codicils 14 

when    person   of    unsound   mind    may 

make 40 

devisee  may  dispute  legitimacy  of  issue     196 

future  interest  may  pass  by 699 

power  may  be  acquired  by 1000 

liabilityof  persons acquiringproperty by  1115 

effect  of,  upon  gifc 1 152 

gift  when  treated  as  legacy 1 153 

who  may  make 1270 

procured  by  fraud,  may  be  denied  pro- 
bate     1272 

revocation,  obtained  by  fraud,  void. . .   1272 
married  woman  may  dispose  of  separate 

property  by 1273 

what  may  pass  by 1274 

who  take  by 1275 

written,  how  executed 1276 

olograpliic  will  defined 1277 

witness  must  state  residence 1278 

conjoint  or  mutual 1279 

competency  of  subscribing  witness. . . .    1280 

conditional 1281 

gift,  to  subscribing  witness,  when  void  1282 

creditors  competent  witnesses   1282 

witness,  when  entitled  to  devj^'e  by. ..    1283 

void,  unless  duly  executed 1285 

eftect  of  codicil 1287 

power  to  devise,  how  executed  by  terms 
of 1330 


IXDEX. 


675" 


WlllSi    execution  and    constmclion    of 

prior,  not  affected  by  code 1375 

mortgage  ou  property  devised,  how 

satistied 2040 

child  born  after,  takea  share 1306 

childr&a  unprovided  for,  ■when  suc- 
ceed   1307 

share  of  child  bom  after,  out  of  what 

taken 130S 

death  of  devisee  before  testator 

1309,  1343,  1344 

vrhen  devise  does  not  lapse  by  death 

of  devisee 1310 

devises,  how  construed    1311 

Bubsequently  acquired  title  passes  by.   1312 
restriction    on    power  to   devise  to 

charitable  use 1313 

change  of  interest  by,  does  not  affect 

insurance 2556 

Interpretaiion  and  eject  of,  according  to 

intention 1317 

confined  to  written  will 1318 

rules  to  be  observed 1319 

several,  to  be  taken  together 1320 

all  parts  considered  in 1 3"2 1 

latter  part  controls 1321 

distinct  clause  not  affected  by  indis- 
tinct    1322 

ambiguity  or  doubt 1323 

words  taken  in  ordinary  sense 1324 

words  to  receive  operative  construc- 
tion    1325 

to  avoid  intestacy 1326 

•     technical  words 1 327 

technical  words  not  necessary 1328 

word  "heirs"  not  necessary  to  pass 

fee 1.329 

power  to  devise,   how  executed  by 

terms  of  will 1330 

of  devise  of  real  property 1331 

of  devise  of  residue  of  real  property  1332 
of  devise,   as   referring  to  time    of 

death 1333 

*' heirs,"  "relatives,"  "issue,"  "de- 
scendants," etc 13.34 

of  words  of  donation  and  limitation.    1335 

to  what  time  words  refer 1336 

of  devise  or  bequest  to  a  class 1 337 

of  directions  for  conversion 1338 

when  posthumous  child  takes  under 

will 1339 

mistakes  and  omissions 1 340 

wl'.en  devises  and  bequests  vest 1341 

when  cannot  be  divested 1342 

death  of  devisee  or  legatee 1 343 

interests  in  remaintler  not  affected. . .   1344 
conditional  clevises  and  bequests. . ..    1345 

condition  precedent,  what , 1  .■]46 

effect  of  condition  precedent 1347 

conditions     precedent     when     per- 
formed    1.348 

conditions  subsequent,  what 1.349 

devisees,  etc.,  take  as  tenants  in  com- 
mon    1.349 

advancements  when  ademptions. .  ..    13')1 

by  what  law  governed 1370 

Legacies  ami  tjeneral  jrrovi.fions,  nature 

and  derivation  of  legacies 1 357 

specitic 1 3")7 

demonstrative 1 3  i? 

annuity 1 3.')7 

residuary 1 357 

general 1  .■!.'>7 

order  of  sale  in  case  of  intestate 1  .'^58 


■Wills,   Lpgncies  and  r/fn^rnl  provisions, 
property,  how  applied  to  payment 

of..... 1359 

how  applied  to  payment  of  debts.  . . .   1360 
to    kindred,    chargeable    only   after 

others 1361 

abatement  of 1362 

specific,  title  passes  by 1363 

Possession  of,  how  obtained. . . .  1363,  1365 
eirs'  conveyance  good  when 1364 

for  life,  inventory  to  be  given 1365 

of  income,  when  accrues 1366 

may  be  satisfied 1367 

when  due 1368 

interest  on 1369 

construction  of  these  rules 1370 

executor  according  to  the  tenor 1371 

power  to  appoint  is  invalid 1372 

executor  not  to  act  till  qualified 1373 

execution  and  constioictiou  of   prior 

wills 1375 

the  law  of  what  place  applies 1376 

liability    of    legatees    for    testator's 

debts 1377 

Revocation  of,  procured  by  fraud  may 

be  annullecl 1272 

of  mutual  will  may  be  effected 1279 

void,  unless  duly  executed 1285 

of  written  will 1292 

evidence 1293 

of  duplicate 1295 

by  subsequent  will 1296 

subsequent,   does    not  revive    prior 

will 1297 

by  marriage  and  birth  of  issue 1298 

by  marriage  of  testator 1299 

by  marriage  of  testatrix 1300 

contract  to  sell  property  disposed  of.   1301 
incumbrance  on  property  disposed  of .   1302 

conveyance,  when  not 1303 

conveyance,   when 1304 

revokes  codicils 1305 

after-born  child,  unprovided  for,  to 

succeed 1306 

children  unprovided  for.    1307 

share  of  unprovided  for  child 1303' 

advancement  to  child 130& 

death  of   devisee,   being   a   relative, 

during  testator's  life-time 1310 

provisions  relating  to,  apply  to  what 

wills 1374 

Nuncupative,  need  not  be  in  writing. . .   1276 

how  executed 1288 

requisites  to  make  valid 1289 

proof 1290 

probate 1291 

Witnesses.    See  Evidence. 

testimony  when  privileged 47 

recording   of    instruments    proved    by 

other  than  subscribing 1198 

oath  of  credible,    necessary  in   taking 

acknowledgments 1185 

subscribing,  to  be  personally  known  to 

officer  taking  proof 1 196 

to  ^irove,  what  1 197 

handwriting  of,  when  proved 1198 

subscribing,  to  prove,  what 1199 

to  will,  necessary 1276,   1289 

to  will 1278 

to  will,  cannot  take  under  will 1282 

when  may  take  as  much  under  will  as 

by  succession 1283 

nf>t  necessary  to  olographic  will 1277 

Women.    Pee  Fk,mai.e. 


€76 


INDEX. 


VTords.    Seo  Deftnttions;  Technical 
Wok  us. 
giving  joint  authority,  how  construed      12 

construction  of 1 3 

of  inlieritance,  notnecessary  topass  fee  1072 

Interjirctalioii  of,  (loul)tful I0G8,   1  G.')4 

taken  in  onUnary  sense.. 1324,   1644 

technical,  not  necessary  in  will 1328 

to  receive  operative  construction  in 

will 1325 

technical,  Iiow  construed 1327,   1G45 

to  he  given  some  meaning  if  possible  1326 

in  will,  to  what  time  refer 1336 

of  donation  and  limitation  in  will. .  ,   1335 
used  in  codes.     See  Codes. 
Worliinanship,  ownership  of  property 

formed   \>y  materials  and 1028 

Wrecks  and  wrecked  property,  invol- 
untary deposit  in  case  of  shipwreck..  1815 

duty  of  depositary  in  such  case 1816 

wafjes  of  seamen  not  lost  by  shipwreck  2058 
Writing.     See  Oral  Statem£:«T3. 

marriage  settlement 178 

consent  to  appienticesbip 266 

trusts  in  real  property. 852 

ownership  of  private  communications  in    9'J  I 

transfer  without,  when 1052 

transfer  in,  calleil  grant 1053 

transfer  of  real  properly  to  be  in 1091 

instruments  in,  prima  facie  import  con- 

Bideration 1096 

transfer  of  what  personal  property  to 
beia 1135 


raa 
Writing,  will 1276 

nuncupative  will  need  not  be  in 1288 

uon-negotiable  instrument  in,  transfer- 
able   1459 

debtor,  on  payment,  entitled  to  receipt 

in... 149ft, 

release  in 1541 

contract  prevented  by  fraud  from  being 

put  in,  enforced  when 1623 

what  contracts  to  be  in 1624 

supersedes  oral  negotiations  concerning 

contract 1625 

contract  in,  takes  effect  when 1626 

how  far  disregarded  when  erroneous. ..   1640 
intention  of  parties  when  ascertained 

from '. 1639 

in  contract  controls  printed  parts 1651 

contract  in,  how  altered 1698 

implied  warranty  on  sale  of  executory 

instrument  in 1774 

carrier's  obligations  not  altered  except 

by 2174 

guaranty,  when  to  be  in 2793 

power  of  attorney  to  execute  personal 

mortgage 2959 

Wrongs,  minors  and  persons  of  unsound 

mind  liable  for 41 

he  who  consents,  suffers  no 3515 

no  one  can  be  permitted  to  take  advan- 
tage of  his  own 3517 

remedy  for  every 3523 

law  does  not  interpose  between  parties 
equally  in 352Aj 


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